HL Deb 23 March 1965 vol 264 cc502-11

2.46 p.m.

THE PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON)

My Lords, I beg to move that this draft Order, which was laid before the House on March 10, be approved. This is an Order about which the Special Orders Committee have entertained some doubt on a point with which I will deal later. In other respects, however, the Committee consider that the Order involves no important question of policy or principle, and therefore I will summarise its provisions shortly.

The Order gives to the new authorities in Greater London certain minor powers under Public General Acts. By Article 3 the licensing of dealers in game is transferred to the London borough councils. By Article 4 the enforcement of provisions about the grading and marketing of agricultural produce is transferred in Inner London to the boroughs. By Article 5 the powers to provide playing fields, swimming baths and the like, which are available to certain local authorities, are given to the Greater London Council. It is in connection with this Article that the doubts of the Special Orders Committee have arisen. Article 6 deals with powers under the Road Traffic Act, and Article 7 with appointments to two training committees mentioned in the Article. Article 8 gives a general power to spend up to a penny rate in the interests of the inhabitants of the Greater London Council area. This power was given generally to local authorities under the Local Government (Financial Provisions) Act, 1963, and it is sometimes called the "free penny".

I turn to the doubt of the Special Orders Committee. They point out that under the subsection of the London Government Act which is taken to authorise this Order, an Order in Council may apply the general law, with necessary modifications, to the Greater London Council, but that there is no express power so to apply the general law in relation to the Inner London Education Authority. Also, they point out that it is to the Inner London Education Authority that the Physical Training and Recreation Act, 1937, is applied by Article 5, which they refer to as "Paragraph 5", so as to enable them to provide the playing fields and swimming baths I have mentioned. Accordingly, say the Special Orders Committee, the Order is ultra vires, unless the Inner London Education Authority is the Greater London Council.

With respect, the Special Orders Committee have been in some danger of lapsing into Arian heresy and of mistaking an identity of substance for a mere similarity. They have not, however, done so because they have pronounced no opinion on the point. But I think it right, with the greatest respect to the Committee, to tell your Lordships that I entertain no real doubt on the matter.

Section 89 of the London Government Act, 1963, tell us that the phrase "the Inner London Education Authority" has the meaning assigned to it by Section 30(1); and Section 30(1), so far as relevant, reads as follows: The Greater London Council, when acting as aforesaid as the local education authority for the said area shall, except for the purposes of any document of title, be known as the 'inner London Education Authority' … I find no obscurity in this language, and I suggest that these words quite clearly define the Inner London Education Authority as the Greater London Council, known by another name when fulfilling certain functions. That being so, I cannot think that the fact that, by those functions and under that name, the Inner London Education Authority has somewhat different personnel need trouble us unduly.

These legal persons are not merely their members. This House, for instance, when sitting as a Judicial body has a smaller membership than when sitting as part of the Legislature; and there are instances in local government where additional members are added to a body when it is carrying out certain functions. One such used to be the addition of parish councillors to the rural district council for the purpose of rating in a rural area. The rural district council, with the parish councillors added, remained the rural district council. My Lords, I beg to move.

Moved, That the Draft London Government (Public General Acts) Order 1965, laid before the House on 10th March, be approved.—(Lord Mitchison.)

2.50 p.m.

LORD HASTINGS

My Lords, in the first place we should be grateful to the Special Orders Committee for making such a full and detailed Report on this rather abstruse problem. I believe that it is the first time they have ever set out in detail their reasons for reporting that they have some doubts as to whether a matter is intra vires or ultra vires. At the same time, I am grateful to the noble Lord, the Joint Parliamentary Secretary, for introducing this Order, for explaining it briefly, and for dealing with this difficult problem. Of course, we are not anxious to hold up the Order, for it implements many things which were necessary to be done under the powers of the London Government Act, 1963. That Act, of course, was passed by the previous Government, and it is in every way an excellent, well-conceived and admirable Act, and one which will be of very great benefit to Greater London in the future.

In respect of this particular problem, however, I do not think that we can brush it aside quite so easily as the noble Lord, the Joint Parliamentary Secretary, has done. In the first place, it is a matter of the dignity of Parliament that we must be quite sure that Orders going out from Parliament are valid and cannot be questioned. Secondly, we want to be sure that from the common sense point of view, the point of view of the layman, these things cannot be held in doubt. Thirdly, we want to be sure that, when tested in the courts, the Order will stand.

When it comes to the provision of swimming baths, there is a good deal of room for disagreement, as I know from my experience in the Ministry of Housing and Local Government. In the Inner London Education Authority area many London boroughs will be involved, and if a swimming bath is going to be built in one area a precept will be made on the whole area and the cost shared out between the various London boroughs. That gives reasons for objection by one borough; and even individuals can object, on planning grounds and when they know they are going to be charged with rates for the provision of such baths.

If there are to be objections, this sort of Order is likely to be tested the courts, and if at the very first hurdle the Order is declared by the court to be invalid, it will mean that we have wasted everybody's time. I am sure your Lordships would not wish to allow that to happen. Section 83 of the London Government Act, under which these powers are taken, says that Her Majesty may make the appropriate modification "at any time … before or after 1st April, 1965". So my first point is that there is no real urgency or hurry about this, and that we should do much better to take our time and get it right.

Now let me turn to Section 30, to which the noble Lord drew attention. He argued that the reference to the "Inner London Education Authority" meant the Greater London Council; but he will see that that section deals, in the first place, with any reference in the Education Acts 1944 to 1962 or in any other Act to the local education authority … But we are now dealing with the Physical Training and Recreation Act, not with the Education Acts; and there is no mention in Section 4, in which this insertion of the Inner London Education Authority is put, of education authorities. There is mention of county councils and local authorities, but not of education authorities.

Later on, Section 30(1) of the London Government Act says: … the Greater London Council, when acting as aforesaid as the local education authority for the said Area … and so on. But it seems to me that under the Physical Training and Recreation Act the Greater London Council is not acting as the local education authority: it is acting as a county council or other local authority. Then, lower down in Section 30, we find that the constitution of the special committee of the Inner London Education Authority consists of councillors not only of the Greater London Council but of one representative from each inner London borough council, who do not belong to the Greater London Council at all, and one Common Council representative, who is not a member of the Greater London Council. Therefore, it is difficult to argue under both these heads that the Inner London Education Authority is in this instance the same "personality" as the Greater London Council.

When it comes to the mention, in Section 30(3), of precepting upon the local authorities for the building of these swimming baths, that is clearly the duty of the Greater London Council and cannot be done by the Inner London Education Authority. They can merely give their advice. There is a good deal of room for doubt, and the noble Lord would do well perhaps to take this back and look at it again very carefully to make sure that we are not making a mistake in passing this Order.

3.8 p.m.

LORD ROYLE

My Lords, I do not intend to go into the matter in the detail in which the noble Lord, Lord Hastings, has done; but, as a member of the Special Orders Committee, I accept the mild criticism of my noble friend in regard to what we did and the doubts we expressed. I would only say that what the noble Lord, Lord Hastings, has said rather contradicts his idea that this is a perfect Act. It seems to me not only that this is just one of the faults in the Act, but that the Act in itself was a mistake from the very beginning. The London County Council seemed to be functioning quite well and there was never any reason for the Party represented opposite to interfere with that situation, except for political purposes.

LORD HASTINGS

Has the noble Lord asked the Greater London Council whether they are of the same opinion?

LORD ROYLE

Like the noble Lord, I form my own opinions on these matters, and I am quite convinced that that was the purpose of the Act. I would only say this to my noble friend when he talks about co-opted members. The Inner London Education Authority have their co-opted members; the difficulty seems to arise from the fact that they are responsible to nobody. The analogy of a local authority having co-opted members on its education committee is not mine, but where co-opted members exist on education committees in local authorities they are subject, in the end, to the approval and decisions of the full council. It seems to me that the Inner London Education Authority are not subject to the approval of anybody, and this is how the doubts arose in the minds of the Special Orders Committee.

Is this not a fault which could be rectified by making any particular section of the Greater London Council subject to its ultimate will and decision? Is this not a case where amendments might be sought to improve the Act in this way? If that were done, I feel that the problem which we are now posing would not arise. Could my noble friend look at it in that way?

LORD MACANDREW

My Lords, first of all I should like to congratulate the noble Lord, Lord Mitchison, on his birthday. But as regards what he said about the Special Orders Committee, may I say that under the Standing Order we went only as far as we were asked to go. We were not asked to express an opinion; only to express doubt in cases of doubt.

LORD CONESFORD

My Lords, I listened with great interest to the speech made by the noble Lord, Lord Royle, on the merits of the London Government Act. But whatever the merits or demerits of the London Government Act, that cannot have the slightest bearing on the question whether or not this Order is ultra vires. That is the one matter with which the House is concerned. I confess that I only saw the Report of the Special Orders Committee since coming to the House this afternoon, and I do not profess to have examined it with great care. I listened to the speech of the noble Lord, Lord Mitchison, who like me is a lawyer but not the most eminent in the House, and I wonder whether on this very important question—because I imagine that the Special Orders Committee was also advised by lawyers—we might have an expression of view from the Woolsack.

VISCOUNT DILHORNE

My Lords, I hope we shall get a further expression of view. Like my noble friend I did not see this Order until a pretty late hour and I do not claim to have made any careful investigation of it. But I have no doubt that the Special Orders Committee, to whom I think the whole House should be grateful for this first instance of what I think is the new procedure which they are adopting, took great care before saying that there was a doubt about it. I listened with great care to the noble Lord, Lord Mitchison, and he went a long way to remove the doubts that I felt, but they were completely revived, I may say, by the efforts made by the noble Lord, Lord Royle, to support him. After hearing Lord Royle I thought there were even more doubts than the Special Orders Committee had said. I hope that we may have the advantage of the views of the noble and learned Lord the Lord Chancellor on this matter, because I am sure that the last thing this House, or either House, wants to do is to pass an Order which is doubtfully good and which, even if it is doubtfully good, may lead to some litigation.

LORD MITCHISON

My Lords, the last thing I wanted to do—and I am sorry if I gave any impression that I was doing it—was to suggest that I am not sincerely grateful to the Special Orders Committee for what, I gather, is their first venture in this particular swimming pool. I did not take their criticism lightly. One noble Lord invited me to go back and have a look at this point. I have had a look at it, oddly enough. I have read through an enormous brief—far longer than anything which I thought right to inflict on your Lordships—and I am afraid I felt no doubt whatever, either about the conclusion or about the reasons I gave for it. They are quite short.

There is one question posed by the Special Orders Committee, and one question only, and that is whether these two bodies are identical, or whether one should treat the I.L.E.A., as I believe it is called, as a committee or something else in some way or another different—like in substance but not the same. I think that the passage I read out is perfectly clear. What it says is that the Greater London Council, when acting for certain purposes, shall be known as the I.L.E.A. If, conversely, the I.L.E.A. is not the Greater London Council acting for certain purposes, should I be exceeding all the Rules of Order in the House if I asked: what the devil is it?—because it appears in Section 30(1) for the first time.

We are referred by the definition section not merely to that section but to that particular subsection, and I can assure your Lordships that I read out, in what seems to me tolerably plain English for an Act of Parliament, the relevant part of the section. That being so, I must say that I feel bound to give your Lordships my own opinion—it is the opinion of those who advise me and is my own, too—that there really is no doubt about this. These two bodies are identical in my opinion. They are not always identical, because the Greater London Council has other functions to perform which have nothing whatever to do with the I.L.E.A. But when it is concerned with these particular matters it is known as the I.L.E.A.

This is not a case for taking back an Order and thinking about it again. If, in fact, these are two separate bodies, then the deficiency is in the language of the Statute in which your Lordships opposite took such pride, and it is not in the form of the Order. It is not a matter that can be put right by rectifying an Order. You just cannot do what it is desired to do, and what I think, with respect, the Act obviously intended could, and we think should, be done. I do not know what more I can do.

I entirely agree with the noble and learned Viscount, Lord Dilhorne, when he says that it is our duty to be clear about things when we pass an Order. I thought he put our duty a trifle high. I have known instances in which Orders have been upset by the court, and nobody shot either the noble and learned Lord the Lord Chancellor or Mr. Speaker in another place because they had not got it right. But clearly we must do our best, and if there is any doubt we ought to consider whether the wording can he put in some other form. I find the Order quite clear, quite unambiguous, and I should like to add my thanks to the Special Orders Committee for what they did and for putting the question so clearly. They simply said: If these two bodies are the same the Order is all right; if they are not, it is not. I am prepared on that to take their opinion. That seems to me to be the question.

I quite agree that there are a number of Statutes involved. One can get one's feet nice and muddy by wandering about among them. But I think there is a plain and simple path delineated for us by the exertions of the Special Orders Committee, and one which we might reasonably follow. It is, of course, perfectly true that it is not the business of the Special Orders Committee to express an opinion one way or another. I hope they did not mind being told that they had been in danger of lapsing into Arian heresy. Arius is long since dead and there is no harm in that kind of thing nowadays. So I would urge the House, with great respect, to do what I believe is the sensible thing and to pass the Order, relying on what I think is the perfectly clear language of the Statute.

I am aware of the point of the noble Lord, Lord Hastings. Perhaps I can answer it most shortly by saying to him that I have adopted on this matter, as the question that really concerns us, the question that concerned the Special Orders Committee themselves. I will not take up the time of the House in trying to give reasons for it, but I think one might follow them. They have obviously taken great care about it. They have given us two alternatives: one, they are the same; two, they are not the same—in the first case valid; in the second case invalid. Then you look at the Act and you find—I hope it is not disrespectful to say—unusually plain English for a complicated Statute. Why not follow it?

LORD HASTINGS

My Lords, before the noble Lord sits down, may I ask him why it would not clarify the whole situation if, quite simply, instead of putting "Inner London Education Authority" we put "Greater London Council"? They have these powers, they are charged with them, and surely there would not be any complication at all.

LORD MITCHISON

No, my Lords. That is not quite so, with respect to the noble Lord. This body is differently constituted for different purposes. That is quite right. I gave another instance, quite a minor one, and it is now out of date, about the rural district council which had parish representatives added to it for purposes of rural rating. I have another one here. I hope I did not sound too abrupt; but I have a high regard for the time of the House, and we have quite a lot of Business before us to-day.

On Question, Motion agreed to.