HL Deb 27 July 1964 vol 260 cc939-50

5.18 p.m.

LORD SILKIN rose to ask Her Majesty's Government whether they will now say what action, if any, they propose to take about the High Court judgment on the Bognor Regis Urban District Council compulsory purchase order. The noble Lord said: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. This Question follows the one I put last Monday to the Government regarding the Bognor Regis Urban District Council compulsory purchase order. This does not sound a very exciting affair, but I should like to remind your Lordships what the question is all about. It relates to a compulsory purchase order made by the Bognor Regis Urban District Council for the acquisition of land for the purpose of coastal protection. The order was made by the Council, it was objected to by the owners, and there was a public inquiry.

At the public inquiry evidence was given for the Urban District Council, and in due course the inspector reported. He reported very strongly against affirming the order. In the course of his report he mentioned a number of facts which were considerably detrimental to the Council—some of which I referred to in my Question last Monday: that the Bognor Regis Urban District Council had put forward proposals…which constituted an abuse of power and a flagrant invasion of private rights and, secondly, that the council had supported its case at the public inquiry…by publishing a document which contained much that was manifestly false to their knowledge". Those were the findings of the inspector, and in due course the report of the inspector went to the Minister. In spite of those facts, in spite of this report, the Minister confirmed the order.

Not unnaturally, the appellants, the people against whom the compulsory purchase order had been made, went to the court, and the court quashed the order and found as a fact what I stated just now as to the abuse of power, flagrant invasion of private rights, and that the Council had sought to bolster up its case by publishing a false document. The court not only found these facts, but they severely criticised the Minister himself for having confirmed the order. What the Judge said was that this was apparently giving ministerial blessing to a course of conduct by a local authority which public policy surely demanded should be severely discouraged.

I asked this Question last week, and I specifically asked the Government to confirm what I had said in my Question, and as to what action they were proposing to take in the matter. I felt that it ought not to rest on the public condemnation of the Minister, but that some action on the part of the Government was called for. The noble Lord, Lord Hastings, replied to my Question. He replied at very considerable length, and I hope I am not doing him an injustice when I say that the substance of his reply—it is in Hansard—was that the Minister was quite right in confirming the order; he still thought it was right on the merits, and that was all there was to be said. I believe he said that he had read the remarks of the Judge; but apparently no action on the part of the Minister was called for. He still thought he was right in confirming the order.

I just want to remind noble Lords—there are not many here, but those who are—of what is the principle of compulsory purchase. Compulsory purchase puts in the hands of those who exercise it, mostly local authorities, a tremendous power of taking away private persons' property. It is true that the local authorities are liable to pay compensation, but that is not always the point. Most people who possess land want to enjoy it and want to go on using it, and it is only in extreme cases of overriding public interest that we are justified in making a compulsory purchase order. It must be clearly established that it is in the public interest. It must also be a principle of any compulsory purchase order that the land to be acquired is to be no more than is absolutely necessary to carry out the purpose of the acquisition. An authority must not, under the guise of requiring land for one purpose, make an order for more land in order to use it for another purpose, which was what was done in this case.

Then, the owner must be entitled to object and to have his objection properly and fully considered at a public inquiry. I think this was done in this case. And, finally, the Minister must give an honest and impartial decision after receiving and considering the inspector's report. I am not suggesting for a moment that the Minister is under an obligation in all cases to agree with the inspector; of course not. The inspector is merely there to report to the Minister what his own findings are. But I think everyone who has been concerned with public inquiries must recognise that the report of an inspector is entitled to the greatest respect and the Minister must not lightly disregard his report. In this case the report extended to eigheen pages: it was a very full report. It was made after an inspection of the site and a very lengthy inquiry with full investigation of the facts.

I speak with some experience of these matters, and I recognise that no Minister can possibly at first hand come to a decision on every appeal. He must leave things to his officers; he must be guided by them, and in the great majority of cases the Minister never hears about an appeal and never knows what the decision is. There are some thousands of appeals every year, and obviously the Minister cannot possibly be expected to know about them all. What I do say is that where there is a matter of public policy like this, where the inspector has in terms condemned the action of the local authority, and where it is proposed to disagree with the recommendation of the inspector, then certainly this matter ought to have come before the Minister.

I do not know whether or not that happened here: the noble Lord did not tell us whether the Minister had personally considered this particular appeal or not. I would say that if he did not, then he is deserving of condemnation. The arrangements of the Ministry ought to be that in a case of this kind, above all, the Minister's attention should be drawn to the recommendation of the inspector. If this did happen, he is even more deserving of condemnation in disregarding the views of the inspector and his findings, having read the report. And so I feel that the Minister is entitled to severe condemnation either for not having dealt with this report personally or for having dealt with it in the way in which he did, and for disposing of the inspector's findings in such a cavalier way.

Last week, when I put my Question, the noble Lord, Lord Hastings, replied—and let me say at once that I do not include him in my condemnation. He is in the unhappy position of merely answering for his Minister and saying what he has been told to say. But on the earlier occasion I referred to the analogy of the Crichel Down case, and I thought that this was as bad as the Crichel Down case. I was then speaking from my recollection of that case, which was in 1954, ten years ago. I took the opportunity of spending—or mis-spending, if you like—a week-end refreshing my memory. I read all the discussions in another place on Crichel Down. I do not want to go into Crichel Down too deeply. There had been an inquiry, ordered by the Minister, by Sir Andrew Clark, Q.C., and I read that report. And I subsequently read the final debate on the matter in another place.

In the Crichel Down case a number of the officials of the Ministry were undoubtedly at fault. There is no suggestion of corruption, but they were undoubtedly misguided and at fault. They had placed before the Minister a letter for signature, which unfortunately he signed without going into the matter as fully as he should have done. In a way, I can well understand it. The Minister was busy, and the official concerned was in an important position at the Ministry, and I suppose the Minister felt that he had every justification for accepting statements of fact contained in a letter which he was sending out to a particular individual who felt aggrieved. In fact that letter contained a number of gross inaccuracies and mis-statements, and the person to whom it was addressed eventually saw the Minister and satisfied him, with the result that the Minister ordered the inquiry. The inquiry confirmed that there had been these mis-statements and wrong actions by officials of his Department and of the Lands Commission; and when the debate took place in another place the Minister frankly admitted that he had been wrong, and at the end of his speech he tendered his resignation. I should like to take my hat off to Sir Thomas Dugdale (as he then was) now, happily, with us as the noble Lord, Lord Crathorne, for the action he took. He quite rightly said that he had to take full responsibility for the action of his staff, and he did; and in due course action was taken against those members of the staff who had been responsible for this taking place.

In the present case the facts are, in my judgment, even worse. It is true that the Minister has no direct responsibility over the actions of the Bognor Regis Urban District Council, but he certainly had full information before him and could have judged that their actions had been wrong; that they had endeavoured to obtain a compulsory purchase order by making false statements and producing wrong evidence, and that they were asking for more than they were entitled to. I do not mention the fact, which ought to have put the Minister on his guard (I will not stress this), that normally it is only decent and courteous for a local authority which is about to make a compulsory purchase order to endeavour beforehand to arrive at an agreement with the owners of the property. In this case, the first indication the owners of the property had that the Council was interested in their land was the compulsory purchase order, which, as the Judge said, was acting harshly and arbitrarily.

I want to stress to your Lordships that the making of compulsory purchase orders is an important instrument in the life of this country. We have to acquire more and more land in order to carry out our social purposes. We need land for roads, housing, open spaces, and for all kinds of purposes, and it is essential that we should maintain public confidence in the means by which we acquire land. As I have said, nobody likes his land to be acquired compulsorily, but at least the public must be satisfied that their land is being acquired in good faith; and they rely on the Minister, whoever he may be for the time being. If there is an appeal against the decision of a local authority with regard to a compulsory purchase order, they rely on the Minister to act fairly and objectively, and to ensure that their interests are safeguarded, always having in mind the public interest. In this case this did not happen.

It may be thought odd that I should be coming here as an advocate of a landowner. It is not really so odd, however, because I am a believer, far more than anything else, in fair play and justice. If we are to acquire land compulsorily I want it done in a fair and honourable way. I want the public to feel every confidence in the Minister; to feel that when a decision is made it has been made in the public interest and not in order to bolster up an inefficient—or worse—local authority. It is for these reasons that I have put down this further Question. I had it in mind to put it in the form of a Motion which would have condemned the Government. I still do condemn the Government. I still believe that the honourable course for the Minister, in the present circumstances, would be to resign his office. I think that is the only honourable course he can take.

May I say that nobody would think any the less of him if he did? Everybody is entitled to make a mistake. It may be that the right honourable gentleman was harassed; it may be that he had not the time, and did not realise the significance of it. All that is possible. If he came along and honourably admitted that he had made a mistake, I think we should all be generous to him, and he would not lose in public estimation by admitting his mistake, and even by resigning. Everybody is entitled to resign once, just as everybody is entitled to make one mistake. The Minister has not done that: he has not recognised that he has made a mistake. On the contrary, in reply to my previous Question the noble Lord, Lord Hastings sought to justify the decision of the Minister. It is for these reasons that I am now asking the noble Lord whether he has any further statement to make. It will be in the light of what he has to say to-day that I shall have to decide, in the few days that are left to us, what further action is called for.

5.38 p.m.


My Lords, I think at the beginning of my speech it will probably be most convenient if I refer to the main criticisms made in the judgment of the actions of the Council and of my right honourable friend. I am aware that in picking points from a judgment which is of some length I may overlook something material, but I feel that this is a risk I must take.

The first point to note is that the compulsory purchase order was quashed because, in the view of the Court, the order made by the Council was outside their powers. The Court held that the Council's powers under the Statute could not properly be exercised unless it appeared to them at the time of making the order that the coast protection works they wished to construct could not be carried out except by the use of compulsory powers. The learned Judge concluded on the evidence before him that only some of the land covered by the order was bona fide required for the purpose of coast protection work and that the greater part of it was required solely for the purpose of constructing a promenade.

The Council's action in seeking to exercise compulsory powers in this way was described in the judgment as an abuse of power and a flagrant invasion of private rights—remarks which have been repeated by the noble Lord, Lord Silkin. That is the principal criticism of the Council. I would remind your Lordships that these remarks were made by the Judge after my right honourable friend had taken his decision. They did not appear, of course, in the inspector's report.


They did.


No, not those words. The judgment contains criticism of the Council on two further points: first, that in a statement of their reasons for making the order they had, mistakenly, as it appeared from the inquiry, said that they had been advised by their consultants to acquire the whole of the land covered by the order; and, secondly, that the Council had taken no steps to obtain by agreement with the owners of the land such facilities as they needed for construction of the works. It will, I think, be for the convenience of noble Lords if I say at this stage that in the light of these criticisms by the learned Judge my right honourable friend would consider it superfluous and inappropriate that he should himself seek to admonish or rebuke the Council.

May I now turn to criticisms made in the judgment of actions by my right honourable friend? It will be understood that since the decision of the Court was that the order was bad ad initio, the judgment is not concerned in detail with the reasons why the Minister decided to confirm it. The judgment regretted, however, that the Minister's action would have the appearance of giving ministerial blessing to conduct which ought to be severely discouraged. These are the points arising directly from the judgment of the Court.

The charge brought by the noble Lord opposite is that not only was my right honourable friend in error in confirming the order but also that in what I have so far said I have been lacking on his behalf in candour in not admitting the error. I hope, however, that the words I used last week in answer to one of the noble Lord's supplementary questions will acquit me of the charge of lack of candour. I want to draw noble Lord's attention to this. I do not think any responsible Minister or junior Minister would come to either House of Parliament admitting to a mistake without at the same time giving reasons very fully for coming to a decision. Either House of Parliament would expect to have full reasons given for a decision. That is what I gave in my original Answer to the noble Lord's Question on the last occasion, but when he rose and asked supplementary questions I did say, of course, that my right honourable friend was not questioning in any way the judgment or the comments of the Judge. I should have thought that that in itself was a tacit admission that a mistake was made. As though that were not enough, I said in my second supplementary answer [OFFICIAL REPORT, Vol. 260 (No. 102), col. 440]: As for carrying out any further action, I said my right honourable friend is considering the matter most carefully within his Department, and I am sure he will take any action necessary to see that mistakes of this nature do not occur again. I do not think the noble Lord is quite living up to a great reputation which he has in your Lordships' House for fairness of mind, and I think he was being a little unfair to my right honourable friend when he said that he had never admitted, through my words, a mistake.


My Lords, it required two supplementary questions to extract from the noble Lord the word "mistake". If I had not put the second supplementary question there would not have been a word of admission that there had been a mistake.


If I may now return to the substance of the matter, I should remind your Lordships that there is still the possibility that the Council will choose to exercise their right to appeal against the decision. It would be very wrong that anything I say should be held to prejudice consideration of any such matter. Nevertheless, I will try to explain as fully as I can how my right honourable friend reached his decision to confirm the order. I think this is relevant to the remarks made by the noble Lord at the end of his speech concerning the importance of procedures in relation to compulsory purchase orders.

As I hope I made clear on a previous occasion, my right honourable friend, having formed a preliminary view about the Council's need to own the land on which the works were proposed to be constructed, addressed himself particularly to the question whether he could properly confirm the order notwithstanding his inspector's finding that the scheme could be carried out without securing ownership of the land. On legal advice, he came to the conclusion that he properly could confirm the order; it appeared to him that there was no certainty that all the consents required would in the event be obtainable by agreement. In deciding to proceed he was influenced by the cost and urgency of the works: he believed that they were urgently needed and that they might not be possible unless he confirmed the order. My right honourable friend was aware that the Council had in view other considerations besides coast protection, but he did not consider that the existence in the Council's mind of a collateral purpose, namely the promenade, inhibited him from confirming the order, on the basis that whatever other considerations might also have been in the Council's mind they did need the land for coast protection purposes. In the light of the judgment it is evident that, in the opinion of the learned Judge, my right honourable friend ought in the circumstances of the case to have felt himself inhibited—though the learned Judge did emphasise the exceptional difficulties of the case. My right honourable friend naturally regrets that he did not reach the same conclusion as the Court.

I think I should also comment on the amount of land proposed to be taken. As I have emphasised, it was no part of my right honourable friend's reasons for confirming the order that the Council wished to have a paved promenade behind the works. Indeed, he went out of his way to impress upon the Council that there was no case for paving the strip of land affected. He honestly believed that the area covered by the order was reasonably necessary for coast protection purposes. But the amount required is, in the last resort, a matter of judgment, and looking back on the situation my right honourable friend would not contest the view that, for at least some part of its length, a narrower strip would have sufficed. He asks me to say that he acknowledges and regrets this error of judgment. As matters have turned out, of course, the order as a whole has been quashed.

A word of comment on the question of obtaining facilities by agreement, rather than by compulsion, and on the underlying issue of respect for private rights would not be out of place. In fact, I clearly must say something about it, as Lord Silkin placed it prominently in his speech. It is the general view of my right honourable friend that, wherever practicable, local authorities should obtain by negotiation facilities which they may require for the discharge of their duties, and that they should make every effort to proceed by agreement, notwithstanding that compulsory powers may be available to them. He believes that this view is generally accepted by local authorities and that it is rare for them to have recourse to compulsory powers unnecessarily; and he thinks, as I explained last week, that it would be inappropriate to proffer general advice to local authorities on the basis of this exceptional case. But, so far as his own Department is concerned, he will make sure that all those officers who have responsibility for advising him on compulsory purchase orders study carefully the implications of the judgment in this case and take account of the comments I have made in these proceedings in your Lordships' House.

The noble Lord referred to the difficulty of dealing with so many cases. All I wish to say, in regard to cases of this nature, is that Ministers do see them. That is all I will say about that. The noble Lord can be assured that this case was seen by Ministers. I hope that I have given the noble Lord a direct answer to his Question, what action, if any, has been or will be taken.

The noble Lord tried to draw a parallel between this case and Crichel Down. I really do not think that this case is comparable, even though the noble Lord opposite seemed to think that in some respects it was worse. I would ask your Lordships to reject that view entirely. There was no question of any letter with gross inaccuracies in it stemming from my right honourable friend's Department, or anything comparable to that at all. Apart from that point, the Crichel Down case turned on the owner's claim, for which there was no statutory cover of course, to be consulted before land taken by the Government for one purpose was transferred to another Department for use for a different purpose. This present case turns on the bona fides of a local authority in the exercise of their powers of compulsory purchase under a specific Statute. Those affected in this case exercised their statutory rights of objection and have won their case. I really do not think there is a very close parallel with Crichel Down.

So may I say, as my last words, my Lords, that it comes to this? In deciding to confirm this order my right honourable friend and his Department went wrong in law, and that was decided in the High Court. But the error was made in good faith and with the best of intentions, and certainly without malice afore-thought.


My Lords, that seems to be a most unsatisfactory reply from my point of view, because, in fact, what the noble Lord has said—am I out of order?


No; carry on.


I am sorry. I thought there was consultation as to whether this was a matter for question and answer, and that I was not entitled to speak. From my point of view that was a most unsatisfactory Answer. Because, what the Minister has said, in effect, is that the inspector who carried out the inquiry—who is generally a surveyor or an engineer—was a better laywer than the Ministry's legal department; and that what the Minister did was to take legal advice within his Department but the legal advice within his Department was in error. I think that that, in fact, does show, so far as the Minister is concerned, after he had been given an inspector's report definitely against the confirmation of the compulsory purchase order, that in rejecting it there was more than an error of judgment on his part.