HL Deb 15 July 1965 vol 268 cc249-59

3.18 p.m.

Order of the Day read for the consideration of the Third Report from the Select Committee.

THE CHAIRMAN of COMMITTEES (LORD MERTHYR)

My Lords, I beg to move that the Third Report from the Select Committee be now considered.

Moved accordingly, and, on Question, Motion agreed to.

The Committee's Report was as follows:

HYBRID SPECIAL ORDERS The Committee have considered a request by the Minister of Housing and Local Government for the exemption from the provisions of Standing Order No. 216 relating to hybridity of Orders for the reorganisation of local government made under Sections 23, 24, and 41 of the Local Government Act 1958 and have heard evidence thereon. The Committee recommend that the Standing Order be amended so as to exclude such Special Orders from the provisions relating to hybridity.

LORD MERTHYR

My Lords, I beg to move that the Report be agreed to. In moving this Motion this afternoon, on behalf of the Procedure Committee of your Lordships' House, I consider that my duty lies in explaining the Motion to the House, so far as I possibly can, although perhaps I should not assume that all your Lordships do not fully understand the whole of this Report and all that it implies. It is not my duty to decide the merits of this matter, but simply to try to assist your Lordships to sum up the question and decide upon it for yourselves. Therefore, I regard it as my duty to clarify and explain it, so far as possible, and to leave other Members of the House to act as advocates on either side. The decision, of course, must be wholly that of the House itself.

The Report refers to No. 216 of the Standing Orders relating to Private Bills which deals with Special Orders. These Special Orders require an Affirmative Resolution from the House when they are presented to the House, as they frequently are, as your Lordships will know. To-day we shall be considering only Special Orders laid under Part II of the Local Government Act, 1958, and so far as I know, no others. These Special Orders are hybrid; that is, they are analogous to hybrid Bills. I should like to explain—if it is necessary to do so—that hybrid Special Orders are Orders made by a public authority (in this particular case the Ministry of Housing and Local Government) which affect private interests, including the interests of named local authorities. Those are the Orders—and there are no others that I know of—that we are considering to-day. To complete my attempted explanation of the meaning of the word "hybrid", may I say this? Yesterday your Lordships, at my request, passed a Private Bill, the Huddersfield Corporation Bill. May I explain the hybridity provisions in this way? That Bill was a Private Bill, and not a hybrid Bill. But if that Bill had been promoted by a public authority, such as Her Majesty's Government, it would have been a hybrid Bill, although it would still have affected the same private interests in Huddersfield.

Now I want to say a little about the machinery of Standing Order 216, which is a lengthy one. For these hybrid Orders there is, and must be, under the Order itself a petitioning period of fourteen days. During those fourteen days, of course, Petitions may be presented by private interests affected by the Order. If no Petition is presented the matter is fairly simple, and the Order then goes, with a Report of the Special Orders Committee of this House, to the House itself; and there it is necessary for an Affirmative Resolution to be passed before the Order becomes operative. If a Petition is deposited during the period, the matter goes before the Special Orders Committee, and they, in examining a Petition against a Special Order, must examine four things: first, whether a substantial ground of complaint is disclosed by the Petition; secondly, whether further inquiry is necessary; thirdly, whether the submissions in the Petition could have been brought before a local inquiry, and were not; and, fourthly, whether there ought to be a further inquiry by a Select Committee of your Lordships' House. Those four matters must, on the receipt of a Petition, be considered by the Special Orders Committee.

I now want to draw the special attention of the House to this following matter. The Standing Order says that on the examination of the Order by the Special Orders Committee the petitioner, and, incidentally, the Minister, shall be entitled to be heard by themselves, their counsel and/or agents. Your Lordships will see that here no discretion is left with the Special Orders Committee. They cannot say: "We will not hear the petitioners or their counsel"; they have no option in the matter. After that, the Order may be—not must be—sent by the Special Orders Committee to a Select Committee of this House. That is a further step in the machinery. I need hardly tell the House that this all takes time and, therefore, costs money; but that is a point which I apprehend may be dealt with later.

At this stage one must face the question: Is all this necessary? The answer to that question will be rather relevant and pertinent this afternoon. I do not want to act as an advocate either for or against the Minister or anyone else, but I should mention that, in answer to that question, I think the Minister will say that a second exception should now be made to this Standing Order excluding Orders laid under Part II of the Local Government Act 1958 from the provisions relating to hybridity in this Standing Order. I say "a second exception" because there is a first exception already made. I would only mention that the first exception was made some few years ago to deal with Orders of the same nature made under the Manœuvres Act, 1958—the same year in which this Local Government Act was passed. To the best of my knowledge, that first exception was made because those Orders were, first, urgent, because they were manœuvres Orders; secondly and more importantly, there was already in the Manœuvres Act ample provision for objections to be taken and made to the Order.

I return to the question: Why should this second exception be made? I would remind the House again that we are talking now only about Part II of the Local Government Act 1958, and I have to say that in the opinion of the Procedure Committee of this House that Act, in its second Part, already provides ample and sufficient machinery for objecting to Orders affecting the boundaries of local authorities. The Committee, therefore, say to your Lordships that this further provision in this Standing Order is un- necessary, and that this second exception should be made.

I wish to say a word about the history of this matter, which began just a year ago this month, in July, 1964. Four Orders under the Local Government Act 1958 were then laid by the Minister, and it was then noticed for the first time that the hybridity provisions of this Standing Order applied to those Orders. I am going to make a confession here. Until that date this happening had been overlooked by me, and overlooked, I think I may fairly say, by the Minister: at any rate, it was first noticed in July of last year that this Standing Order applied to those hybrid Orders. There was no Petition deposited this time last year to those Orders, so the matter did not further arise, except in this respect. In the month of August last year I received a letter from the then Minister of Housing and Local Government, the right honourable gentleman Sir Keith Joseph, asking me to ask your Lordships to make this second exception. In due course I referred that matter to the Procedure Committee of the House. Some correspondence ensued throughout the winter months, and in the spring of this year the Committee considered the matter, and, in amplification of the Minister's letter, heard the Permanent Secretary to the Ministry, Dame Evelyn Sharp. After hearing her evidence (and it is printed in this Report for your Lordships to see) the Committee decided to report to your Lordships that they agreed with the Minister, and that this second exception should be made to Standing Order 216. They now recommend accordingly.

There are only a couple of other matters which I want to mention before this question is further debated to-day, as I apprehend it may be, from both sides of the House. In another place there is no such provision; there is nothing at all that corresponds, so far as this matter is concerned, to Standing Order No. 216. Therefore, in the House of Commons there is no opportunity for any petitioner to lodge a Petition against one of these Orders. That is the first matter and, of course, it discloses a difference between the practice and procedure of the two Houses. That, I admit, is not necessarily an undesirable thing, but it is a matter which it is my duty to bring before your Lordships. If I may respectfully do so, I would remind the House that, of course, the final decision in this matter, as indeed in others, is with the House itself. Whatever mistakes may have been made, it is for your Lordships finally to say, as a House of Parliament, whether or not this should be agreed.

Of course, this matter must be decided by the House. I would just remind the House that if this Amendment were made—if this second exception were agreed to—and thereby your Lordships deprived the petitioners of the opportunity to oppose, there would still remain the duty, and the right, of the House itself to throw out the Order if it were so minded, just as the House of Commons can to-day. I have tried not to act as an advocate either for or against the proposition which is now before your Lordships. I have merely tried to explain what may be thought by some to be not an entirely easy matter. I am afraid that I have not done it very adequately, but if there are any further points that are not dealt with by other speakers, I will try to deal with them when I come to reply. I beg to move.

Moved, That the Report be agreed to—(Lord Merthyr.)

3.33 p.m.

VISCOUNT DILHORNE

My Lords, I am sure the whole House is grateful to the noble Lord, the Lord Chairman of Committees, for the exposition that he has given in relation to this Report of the Procedure Committee. There are one or two other matters to which I shall seek to draw attention which I think cast perhaps a rather different light upon this proposal; and the noble Lord, with his great experience in these matters, will no doubt correct me if I am wrong in anything I say.

The first point I want to stress is that what we are concerned with here on the Report of the Procedure Committee is whether or not this House should take away from the subject a right which the subject has at the present time of petitioning Parliament. The right to petition Parliament is one of our longest and most ancient rights under our Constitution. If I may pick up a point made by the Lord Chairman, it really is no answer to say that if this right of the subject is taken away it will still be open to Parliament, if it so chooses, to reject an Order on an Affirmative Resolution. That has not bearing upon this particular issue. I do not know how long this right of objection to a hybrid Bill by those whose interests are particularly affected has existed. It is well known in relation to what we call Hybrid Bills—where there is a Public Bill part of which perhaps ought to have been introduced as a Private Bill because it affects particular interests. In such a case, if it is decided that the Bill is a hybrid one—and that is not always an easy decision—in both Houses there is the right in those affected to petition Parliament and to have their case heard before a Select Commitee, with witnesses being called and cross-examined, and so on.

As your Lordships will remember, powers were taken some time ago—and they have been taken to a considerable extent in recent years—to do by Order things which in former days would have required a Bill. I need not pursue that point, but I think it is historically accurate. When that procedure was initiated, it was recognised, I think, that, just as you might have a Hybrid Bill, so if you took power to do by Order what before had to be done by a Bill you might have a hybrid Order—an Order affecting particular interest of private individuals. It was in these circumstances that Standing Order No. 216 was inserted in our Standing Orders.

The noble Lord the Lord Chairman, quite rightly, said that there is no such provision in the Standing Orders of another place. I am not quite sure what inference he wished your Lordships to draw from that, but I am sure he will correct me if I am wrong when I say that I think it was by agreement with the other House that it was left to this House to deal with the question of hybridity of Orders, and it was not thought necessary that both Houses should have this machinery for dealing with this matter. So, if we are now going to take away from the subject this right, which, by agreement, was left to this House to deal with, there is the question whether we should do so without consultation with another place. Of course, we could do it without consulting them, but if there was such an agreement I should have thought it would be only polite to engage in such consultation.

A great argument is made about the time factor, and the Lord Chairman has drawn attention to the provisions of the Standing Order. I would emphasise that, when you are dealing with a time factor, if a Petition is to be lodged against a hybrid Special Order, it must be lodged within fourteen days of the Order being laid before Parliament. That is not a very long interval. These reorganisations of local government boundaries often take years, so an extra fourteen days obviously will not matter very much.

What is the next stage? If someone does petition, on the ground that the Order is a hybrid Order, and that his interests are particularly affected, the matter is not automatically referred to a Select Committee for investigation for hearing evidence, counsel, and so on. It has to be considered by the Special Orders Committee, and they will refer it to a Select Committee only when they have considered matters which they are required to consider by paragraph (6) of Standing Order No. 216—that is to say:

  1. "(a) whether the Petition discloses substantial grounds of complaint;
  2. (b) whether the matter has been so dealt with upon a departmental inquiry that further inquiry is unnecessary;
  3. (c) whether the submissions in the Petition could have been brought before a local inquiry and were not;
  4. (d) whether, having regard to the answers to the preceding questions and to the findings, if any, of these inquiries and to the other circumstances of the case, there ought to be a further inquiry by a Select Committee."
It is only where these matters have not been inquired into before, or have not properly been inquired into before, that the Committee have power to report to this House that they recommend—I see that the noble Lord shakes his head. The Committee are required to consider the matters which I have read out after which paragraph 6 (and I will read the whole paragraph if necessary) says that they … shall report to the House accordingly.

LORD SHEPHERD

My Lords would the noble Viscount read on, because this is very valid?

VISCOUNT DILHORNE

I am coming to the part about hearing counsel, but that is a different point from the one I am on. My point is that, in the event, having considered those matters (I do not want to be diverted from my point here, as it is very important) it is only where the Committee are satisfied that the Petition discloses substantial grounds of complaint that they have to go into the further questions set out in paragraphs (b) to (d): "whether the matter has been so dealt with upon a departmental inquiry that further inquiry is unnecessary; whether the submissions in the Petition could have been brought before a local inquiry and were not; whether, having regard to the answers to the preceding questions and to the findings, if any, of these inquiries and to the other circumstances of the case, there ought to be a further inquiry by a Select Committee". It is only when they have considered those matters, and have come to a conclusion upon them, which is what I said before—

LORD SHEPHERD

No.

VISCOUNT DILHORNE

Yes; it is indeed what I said. It is only when they have considered those matters and come to a conclusion upon them that they report to this House, and this House can then decide whether or not to send the matter to a Select Committee. We have the fourteen days' notice for the lodging of the Petition, and then it comes to the Special Orders Committee to consider these matters.

The noble Lord the Lord Chairman drew attention to the fact that before the Special Orders Committee counsel could be heard and witnesses called for the petitioner and for the promoters. I must say that I think we ought to inquire into the question whether that provision is really necessary. I do not think it is. If the Special Orders Committee can make up their mind on the written documents, I cannot see the need for the time and the cost of having two inquiries. They can say straight away that the matter has been fully inquired into; that it is obvious, and then not report in favour of sending the matter to a Select Committee. On the other hand, if they are satisfied that something has gone wrong they can report in favour of sending it to a Select Committee, and surely it is there that counsel and evidence should be heard.

My Lords, this is really a subsidiary question, because what we are concerned with here is whether the subject should be deprived of the right that he now has, and has had for some time. Before I say more on that matter, I will just add this: it is obvious from this machinery and from this filter operated by the Special Orders Committee that if, in fact, there has been full inquiry, and the matter has been fully gone into by the Minister, then the Special Orders Committee will not report in favour of its going before a Select Committee. I am sure we can rely on the Special Orders Committee to do that.

I think it is the case that in all the procedure under the Local Government Act there is full inquiry. If so, there is nothing to fear from keeping this Order unchanged. But supposing there is the case where something has gone wrong; that the person with a special interest affected by this hybrid Order is really affected, and that it can be shown that the matter has not been properly gone into. What we are now being asked to say is that, in such a case, the subject shall be deprived of the right he now has of bringing the matter himself before Parliament. I do not think that is right. We are asked to surrender Parliamentary control. It is perfectly true that a long machinery was devised under the Local Government Act. The Minister has to go into all these matters. The Local Government Commission produces draft proposals which are considered by the local authorities; the Local Government Commission then produces final proposals, to which there may be objections, and then there is a public inquiry. After that the Minister gets the report of his inspector and then he makes an Order and lays it before Parliament. That Order may embody or may modify the proposals of the inspector. But those are all decisions by the Minister.

The matter then comes before Parliament on an Affirmative Resolution. It may be the case—as, indeed, the noble Lord the Lord Chairman indicated—that it was not realised in 1958, or until last year, that these particular Orders came within the scope of this Standing Order. But, however that may be, the question now for your Lordships is on this right which the subject still has in relation to hybrid Bills, and, as the Order stands, in relation to all hybrid Orders, apart from the exceptions made under the Manœuvres Act 1958, which was of temporary duration, and it was a case in which a special exemption was made. These Orders with regard to local government boundaries will not be of temporary duration. It is the case that sometimes these Orders give rise to considerable Parliamentary debate and discussion. We had an instance this year in relation to the Order enlarging the borough of Northampton. In fact, this machinery of petitioning against a hybrid Order has never been used and I see no reason to assume that it will be used if matters go right. But the question is: should the subject be deprived of his right to be able to petition?

As the evidence shows, the case for this change was made out very ably by the Permanent Secretary to the Ministry of Housing and Local Government. However, no evidence was heard from those who at the moment have the right to petition, or from their representatives, and they were not given the opportunity of giving evidence. Since this Committee has reported I understand that the matter has come to the notice of the County Councils Association and the Urban District Councils Association, who object most strongly to their members being deprived of the right, which they now have, to petition against these Orders, without their having an opportunity of making any representations at all upon the matter.

My Lords, I have taken the view throughout, as the noble Lord the Lord Chairman knows, that this change which is now proposed by the Ministry is not warranted, but I also take the view, very strongly—and I urge it upon the noble Lord, the Lord Chairman—even if I am in the minority about this, that this charge certainly should not be made without giving to the representatives of those who will be deprived of their rights of petitioning against these Orders, the right of being heard. Therefore, I ask the noble Lord, the Lord Chairman, whether he would not think it right at this stage to withdraw his Motion in order to give the County Councils Association, the Urban District Councils Association, and any others who may be deprived of their rights if this matter goes through, an opportunity, like that enjoyed by the Permanent Secretary to the Ministry of Housing and Local Government, to come before the Committee on Procedure and say why they should not be deprived of these rights if they wish to continue to exercise them.

I hope the noble Lord, the Lord Chairman, will take this course. I think it would be most unfortunate if this House were to appear to be depriving subjects of their rights without giving those subjects any right to make representations upon the matter. I think my request is a reasonable one, but if, despite what I have said, the Ministry of Housing and Local Government and the noble Lord, Lord Mitchison, should wish to press this matter to a conclusion, then I must say, my Lords, that for the reasons I have given I hope that your Lordships will not accept this Report.