§ 3.14 p.m
§ LORD MOLSON rose to move, That, in the opinion of this House, the time has now come for a general review of the existing machinery for the reconciliation with private property rights of public requirements of land and other facilities, whether such machinery consists of legislation by Private Bill or by Provisional Order Bill, of Special Parliamentary Procedure or of Ministerial Order; and for further consideration of the question whether such machinery could be im- 278 proved, simplified and cheapened, having regard in particular to the difficulty, under present procedures—
- (a) of avoiding inordinate expense and delay, with the serious consequences this may have for amenity societies and other objectors;
- (b) of ensuring that considerations of public policy are given due weight; and
- (c) of considering alternative sites or proposals for providing a particular facility;
§ There is frequently need for the Government, a local authority, a statutory undertaker or a company to acquire compulsorily rights, powers or property which it does not possess. Until 1845, the rights of one person could be compulsorily transferred to another only by an Act of Parliament. That is why Private Bill legislation is a proceeding between two individuals, why the individual affected must be given adequate notice and why a Public Bill affecting the private property of an individual must be transformed into a hybrid Bill in order that the affected individual may have the opportunity of defending his property by a procedure not unlike an action at law.
§ During the last one hundred years, new procedures have been evolved under which Ministers have been given, by general enabling Statutes, power, under strictly defined procedures, to make Orders thus avoiding the need for a special Private Act of Parliament. In 1845, Provisional Orders were first introduced. In 1909, the Housing and Town Planning Act introduced Ministerial Orders not subject 279 to review by Parliament for the compulsory acquisition of land and other purposes. Some years later, Orders were introduced which did not become effective until an Affirmative Resolution had been passed by each House of Parliament. It is the case, therefore, that a number of Statutes authorise Ministerial Orders, but there is no uniformity of procedure. In the first place, some Orders are not subject to any Parliamentary control at all. Secondly, some Orders are not valid until an Affirmative Resolution has been passed by each House of Parliament. In this House we call them Special Orders and they automatically go before the Special Orders Committee. Thirdly, there are Orders which can be invalidated by Negative Resolution. Fourthly, there is Provisional Orders Procedure. Fifthly, there is Special Parliamentary Procedure. Not only is there no uniformity but there is no consistent principle.
§ I am not in any way objecting to the system of having Orders. The advantages of an Order cannot be disputed. When an Order is unopposed it is, in the first place, speedy; in the second place, simple; in the third place, cheap. If it is opposed, there is usually a public local inquiry. There is in the first place an opportunity for local opinions to be expressed by local residents; in the second place, it is informal, it is an effective procedure and it may be quite cheap. In the third place the inspectors appointed by the Minister are usually highly experienced and very familiar with the precedents in the branch of administration with which they are dealing. If the Order is opposed there are, however, very considerable disadvantages. In the first place, it is slow and there is really no effective time limit at all. In the second place an Order cannot be amended except within the ambit of a petition. In the third place, an Order may turn out to be very nearly as expensive, if not quite as expensive, as a Private Bill.
Let me explain the ambit of my Motion. My Motion in the first place relates only to the sphere where a Ministerial Order can be made. Broadly speaking, they are Orders
whose purpose is the application to local circumstances of a general policy formulated within a framework laid down within Parliament.
Those are words that I quote from an official pronouncement by my noble friend Lord Brooke on August 1, 1961— a vox classicus upon the subject. In the second place, I am criticising the way existing procedure works when proposals are opposed, whether in toto or because amendments are sought. Most Orders are not opposed because, whenever possible, promoters reach agreement in advance with the other parties. I have no criticism to make in such cases; and after all, the procedure does not matter much if all the parties are already agreed.
§ My Lords, having defined the area of my criticisms, let me explain why I think the time has come for a general review. I have said that Provisional Orders began in 1845, Ministerial Orders without any Parliamentary control in 1909 and Orders requiring an Affirmative Resolution soon after the First World War. I must now say something about Special Parliamentary Procedure. At the end of the Second World War it was thought desirable to have a more modern, expeditious and cheap procedure. The Churchill Government first presented a Bill to introduce the Special Parliamentary Procedure and the Attlee Government secured its passage through Parliament. The late Herbert Morrison (afterwards Lord Morrison of Lambeth) described procedure by Private Bill as "slow, costly and cumbersome" and he thought that Special Parliamentary Procedure, as provided in the Statutory Orders (Special Procedure) Act 1945 would almost completely supersede it.
§ My Lords, alas for politicians' foresight and prophecies! Mr. Morrison's expectations have not been fulfilled. In fact, my noble friend Lord Sandford, when speaking on the Water Resources Bill on November 19, 1970, used almost the same words about Special Parliamentary' Procedure as Herbert Morrison had used a quarter of a century before about Private Bills. My noble friend said that the Special Parliamentary Procedure was expensive, time-consuming and inconvenient, and indeed he was right. Of the three procedures, Special Parliamentary Procedure is the slowest. I have had an investigation made of the timetables. An opposed Order under the Special Parliamentary Procedure takes, on average, four to five months to get 281 through Parliament after it has been introduced. An opposed Order under Provisional Order Procedure normally takes two and a half months. Parliamentary agents, therefore, find still that a Private Bill is the quickest procedure, and they recommend it when certainty about time is important. So the oldest procedure is the quickest and the newest is the slowest. In view of these facts it is not surprising that Special Parliamentary Procedure has been seldom used in recent years when the Order was likely to be opposed. In 1969–70 and 1970–71 there were 49 Special Parliamentary Procedure Orders, but it was not used in a single case where the Order was opposed. In the previous year, 1968–69, there were 44 Special Parliamentary Procedure Orders, but in only one case was the procedure used when the Order was opposed.
§ My Lords, the slowness of S.P.P., when there is opposition, is not the only reason why it has proved a disappointment. It is a serious disadvantage that Parliament cannot amend an Order except within the ambit of a petition which has been deposited. It also shifts the burden of proof in a way which is generally considered to be unfair. There are other objections which, for the sake of brevity, I will not enumerate. So far from S.P.P. having replaced Provisional Order Procedure as Herbert Morrison expected, there has even been some reaction against it. The London Government Act 1963, which gave the Greater London Council power to amend or repeal local Acts retained the Provisional Order Procedure, and the Statutory Orders (Special Procedure) Order 1962, for which my noble friend Lord Brooke of Cumnor was responsible, abolished S.P.P. and reintroduced the Provisional Order Procedure for Orders made under Section 303 of the Public Health Act 1875.
§ I submit that the present state of affairs is unsatisfactory, for the following reasons. First, the amount of Parliamentary control varies from case to case for no logical reason, and Parliamentary control may be nil. Secondly, the promoter can often, in practice if not in theory, choose what procedure to adopt in order to suit his own case. Thirdly, both procedures can be slow and burdensome for promoters. Fourthly, both procedures can be very costly for petitioners. Fifthly. it is difficult, if not impossible, to object 282 to a proposal on the ground that it is against the public interest, on amenity or other grounds. Sixthly, an alternative site or proposal cannot be adequately considered under either procedure; seventh and lastly, an Order cannot be amended unless a petition is laid.
§ In the debates on the Water Resources Act 1970 my noble friend Lord Sand-ford spoke of the great value of the local inquiry, and I respectfully agree that it has the following advantages claimed by the Government. First, it engages the attention of the local people affected. Secondly, local people need make only a short journey from home to attend. Thirdly, it is usually less expensive than the presentation of the same case before one, or sometimes two, separate Parliamentary Committees at Westminster; although, my Lords, I would mention that the local inquiry on the Ullswater-Windermere project some years ago cost the amenity socities with which I was concerned £11,500. To these obvious advantages mentioned by the Government I would add the following, which I believe to be generally true, but which are not so easily described or proved. I would say that an experienced inspector has a better grasp of planning policy and practice at the tactical level than a Select Committee of either House. I would also say that it has the advantage that the procedure the less formal. This is partly due to the fact that there is usually no transcript, and often the only official records are the notes made by the inspector.
§ I think, however, that my noble friend Lord Sandford did not perhaps realise during that debate that Special Parliamentary Procedure normally requires that a public local inquiry should be held if an objection is made to the Order. In the case of that debate and of the Water Resources Act, really the only difference between my noble friend and myself was the question whether Parliamentary control should be exercised by means of a Negative Resolution of either House or by Special Parliamentary Procedure. Having studied recent developments with S.P.P., I am disposed to agree with my noble friend Lord Sandford regarding its defects; but I am not at all convinced that the Negative Resolution procedure is satisfactory. My reason for that is quite simple. It is impossible to 283 deploy on the Floor of the House arguments which need expert witnesses and counsel, as well as plans and diagrams. The most remarkable attempt at expounding such matters in simple terms on the Floor of this House was made by the noble Lord, Lord Foot, last year, when he repeated the arguments he had used in a Select Committee against one of the reservoir Bills, but I am sure he will be the first to say how difficult it is to deploy on the Floor of this House arguments which really require to be illustrated by graphs and diagrams. I think it is reasonable to argue that there should be some unification of existing procedures. I am sure that, despite the adverse Report of a Committee of this House in 1955, we ought to consider once again whether procedures of this kind should not be dealt with by a Joint Committee of both Houses, instead of for the same arguments and evidence to be adduced twice to two separate Committees, one after the other.
§ Having, I hope, shown that the present state of affairs is unsatisfactory, I ought to indicate how I think it could be improved—and I do so with all diffidence on a complicated matter of this kind. I suggest that the inspector's report and the Minister's letter of decision should be laid before Parliament. It would then be open to any Peer to move that the Minister's decision should be referred to the Special Orders Committee. The most suitable way of doing this would be to incorporate the Minister's decision in the form of a draft Order. As such an Order does not require an Affirmative Resolution, technically it would not be a Special Order. There should, however, be no difficulty in widening the terms of reference of the Special Orders Committee, which is not at the present time overburdened, to enable it to deal with this kind of draft Order. The Special Orders Committee could then decide either that the Minister's decision was so obviously right that no further consideration was needed; or alternatively, that the matter ought to be looked at further. In the latter case, the Order would stand referred to a Select Committee to consider what, if any, further evidence or argument was required before deciding the appeal. Nothing that I am proposing would prevent a formal petition from 284 being presented if it were thought worth while and if the petitioners were able to afford the large sum of money that is involved in contesting an Order before a Select Committee.
§ I would give the Select Committee wide discretion as to how far they wished to re-examine matters which had been dealt with in the local inquiry. I should expect that in the interests of keeping down costs all parties would in many cases agree most of the findings of fact in the inspector's report and would seek to dispute before the Select Committee only matters of principle: for example, whether on the facts as found by the inspector the proposals were, broadly speaking, desirable or not. This would constitute an appeal, but it would differ from the present procedure under Special Parliamentary Procedure, because it would make it unnecessary to produce all the evidence again and have it argued afresh after the matter had been dealt with at the local inquiry. Surely the present way of proceeding is a waste both of time and of money. I submit that this would be a relatively inexpensive way for the public interest to be considered in private legislation, where normally it cannot be taken into account. The amenity societies, with which for some years I have been closely connected, have often found it quite impossible to raise the money necessary to continue opposing an Order, with all the cost that is involved in briefing counsel and bringing expert witnesses to Westminster.
§ After only intermittent study of this subject, many times interrupted, I cannot claim that my scheme is likely to be in any way complete or waterproof. I have tried, however, to make some constructive suggestions, and with the expert help that I have been given I am bold enough to think that these proposals are worthy of consideration. In this Motion I am asking only that they should be considered at a convenient time. A Joint Committee of both Houses has just been appointed to consider delegated legislation. Any alteration in procedure of the kind that I am advocating would require the same co-operation of another place. I suggest that next year, or later, when the problem of delegated legislation has been dealt with and. I hope, settled, the same procedure, or some similar review, might be undertaken on the matters which 285 I have raised to-day. It is a quarter of a century now since Special Parliamentary Procedure was introduced, and it is surely time for a review of procedure relating to Orders of all kinds.
§ To conclude, my Lords, the present procedures are unsatisfactory, first, because there is insufficient Parliamentary control; secondly, they are too slow; thirdly, they are too costly; and fourthly, they are too rigid. I suggest that a more flexible procedure could be produced which would ensure adequate Parliamentary control; permit the public interest to be considered; be fair to promoters and to petitioners; and would, I hope, be cheaper, speedier and more flexible. I beg to move.
§ Moved, That, in the opinion of this House, the time has now come for a general review of the existing machinery for the reconciliation with private property rights of public requirements of land and other facilities, whether such machinery consists of legislation by Private Bill or by Provisional Order Bill, of Special Parliamentary Procedure or of Ministerial Order; and for further consideration of the question whether such machinery could be improved, simplified and cheapened, having regard in particular to the difficulty, under present procedures—
- (a) of avoiding inordinate expense and delay, with the serious consequences this may have for amenity societies and other objectors;
- (b) of ensuring that considerations of public policy are given due weight; and
- (c) of considering alternative sites or proposals for providing a particular facility;
§ 3.38 p.m.
§ THE EARL OF LISTOWEL
My Lords, I must first apologise to the House and ask for your Lordships' indulgence. I have to be at a meeting of the Procedure Committee at half-past four, and I very much regret that I shall miss some of the speeches this afternoon. I shall, 286 of course, return to the Chamber as soon as the Committee meeting is over. Before I turn to the specific points raised in Lord Molson's Motion and in his most interesting and important speech, I think it may be of interest to the House if in a few words I indicate the background of the problem that we are considering this afternoon.
The noble Lord, Lord Molson, has reminded us that until the middle of the 19th century the only way in which a compulsory power could be exercised was by Act of Parliament. A vivid illustration of this fact is that during the period from 1700 to 1800, 12,736 Statutes were enacted, of which no fewer than 9,057, or about three-quarters of the total number, were Local or Personal Bills; that is to say, what we should now broadly call Private Bills. In purely quantitative terms it is fair to say that for a considerable time the main work of Parliament was concerned with private legislation. The importance of private legislation in the past is reflected in the present fact that our Standing Orders Relating to Private Bills were printed long before those relating to Public Bills. At this time Parliament also set up the Committee system to consider Private Bills and hear the parties concerned—a system which, of course, has continued to this present time.
It is of interest, I think, to observe how our Private Bill Standing Orders ensure that the rights and interests of those affected by Private Bills are fully protected. Before any Private Bill is considered by Parliament, the most careful steps are taken to make certain that all parties affected by the Bill are given notice of the scope of the proposed legislation. It is quite clear—and this is a very important point—that this system was evolved by Parliament to deal with straight-forward clashes of interests between two sides: on the one hand, the promoters of a Bill, such as a canal or railway undertaking in the 18th and 19th centuries in the main, and those whose property or livelihood would be affected by the powers asked for in the Bill. This is reflected in the Private Bill Standing Orders relating to locus standi, the effect of which is to confine objectors to a Bill to those who are "injuriously affected" by its provisions; and these are the only parties entitled to petition 287 against a Bill. Select Committee procedure of a quasi-judicial nature is obviously appropriate to such an inquiry. To give an example, the construction of a reservoir would be seen in the terms of our Private Bill Standing Orders as affecting only a handful of landowners or farmers and they only would have a locus standi to petition.
However, to make a point which those who know Lord Molson's interest in amenity and conservation will agree is important, there is an increasing tendency nowadays for the interests of a third party in these disputes to demand attention. I refer, of course, to the considerations of public policy relating to the protection of the environment, to which the noble Lord refers in paragraph (b) of his Motion. These considerations find recent expression in the title of one of our largest Ministries, the new Department of the Environment There have been a number of Instructions to Committees on Private Bills to which the House has agreed in the last ten or fifteen years and in which the Select Committee concerned has been told to consider various questions of public policy. These questions have included the preservation of flora and fauna, amenities for recreation, the preservation of natural beauty, and such other matters as the design of marinas and the provision of increased water supplies from major national water schemes. There is certainly room for doubt as to whether our existing procedures are adequate for considering such questions, for the following reasons relating to locus standi and the tendering of evidence.
First, as I have already pointed out, our Standing Orders relating to locus standi, if strictly applied, would exclude amenity societies operating on a national basis, such as the Council for the Preservation of Rural England, The Commons, Open Spaces and Footpaths Preservation Society, the Ramblers' Association and the Council for Nature. The fact that these societies from time to time have their petitions against Private Bills considered by Select Committees is usually because the promoters of the Bill have not seen fit to challenge their right to be there and to petition against the Bill. In the second place, there is the question of evidence. As Members of this House 288 who have sat on Select Committees (and I see several of them on the opposite side at this moment) will know very well, a Committee is normally asked to consider the provisions of a Bill in the context of the evidence of local needs balanced against local opposition. In cases where the relevant questions of public policy are not brought before the Committee on a petition but are contained in an Instruction to the Committee, the Committee is at a serious disadvantage because it has to rely on evidence not called either by the promoters or the petitioners against it. To overcome this difficulty, in some cases, the House has given authority to a Committee to hear evidence other than that tendered by the parties. In the long run, this practice, if generally adopted, would transform our present quasi-judicial Select Committee proceedings into an inquiry with much wider terms of reference, such as is carried out by a Select Committee on a public matter or by a Royal Commission.
I would also mention here similar difficulties which arise when a Select Committee is instructed to consider alternative sites—for instance, alternative sites for a reservoir. This is a matter referred to in paragraph (c) of the noble Lord's Motion. Here again the Committee may wish to hear evidence as to the suitability of an alternative site, but this may, not unnaturally, not be forthcoming either from the promoters or from the petitioners. The promoters come to Parliament to ask for the powers necessary to develop the site they have selected to carry out the purposes which they wish to be carried out by their Bill; and to expect them to produce evidence regarding alternative sites which they do not themselves want is surely pressing a most unfair burden on them. The petitioners, of course, are naturally concerned only to defend their own threatened area. To sum up, my Lords, I think that, for the reasons I have just mentioned, existing Private Bill procedure is not without its weaknesses in dealing with questions of public policy and alternative sites.
Let me now turn, if I may, to the questions raised in paragraph (a) of the noble Lord's Motion—the avoidance of expense and delay, and generally to the question of the machinery which he would like to set up to meet the difficulties which he has pointed out. The 289 noble Lord's scheme, as I understand it, involves three stages in the case of opposed Orders: first of all, a local inquiry, then a hearing by a Committee of this House on reference of the Minister's decision by any Peer to the Special Orders Committee, and finally, in appropriate cases, consideration by a Select Committee. May I say at this point that the second and third stages would necessarily have to be before Joint Committees of both Houses, because otherwise there would be no means of reconciling differences between the two Houses. I have no doubt that the noble Lord, Lord Molson, has addressed his mind to that problem.
I very much doubt whether, if all three stages suggested by the noble Lord had to be carried out, there would be any substantial saving in expense or delay. Obviously, if the matter rested with the inspector's report and the Minister's letter of decision being laid before Parliament, the expenses of the objecting parties would be minimal, being limited to those incurred at the local inquiry. If, however, stage 2 takes place and the decision is referred to some Committee of the House—for example, the Special Orders Committee, as the noble Lord has suggested—which would have to decide whether there should be further inquiry by a Select Committee, then I fear that the costs of all parties would rise. Depending of course upon the particular circumstances, the Committee might well have to review a substantial part of the evidence tendered at the local inquiry and hear the parties, possibly represented by counsel, before they could decide whether or not this decision based on the inspector's report should be further considered by a Select Committee. In the event of the matter being referred by the Special Orders Committee to a Select Committee, the parties would be involved in the usual costs incidental to such proceedings, and it would be very hard, in my view, once the Select Committee had been convened, for the parties to discipline themselves, in order to minimise costs, as to the material they brought before the committee. In this respect, I am afraid that I do not altogether share the optimism of the noble Lord, Lord Molson, and I think that it would be equally difficult for any discipline to be 290 imposed on them by the Committee in order to save costs.
I might add here—and I am glad to hear that Lord Molson agrees with me—that Private Bill procedure is relatively expeditious. Bills, as noble Lords are aware, promoted at the end of a year and read in January the following year, unless "carried over" to the next Session—and that is exceptional; few Bills are carried over in this way—are normally given the Royal Assent in July. They go through Parliament in one Session. The Parliamentary time taken up by Special Procedure Orders and Provisional Order Confirmation Bills may in effect be the "tip of the iceberg", the majority of the time taken from the inception of a proposal being consumed by negotiations and inquiries outside Parliament. I was impressed by what the noble Lord, Lord Molson, said about the extreme slowness of Orders made under Special Parliamentary Procedure. I think he said that as a result of his researches he had arrived at the conclusion that this was the slowest procedure of all.
As to costs, consideration by Parliament of a dispute between private parties has always been an expensive process. Only recently has legal aid been extended to judicial appeals to the House of Lords: whether similar concessions should be available to petitioners against Private Bills is a matter for consideration. The procedure the noble Lord proposes in his speech has the defect that it fails to reconcile—in spite of his efforts—two conflicting aims. The first aim is to enable the Government, as they do now, to make a decision with the aid of professional inspectors who hear the parties with some informality at a local inquiry. The second aim is to enable Parliament to exercise full control. It would thus establish a system by which the Minister's decision after a hearing on the spot can he overruled or altered by Parliament. This procedure is of course inherent in Parliamentary control over Statutory Instruments. But at any rate, as a rule these Instruments are not amendable by Parliament. Thus, intervention by Parliament in what is principally an executive function, is kept to an essential minimum.
To enable the House to gain some idea of what is involved in the noble Lord's proposal about the machinery that he would like set up, the following figures 291 may be of interest. If only opposed Ministerial decisions consequential on local inquiries were laid before Parliament this would involve some 26 Orders each Sitting week. If the decisions on all Ministerial Orders, opposed or unopposed, had to be laid, this would involve some 50 Orders per week. These figures are based on the present rate at which Ministerial decisions are taken. Noble Lords will notice that even if opposed Orders only are laid, a heavy additional burden of work may be placed on Parliament at a time when this House is working longer hours than it has ever worked before.
I would add only one point. I have said nothing about the procedures involving delegated legislation to which the noble Lord, Lord Molson, referred. As the House will know, a Joint Select Committee of both Houses is currently considering legislation in this field and therefore a decision on such matters at this moment would be premature. May I say in conclusion that I am most grateful to the noble Lord, Lord Molson, for moving the Motion which has given an opportunity for noble Lords to express their views on the important matters that he has raised. This expression of opinion will be of the utmost value to me and, I am sure, to the Government. I should also like to thank him for consulting me from time to time about the matters that he has raised this afternoon, and for giving me this opportunity to explain to the House (I am afraid at some length and in considerable technical detail) some of the difficulties in adapting the existing Private Bill Procedure to the present climate of opinion.
§ 3.55 p.m
§ LORD DIAMOND
My Lords, I suppose that there is not one of your Lordships who, if it were suggested to him that he might be willing to consider something, would respond, "No, I know all about that; I really do not need to give it any further consideration." Therefore, when a noble Lord puts forward a Motion, as the noble Lord, Lord Molson, has done, asking this House to do no more than take the view that the existing machinery ought to be considered or reviewed, I doubt whether any one of your Lordships would wish to resist that. So far as I, and those who wish to pay 292 any attention to my views, are concerned, I should have thought that there would be no difficulty in your Lordships' House accepting the Motion proposed by the noble Lord, Lord Molson. I am sure that there would be no doubt that we are all most grateful to him for applying his particular interest, erudition and experience in these matters not only to bringing forward a Motion, but—certainly so far as I am concerned—in assisting in the education of noble Lords who do not know half as much as they should about these matters and are most willing to learn. In that connection we are indeed indebted to the noble Earl, Lord Listowel, who has brought his tremendous experience to bear and has helped us in understanding the issues before us.
All I wish to do now therefore is to say why, with respect, I am not in a mood to go to the barricades on the noble Lord's Motion—I hope he will not object to that expression of viewpoint. First of all, I share with him very profoundly indeed his fears about politicians' foresight. He told us with authority that of the schemes which have been devised by Parliament the oldest was the quickest, and the newest was the slowest. He then went on to propose an even newer method. I am anxious that it should never befall the noble Lord, Lord Molson, that anybody is able to say to him, "And that has proved to be even slower than the one immediately preceding it." I am impressed by the difficulties of finding a sure way through all these areas of conflict.
If I may show the noble Lord the interest which I have paid to his speech. I should like to refer to some of the arguments which the noble Lord used to demonstrate that, in my view, matters are not all that ill. He said, for example, that at the present time the promoter had a variety of choice. I think he brought that forward as an argument against the present state of affairs. I was not convinced that it amounted to such an argument. My own view would have been that there was something to be said for a promoter being able to choose the kind of machinery provided by Parliament which was most apt for the particular difficult issues which he was concerned with. It might even be that in certain circumstances he could choose the quicker 293 machinery; in other circumstances, the cheaper; in other circumstances the machinery which provided for more expert evidence to be given. Whatever reason persuaded the promoter to choose one method rather than another, I should have thought was, on the whole, to the advantage of resolving very difficult issues indeed, and that there was therefore something to be said for the present system.
I notice, too, that the noble Lord, although at the end of his speech he referred to procedures relating to Orders of all kinds, in his Motion really restricts the review to a particular category, particular quality or particular content of Orders resulting from this particular machinery which he wants reviewed. I should have thought it was going to be very difficult to have a review of the whole of the machinery when all one was concerned with was the way that the machinery affected property rights alone, or virtually property rights alone, as opposed to other rights, because it would be the same machinery for dealing with all kinds of issues in this area. I think the noble Lord himself made clear that there was something to be said for the present situation, and of course he recognised from the start that there were difficulties in proposing something which would supplant it.
The noble Lord based a good deal of his case on the need for Parliament to re-examine, if necessary, and if necessary to come to a different conclusion from that reached by a Minister under an executive Order. This must be an issue which is troubling all of us at the moment: how Parliament can cope with its continually increasing responsibilities. It is not limited to the Government of one Party; it is a process which goes on the whole time, and in a healthy democracy such as we enjoy it is a process which is stimulated by people's demands week after week. It is almost impossible to read a newspaper for a whole week without seeing the comment at some stage, with regard to an event which has happened, that Parliament or the Government should be doing something about it. We have an example in the recent case of the ship which went down in the Thames and which apparently is not governed by any existing procedure or legislation. So we can look forward to continually in- 294 creasing responsibility being put upon the Government and upon Parliament, and increasingly longer hours needed to cope with the work. In these circumstances it is possibly going somewhat against the tide to suggest that Parliament should take back the whole of the authority, or some of the authority, which it has delegated to a Minister.
I say that for two reasons. First of all, a Minister is always responsible to Parliament for what he does. Therefore, although an executive Order would not necessarily come before the House, and although an Order subject to Negative Resolution Procedure would not necessarily be debated, even an executive Order, being an act of a Minister, is something which the House—either House, no doubt; certainly the other House—can question him about and pursue him about. Of course, it does not take any particular form. It may take the form of questions; it may take the form of an Adjournment Debate in the other place; it may take a comparative form in your Lordships' House. But it is certainly the case that a Minister cannot say: "I have made that executive Order on my responsibility and therefore nobody can question it ".
The second reason why I make this suggestion to your Lordships is that it is of course Parliament itself which passes the major legislation under which is derived the powers of the Minister to make the Orders. It must be your Lordships' experience, as it is mine, that whenever such a clause comes before Parliament there is likely to be considerable discussion as to whether the Government's proposal as represented in the Bill put before the House is an acceptable one. Time and time again one has heard the argument, where the Government propose there should be an Order subject to a Negative Resolution, that the House or the Committee would prefer it to be a stronger one; namely, subject to Affirmative Resolution. At all events, this kind of discussion can go on, in my experience does go on, and the fact remains that the enabling legislation is legislation which Parliament passes; and if Parliament did not want the Minister to have the kind of power the Minister does have, Parliament is able to refuse to give it to him. Therefore, there is a great deal to be said for Parliament's 295 making its decision and sticking to its decision and for not taking back work which it has delegated, because I fear that Parliament would rapidly be overwhelmed if it did so. I did not know anything about the statistics; I merely had this feeling in general terms; but we are all enormously indebted to the noble Earl, Lord Listowel, who has given us the figures which add something to the general feeling I had about these matters. Therefore, I think one should approach restoration of authority to Parliament with some considerable care, if not with some anxiety.
So, my Lords, I do not myself believe that the noble Lord, Lord Molson, has necessarily got it absolutely right, and he is the last person who would ever claim that. In particular, I thought it was going to be rather difficult for the Committee to which he would entrust the selection in the very first place—the selection of whether a Minister's Order should go further or should not be considered any further—to decide on merits, which is what the noble Lord was suggesting, whether the Minister was right. I can well understand a small Committee having the responsiblity to decide whether a proposed Order was intra vires or extra vires. But to decide whether it was right—whether a public policy or Government policy was right, with all the matters which are involved in the word "right"—is putting a responsibility on the particular small Committee which I doubt whether it is entirely fitted to bear. And, of course, if the Committee decided it was right there would be no further opportunity of debating the matter. So either one has to say that Parliament of its knowledge deliberately gives a Minister power which, if he exercises it unwisely or arbitrarily, he has to answer to Parliament for, or else there is a system under which Parliament has an opportunity of examining merits rather more fully than it would do where the matter is screened by a Committee of three—or however many it was the noble Lord suggested.
My Lords, these are the kind of difficulties that occur to one on an immediate consideration of what the noble Lord has suggested. None of this detracts from my gratitude to the noble Lord for bringing these matters before 296 us; nor from my admiration for the massive amount of homework which he has clearly done to equip himself to help us in this way. So my general conclusion would be that, although a Motion of this kind is wisely drawn in such a way that it would be difficult to resist, I cannot express myself as enthusiatically in support of the noble Lord's proposal as I would have wished to be.
§ 4.10 p.m
§ LORD FERRIER
My Lords, I rise to support the Motion of my noble friend Lord Molson and I do not have much to say, or have little to add, to what he has said. Indeed, I am not technically equipped to deal with many of the matters to which he referred. But I can say this: that the position which he describes in regard to delay and expense, and sometimes frustration, applies with the same force in Scotland as it does in this country. I do not go all the way with the noble Lord, Lord Diamond, in reading the Motion as being restrictive, because I am chiefly concerned with the machinery in regard to Ministerial Order, and particularly with the problem of public inquiry with which that is connected; and it is to that machinery that I refer. The fact is that at a public inquiry the dice are sometimes loaded—and heavily loaded—against objectors, whether they be private individuals, public companies or amenity societies. The load is the load of expense and delay—and the latter generally means expense—which the present machinery involves. There is no legal aid here for objectors of limited means, and it would sometimes appear that the authorities have an almost bottomless purse. Indeed, one sometimes wonders whether they do not use this fact unfairly. In saying that, I mean that a delay, a deferment, a postponement at the instance of the authorities for further this and further that, means sometimes a quite unreasonable load being put on the objector of limited means.
I am not personally involved except as a member of amenity societies, and, as I said in your Lordships' House on December 8 last,concerned, as I am, for the conservation of our heritage enshrined in National Parks".— [OFFICIAL REPORT, 8/12/71 col. 793.]A business friend of mine in Scotland has urged me not only to emphasise this 297 financial inequity but to cite a recent instance which is not exceptional in either country, where, after a costly hearing at a public inquiry resulting in an objector's case being wholly accepted by the inspector, nevertheless the Secretary of State, acting within the powers which he, like the Secretary of State for the Environment, has, set aside the inspector's report, so that all the objector's trouble, time and treasure were spent to no purpose. The quotation I have just made was from an unfruitful exchange of question and answer which, incidentally, I followed up by a Question for Written Answer, to which I have this afternoon received an Answer from my noble friend Lord Sandford, who is going to reply to this debate. I would only assure my noble friend the Minister that the sole object of these questions has been an endeavour to cut down the cost of a public inquiry (which, incidentally, begins to-day) not only to the objectors but also to the authorities and therefore, of course, to the State. Such cost could be avoided if, as the noble Lord, Lord Molson, said in his speech, some preliminary clarification could be obtained before the commencement of a public hearing. My Lords, with these few remarks I should like to repeat my support for my noble friend's Motion.
§ 4.15 p.m.
§ LORD CHORLEY
My Lords, I, too, should like to express my appreciation of Lord Molson's activity in bringing this Motion before us this afternoon. One has come to associate the noble Lord with what one might call "meaty" Motions which raise questions of great interest and which require very careful consideration. I do not altogether agree with my noble friend Lord Diamond when he says that the Motion is just asking us to consider something and does not involve us in anything very much. The Motion says that "the time has now come for a general review", and if we accept the Motion, as I think we ought to do, then the implication is that some steps should be taken to review a situation which the noble Earl, the Lord Chairman of Committees, who knows more about these matters than anyone else in your Lordships' House, agrees needs improvement. The position really requires a good deal of reviewing and also of amendment.
298 Having sat on Select Committees from time to time and having been for some years a member of the Selection Committee, I have been brought a fair amount into contact with the Private Bill machinery of Parliament, although of course not so much as some others of your Lordships, but sufficient to give me quite an admiration for it. It goes back a long way. The Lord Chairman of Committees has said that there was a time when most of the work of Parliament consisted of Private Bill legislation. This would be true throughout the period in the 18th century when common land all over the country was being reduced into private ownership by Private Bills. At that time Parliament spent a great deal of time making use of it, and it was only when a feeling of revulsion set in against this that much stricter Standing Orders were introduced. In the early part of the 19th century, before the Provisional Order Procedure was introduced, a fairly well-worked-out system for Private Bill legislation had been evolved. If one had time to go into the history of this matter in any detail it would be interesting to show that over the last 150 years or so there has been a constant improvement on the procedural side, until I think myself that the present procedure is, from many points of view, a very flexible and admirable instrument for securing the objectives which Parliament has before it.
Even within the last years, and during the time when those who are present in your Lordships' House this afternoon can remember, there has been a considerable improvement in the machinery: one notable advance has been in the attempt to make the system of your Lordships' Select Committees and those of another place uniform in character. In the late years of the last century and the early years of the present century there was a great deal of difference, and that gave rise to considerable complications and difficulties for promoters and petitioners and others. My impression now is that the procedure under Standing Orders is practically the same, and this has been a considerable achievement, the value of which has perhaps to some extent been overlooked.
299 Yet it has not in a number of ways brought the procedure into line with what is required in the modern world: I think the noble Lord, Lord Molson, has shown that beyond a peradventure. The particular aspect of this matter which really made me decide to take part in this debate this afternoon, and one which has interested me for many years, is one which he has stressed to your Lordships: it is the difficulty of the voluntary societies, which in a way are a unique contribution by this country to civilisation. One does not find elsewhere anything quite like these voluntary societies. In the United States of America, where of course many of their institutions stem from this country, there are similar institutions, but over most of Europe these voluntary societies are more or less absent, at least in the form which they take in this country. They are continually being hamstrung by financial difficulties, especially in this sort of connection. The Private Bill procedure, as it evolved in the 19th century, does not make any allowance for the needs of these societies, which are discharging a national service —one might almost say fulfilling a national duty.
We had some discussion about this subject at the time of the Brighton Marina Bill, I think in 1968, only a few years ago. That Bill gave rise to a great deal of difficulty and illustrated this point very sharply. There had been an inquiry into that proposal at which the local amenity societies had spent pretty well all the money they had succeeded in getting together. When the Bill came to your Lordships' House, to our Select Committee, there was no money left. This point was in fact raised more than once—I raised it on the Third Reading—and the Select Committee at that time was, so to speak, empowered to employ, or it was agreed that the Select Committee had the power to employ, counsel and others to help it in its deliberations on the Brighton Marina Bill. That was quite an advance on what had not very many years before been regarded as the area within which a Select Committee must work.
But, of course, that is not really enough. Tremendously detailed work has to go into the preparation of a case which is being submitted to a Select Committee, and the amenity societies 300 which are concerned with these things often pretty well bankrupt themselves in preparing their cases, usually to give evidence at inquiries—very seldom to give evidence before Select Committees, because, even if their locus standi is not objected to by the promoters, everybody is afraid (though it is probably exaggereted) of the cost which will be put on petitioners in dealing with a case before a Select Committee in one of the Houses of Parliament.
I raised this question with the noble Earl, the Lord Chairman of Committees, even before the Brighton Marina case came up, and he agreed with me—we had correspondence about it at the time—that this is a very important matter. The noble Lord, Lord Molson, has referred to it in rather an indirect way, but I know he agrees with me and sympathises with my views on this particular matter. If a proper review of the whole machinery is needed in the year 1972 to deal with this sort of business, so that we do not just go on tinkering with the machinery which we have been using for 150 years, we must look at the situation in the round, see what we really need and make arrangements for handling the problem in a sensible and efficient way. I am sure that the noble Lord, Lord Molson, would agree—in fact he went most of the way with this in his speech—that in any review of this kind, the need for which I think he has amply demonstrated this afternoon, it is essential that the other place should be brought into the discussion, and I should myself like to see a Joint Select Committee of both Houses of Parliament given the job of looking at the whole of this position and of preparing a scheme.
My noble friend, Lord Diamond, has criticised Lord Molson's proposal, but I am sure Lord Molson has brought it before us not as a cast-iron scheme that we have to take or leave but just to give us ideas on which we can work. I can see the force of the criticism from my noble friend Lord Diamond, which to some extent was echoed by the noble Earl, the Lord Chairman of Committees. We need a number of good minds from both Chambers to look at this matter very carefully over a fairly substantial period of time, because it really is a matter of outstanding importance. In doing so, obviously if we can get a scheme which will give us the best elements 301 in both the systems which the noble Lord has described to us, the Ministerial Order in Council method —which certainly on the whole is a quick and not too expensive method—and our own method, that would be excellent.
In the Order in Council, or the Statutory Instrument, method, it is the Executive which is taking the decision; and whatever my noble friend Lord Diamond says, he knows quite well that if the Minister has made up his mind it is very difficult to shake him in the Houses of Parliament. Every now and then it happens, and Lord Diamond can put his hand on his heart and say, "I know cases where it has happened"; but for every case where it has happened every one of us could tell him of twenty where it has failed. The point is, as the noble Lord, Lord Ferrier, very pertinently remarked, that the Minister is not bound to accept the report of the inspecor, who has heard the witnesses and spent weeks drawing up his report; and not infrequently he does not accept it, and it is a tremendous disappointment to all the people who have taken part and given evidence when the Minister decides against his inspector. He does not have to say why. What is it that goes on behind closed doors in the Department which influences the Minister to take a different view? The Lord Chief Justice, Lord Hewart, remarked that it is important that justice should be done but it is equally important that it should be seen to be done; and where the Minister overrules his inspector without saying why—. and he usually does not say why—it always leaves a nasty flavour in the mouth. That is the weakness of it; it is not democratic.
Whereas our own procedure takes place as in a court of justice; spectators come in and listen, counsel are there and argue, and the Chairman announces his decision and gives it in full to your Lordships' House. We have an opportunity—it is true we seldom make use of it—of debating it. The noble Lord, Lord Molson, has referred to a case where one of the members of one of our Select Committees in fact took a strong and very well reasoned line against the views of his colleagues. I remember very well that powerful speech in which he in effect 302 demolished the arguments of the other members. An important sequel was that when the Bill got to the Commons they were so impressed by Lord Foot's argument that they threw the Bill out, and a splendid property of the National Trust was saved for the nation. Our method is really much more in the spirit of the Constitution. It has become overlaid, as the years have gone by, with the crust, so to speak, of custom, and we have not really brought it as much up to date as we might have done.
Some of the procedures of the inquiry could perhaps be dovetailed into the Private Bill Procedure. For instance, I am involved as an objector in an inquiry which started to-day about a trunk road in the Lake District National Park. I have had a letter telling me that I can put in an objection. Even if I do not go to the inquiry to give oral evidence to the inspector my letter of objection will be considered, and I know from the experience of my friends that there are literally hundreds of people in this country who have had that same letter inviting them to submit their views to the inspector. That, of course, is not possible before a Select Committee of the House under the present procedure as it exists in Parliament. We need to look at the whole situation again. As Lord Molson said, a survey of the requirements in the present situation is needed in order that this sort of elasticity may be introduced into our procedure and in order to get the best out of both these methods.
§ 4.30 p.m.
My Lords, when I have been sitting on Select Committees, sometimes as a member and sometimes as Chairman, I have often wondered whether we could find a better way of doing things than the procedure we were following at the time. When my noble friend Lord Molson was kind enough to tell me of the case he was making, I must say that at first glance it sounded a very strong one. But, of course, it has been rather torn to pieces by the Lord Chairman of Committees and the noble Lord, Lord Diamond, and one realises that there is often more to be said for the established procedures in this world than anything that can replace them.
303 I was surprised at the speediness of Private Bill legislation as compared with what was supposed to take its place and provide something quicker. That of course points a slight moral to reformers. My noble friend raised a point in his Motion—I am not quite sure how much he dwelt on it—on the question of alternative sites, about which I can speak slightly feelingly because justice can be done by the rules of the game at the moment. I remember a Water Bill when, during the course of the Select Committee inquiry, the opponents of the Bill suddenly produced an alternative scheme. The Committee discovered afterwards that those people who were going to he affected by the alternative scheme— in other words, have their farms drowned—had no information whatsoever of this until they read in the local paper an account of the proceedings of the Committee. That may be the proper rule and law, and I appreciate that their remedy would lie to petition against an alternative Bill if it ever came forward, but to my mind it is grossly unethical to bring forward a scheme which will have a vital effect on somebody's interests without telling them in advance that you are going to do so. In this particular case I have not the slightest doubt that something that is called "planning blight" would descend on their land, because the promoters' scheme was ultimately turned down and anybody wanting to buy their farm would immediately be told, "This farm is proposed for drowning under this scheme, so you had better look out". That matter should he looked into, and can perhaps be dealt with.
I was going to suggest that the method adopted by the Church of England for dealing with these matters was a very civilised one, but I have come to the conclusion that it is not quite apposite here, so I will spare your Lordships that particular information. Under the existing rules one gets the impression that, so far from the amenity societies being at any great disadvantage, they find it extremely easy at times to block things. They seem to take a delight in drowning people's homes in preference to drowning moorland valleys, and they sometimes get away with it. They have created an atmosphere in which anybody who 304 proposes a water scheme of any kind has a guilty conscience that he is offending against humanity by providing people with water closets and baths instead of a jolly moorland walk. The other day the Evening Standard contained a paragraph which was quite apposite to that. Commenting on a report of the Metropolitan Water Board, it says that London will require much more water by the 1980s, and that a reservoir should be provided now in the South-East of England. The report continues:Its annual report goes on: ' Most people in the water industry would accept this need. But fear of being labelled as vandals by those who oppose such developments has resulted in this major issue being played in a minor key.' It says the new reservoir 'could be suitably landscaped to fit into the countryside and could provide recreational facilities in an area where there is little other surface water for these pursuits.'That is the case in point. The London Metropolitan Water Board feel that they are going to be branded as vandals the moment that they suggest producing a storage reservoir. One only hopes that sooner or later they will have the courage to come out and accept the label of vandal and produce the reservoir, because otherwise in ten years' time London will not have enough water.
When faced with an alternative of this kind some people promptly say that one must erect a distillation plant for sea water. That is an escapist solution, because that, surely, is one of the most foolish suggestions one could make in a country in which there is an enormous run-off of water the whole of the winter, and where we have to import much of our fuel. To import fuel in order to distil sea water to avoid having to catch the rainfall does not seem a very economic proposition.
I hope that some examination will be made of the whole of this subject. I am sure that there could be some streamlining of the procedure. Why should these Private Bills have to go before two Select Committees? Why should there not be a Joint Select Committee? I hope that when the procedure is being examined, it will not make the necessary powers to obtain the vital sites required by our growing population so impossible to get that they never are obtainable.
§ 4.36 p.m.
§ LORD HURCOMB
My Lords, like the rest of your Lordships who have 305 spoken, I am grateful to the noble Lord, Lord Molson, for having raised this issue. I agree with him in general that it would be well worth looking at these alternative procedures. I think everyone will agree that we want expedition and cheapness. I am not completely convinced that we shall necessarily attain both those objectives and, at the same time, retain all the experience and skill of the Parliamentary agents, and the forensic assistance of the Parliamentary Bar, if we are not prepared to put up with a little delay and spend some money in having a thorough examination of these issues. But that the procedure might be looked at, and perhaps improved, there can be little doubt.
On one particular point, I do not know what the position is now, but in my past experience neither promoters nor objectors would very willingly have forgone the privilege of being able in certain cases to go to the two Houses in succession. On the other hand, there are obviously many cases where a joint inquiry by both Houses ought to suffice. Most of my past experience has been on the side of the executive or the big promoters. I have wanted to get something done, and have chafed at the long delay and the great expense in having to listen to every conceivable kind of objector. Latterly I have rather changed sides, and my interests have coincided with those of the amenity societies, who do not have much money, as the noble Lord, Lord Molson, pointed out, but have very important issues to represent.
There is one point that I should like to raise which has not been expressly dealt with; that is, that in any review of this procedure it should be established beyond challenge that the amenity societies in general have a locus standi in any important proposal which is going irretrievably to damage the environment. Those issues, as I think the noble Lord, Lord Hawke, hinted, are likely to become more and more important, and if we are to protect the environment it will undoubtedly mean telling a good many people that they cannot have, or cannot do, what they want. Those are often difficult issues to decide. It seems to me that many of them will have to come before Parliament itself, and that when they come before Parliament the objectors or petitioners, who will usually be the amenity societies, should have an undisputed locus for presenting their case, even 306 though they may not own any of the land affected or have some direct pecuniary or commercial interest in it. That issue may be dead and no longer disputed. If that is so, I apologise for having taken up time in raising it. But I am sure that it is fundamentally a very important one, and one which the Secretary of State for the Environment must be anxiously considering.
§ 4.42 p.m.
§ LORD SANDFORD
My Lords, I am relieved that my noble friend Lord Hawke did not introduce ecclesiastical legislation on top of everything else that we have to consider. I must say that if he had done so, I do not think I should have been tempted to follow him. I am sure the whole House is grateful to my noble friend Lord Molson for having given us an opportunity to express our views on this complicated matter. It is wide and complex, and I am afraid that I cannot deal with it adequately with the brevity which I normally like to achieve. So I hope that your Lordships will bear with me if I take some time in replying.
As the noble Earl the Lord Chairman reminded us, public requirements of land have greatly increased in the last century, with the greater involvement of public authorities and government in providing the services which are now considered essential to our modern way of life—electricity, gas, roads, highways, reservoirs et cetera. Yet, in a democratic country, it is right to take great care to reconcile these public demands and needs fairly with the private rights of individuals. As the noble Earl the Lord Chairman said, over the last 150 years the trend in order to secure this land has been away from the promotion of Bills in Parliament—which was customary in the days of the railways and canals—towards executive procedures, procedures vested in the Executive, normally involving compulsory purchase orders, which are made or confirmed by the Minister responsible for the service for which the land is needed. These do not come into effect until objections to them have been fully considered.
There is now a well-tried procedure of public inquiry for doing this, and I have noted with gratification that no one who mentioned public inquiries has had anything but praise for the fairness with which our inspectors conduct them. 307 These inquiries have their own rules, designed to ensure that the objector knows what he is objecting against and has every opportunity to deploy his case. It is by no means a necessity for an objector with a good case to feel that he will not get it across unless he employs expensive counsel to do it for him. I believe that our inspectors are well capable of distinguishing between a good case poorly put, and a poor case expertly put. All these procedures take time and cost money, and we accept the time taken as part of the price of fairness and consideration for the individual.
The essential thing in all matters affecting the public, both as individuals immediately affected by proposals such as these which involve their land, and as people whose environment stands to be significantly changed—and, of course, these are represented by the amenity societies, though they are not necessarily organised in that way—is that they should all have the opportunity to make their views known. This is what we call democracy or, in modern jargon, public participation. The next question is: at what level in the whole democratic system should the matter be threshed out, and at what level should the decision be taken? I submit that in many cases—following the line of argument of the noble Lord, Lord Diamond—it is better and healthier that local councils, democratically elected, should take some of these decisions. It is not only a question of devolution of power from Parliament to the Executive and Ministers, but devolution of power from central Government to local government. No doubt we shall be hearing much more of that later on in this Session. In other cases, where the proposals have wider implications either on a local, a regional or a national scale, it is right that the Minister or Ministers having overall responsibility to Parliament for the policies involved should have the final word, even if, in the first place, the matter was discussed locally. In yet other cases, it is right, because of the nature of the issues involved, that Parliament should say "Yes" or "No". There is a whole spectrum here in which it is necessary to provide an appropriate range of choice and variety.
308 I think it is fair to say that the machinery which at present exists does, by one means or another, provide opportunities for public opinion to express itself on important and controversial issues, and for any private rights of the individual to be taken into account when decisions are made, and for all that to be done at appropriate and different levels. Perhaps the commonest form of conflict between public requirements and private rights in land occurs when a public authority needs land for the purposes of its functions and cannot obtain it by agreement. In those cases the authority makes a compulsory purchase order. The landowner has a right of objection and can require the confirming, or order-making, authority to hold a public local inquiry at which not only the owner's objections, but also the views of other parties, including such bodies as amenity societies and residents' associations, can be put forward. That kind of order is an executive order. Parliament has given the Minister concerned power, either to make an order himself (as in the case of highways), or to confirm or reject the order made by a local authority. Compulsory purchase orders are now used in acquiring land for a wide range of statutory purposes which would, once upon a time, have required the promotion of a Private Bill in Parliament.
But although Parliament has delegated these powers to Ministers, it has not disappeared from the picture altogether. Those Orders affecting land in which there are entrenched rights—such as those of commoners in common land, and of the general public in the case of public open spaces, or land held for statutory purposes by local authorities or statutory undertakers—may be subject. as my noble friend has reminded us, to Special Parliamentary Procedure, even though an inquiry has already been held and the Minister who is the confirming authority has decided to confirm the Order. Special Parliamentary Procedure enables a Joint Committee of both Houses to consider objections and, if necessary, to recommend to Parliament that the Order should be amended or annulled.
This procedure, introduced, as my noble friend reminded us, by the Statutory Orders (Special Procedure) Act 1945 and subsequently extended to a considerable 309 number of enactments, was designed to take the place of the cumbersome Provisional Order, confirmed by Act of Parliament, which thus had to go through the same motions in Parliament as a Private Bill. It was at the time thought to represent a simpler and speedier procedure, but in the event it is arguable whether that aim has been achieved. More recently, as my noble friend reminded us, we have seen another method introduced in the course of the passage through Parliament of the Water Resources Act 1971, and my noble friend described the way in which that operates. Compulsory purchase orders and orders such as those that can be made under the Water Resources Act 1971 have largely replaced the Private Bill procedure as a vehicle for obtaining powers to carry out a scheme involving public works, and it seems likely that fewer Private Bills in the works category will come before Parliament each year.
My Lords, I do not think I need elaborate on the Private Bill procedure because most of your Lordships are aware of it and, in any case, the noble Earl the Lord Chairman has spoken of it already. It is one of petition to a Committee of either House by petitioners who must demonstrate that they have a locus standi to be heard; and this might he a weakness or a defect from the point of view of the amenity societies. The procedure is apt to be expensive, time-consuming and, it may be thought, not as flexible for the hearing of matters of local interest and of a technical nature as is the procedure of a public local inquiry. The latter, as noble Lords have said, has the benefit of being a much less formal procedure; the inquiry is held locally, and there is usually a greater opportunity for outside interests to take part.
Several noble Lords have stressed the issue of alternative sites, and I should like to say a word or two about them. It will often be the petitioner's case, or even the case of an objector at a compulsory purchase order inquiry or a special procedure inquiry, that the works in question should be sited elsewhere. If that argument is accepted, the most that can happen is that the proposal under consideration is rejected. I think that on reflection your Lordships would agree that this is right because those 310 affected by the alternative proposal should of course be given equal opportunity to object; and the whole process therefore has to start all over again. One way round this would be to have two or more proposals running concurrently but in the alternative, so that the favoured one, if any, can be approved and the others rejected; but this would involve the promoters of the proposal in the extra cost of studying each of the possible sites, which they themselves may be persuaded are not the most suitable, in the duplication of all the procedures and in an increase of costs all round. This could not be reconciled with one of my noble friend's other objectives—that of keeping down the costs.
It has also been suggested in this context, but not stressed this afternoon, that the planning inquiry commission powers now provided in the Town and Country Planning Act 1968 should be used. Your Lordships will know that these enable the Secretary of State to refer to a planning inquiry commission of three to five people certain planning applications and appeals, development by a local authority or statutory undertakers requiring authorisation, or a proposal for development by a Government Department, if there are considerations of national or regional importance or technical or scientific aspects which are unfamiliar, and where a special inquiry is needed to evaluate them. Where a commission is set up, the question whether the development should be carried out on an alternative site may also be referred to the commission, or they might raise this themselves. Before a local inquiry could be field in relation to an alternative site, it would he necessary to stimulate an application in respect of that site so that those affected could be given a proper opportunity to express their views, and so that any recommendation by the commission could be the subject of a decision by the Secretary of State without further proceedings and delay. It was intended that the commission procedure should be reserved for the most exceptional kind of case, where experience had shown that present procedures were inadequate, and not applied simply because a case was difficult or had aroused much controversy. If a normal planning inquiry would be effective, there is no case for 311 a commission even though national, regional or technical considerations are involved.
There are disadvantages about the planning inquiry commission, and one major objection from the point of view of the Department of the Environment is not only the time that it would take to consider alternative proposals but the fact that in the course of it very extensive blight is spread over the whole of an area affected by all the alternatives. People remain uncertain for many months whether their land is to be affected or not, and might. for example—they often are—be put in a position where they are unable to sell their houses at a fair price if for any reason they are compelled to move while the commission is sitting and the inquiry is going on. The recent inquiry on the siting of the Third London Airport was closely analogous to a planning inquiry commission, and it demonstrated these difficulties. The inquiry took well over a year, it cost £1⅓ million, and it created a great deal of blight over the whole of the area under consideration. This in fact was another of those cases where the Ministers overruled their inspector. But, in answer to the points made by the noble Lord, Lord Chorley, I might mention that only in 3 to 5 per cent. of all the cases that come before Ministers do they overrule the inspector; and. contrary, I think, to what the noble Lord said, the reasons for a Minister's decision on a public local inquiry are always given, whether the Minister agrees with his inspector or not.
My Lords, to come to the cost of objecting, the merit of a public local inquiry is its informality, so that anyone can express views which will be taken into account, as the noble Lord, Lord Chorley, just mentioned. In the course of time the procedures have tended to become a little more formalised, partly because of anxieties to protect rights and partly because legal or other professional representation has become more frequent. This certainly makes objecting more expensive; but, nevertheless, the procedure of a public local inquiry before an inspector is informal, and it is not necessary that people who want to make their views known should in every case have to incur a great deal of expense. In any 312 event, the expense should be considerably less than that incurred by petitioners against Private Bills.
My Lords, I have listened with great interest to my noble friend's advocacy of a uniform procedure to replace the several existing ones and what appears to be a rather hotch-potch pattern, but I think there are serious difficulties—and here I go quite a long way with the noble Lord, Lord Diamond. It would involve Parliament in the consideration of matters which would really often be of no more than local significance and on which Parliament had already delegated decision-making powers either to the public authorities themselves or to Ministers. The existing procedures themselves are very time-consuming, and we accept this because the interests of individuals must be catered for. But we must maintain a balance, and Parliamentary scrutiny of all executive Orders would push the balance against the public interest—certainly against the interest of Parliament.
I am not clear whether my noble friend Lord Molson would apply the form of procedure he is thinking about to all Ministerial Orders, and perhaps planning decisions as well when they are opposed, or only to those Orders which have to come to Parliament because they interfere with entrenched or statutory rights. If all such Orders had to come before Parliament they would represent an enormous burden. As the noble Lord the Lord Chairman of Committees has said, if the requirements were limited to the opposed compulsory purchase orders coming before my right honourable friend the Secretary of State for the Environment it would mean, in round terms, something like 25 to 30 Orders per Parliamentary week—and that is only in the case of the Department of the Environment where my right honourable friend's responsibilities in most respects extend no further than to England and do not include Wales or Scotland or other Departments. If one went further—and I noticed from his remarks that my noble friend intends to go further—and included Ministerial decisions on planning applications and appeals which have gone to public inquiry because they were opposed, this would add another 70 documents per Parliamentary week to the workload. This raises the question, as 313 the noble Lord, Lord Diamond, recognised, of whether Parliament could ever cope with a load like this. That is over and above the question of whether Parliament should attempt to cope with a load like this and should take upon itself decisions which for the health of local government ought to be taken and decided finally there.
This particular load would be not only onerous but unpredictable, because at the instigation of a single Peer who wished to refer the matter to the Special Orders Committee, and then upon the petition of anyone who wished to object and could demonstrate that he had a locus to do so, Parliament's work would increase and we should not know where we were. Furthermore, regardless of whether any of these Orders were passed to the Special Orders Committee or further scrutinised in Parliament, a further delay of some weeks during which these Orders might be considered, scrutinised, prayed against, or whatever the procedure was, would be added to everyone's work. So there is not only a heavy and unpredictable burden for Parliament but further delays on procedures which many people already think take far too long.
Nevertheless, I am quite ready to agree that the procedures operating at present may be capable of improvement. As mentioned by the noble Lord the Lord Chairman of Committees, a Joint Select Committee of Both Houses has been set up to consider delegated legislation. So to that extent it can be said that Parliament is already considering one aspect of the problem; and it may be that in due course those like my noble friend who are interested will feel it worth while to give evidence to that Committee. As regards the procedure on Private Bills and Special Procedure Orders, there might be the possibility of admitting national amenity societies and similar bodies, who at present have no locus standi, to petition. This could be done by an appropriate amendment of Private Bill Standing Orders; but that would involve a review by both Houses of Parliament. I think it would be difficult to devise an all-embracing procedure always involving Parliament to cover every kind of situation in which public requirements of land are in conflict with private rights. It would have to be hedged about with so many rules and 314 exceptions that there would be a grave danger of making life more difficult for everybody—the public, private interests and Parliament.
In conclusion, I apologise for wearying your Lordships with a much too long speech, and I come to the noble Lord's Motion itself. I am not sure whether, in the light of the debate, he will wish to withdraw it or to press it. If, as I expect, he intends to press it, I can advise the House to accept it, provided that when my noble friend comes to the Motion he will make it clear that he is not expecting or asking that Her Majesty's Government or Parliament be committed to-night to any particular form of review over all the wide range of topics that we have been discussing this afternoon or to conduct this review at any precise moment of time. It may be that my noble friend will find that in some degree his wishes will have been anticipated by the recently established Joint Committee on Delegated Legislation. It may be that from the work of that Committee there will emerge the need for further review not far from the sphere that my noble friend has outlined to us this afternoon. There is scope for reviewing our own Standing Orders for Private Bill legislation, and it is clear that after local government reform there will have to be an extensive tidying up of old Private Acts promoted in the past by local authorities. So I would say to my noble friend that there is no lack of opportunity for effect to be given in one way or another to his wishes. If he decides to press his Motion in the sense that I have suggested, I am certainly ready and willing to advise the House to accept it.
§ 5.9 p.m.
§ LORD MOLSON
My Lords, I should like to thank all noble Lords who have taken part in this debate, which I think has been interesting and constructive. What is remarkable was that no one has sought to justify the lack of method or logic in the various different procedures that exist at the present time. Only two noble Lords said anything in favour of the status quo. One of them was my noble friend Lord Hawke, who said that as I had demonstrated that the Orders, both Special Parliamentary Procedure and Provisional Order procedure, were slower than the Private Bill, we had better 315 stick to the Private Bill. The purpose of my Motion is to ask that the procedure relating to Orders should be looked at because the Orders, which were intended to be more up to date, expeditious and efficient than the Private Bill procedure, have been found in practice to be slower. The reason for that is that Private Bills have to be deposited by November 27 in one year and nearly always receive the Royal Assent in the following July. Because of the greater flexibility of the Order procedure, it has in fact turned out to be slower. That is why Parliamentary agents very frequently advise their clients to proceed by Bill.
That brings me to the argument of the noble Lord, Lord Diamond, the only other speaker who sought to defend the present procedure, who said that as I have shown that the two sets of reformers who introduced these different kinds of Order had been unsuccessful, there was much to be said for sticking to the oldest procedure of all. That, of course, is not normally the kind of argument that one expects from the Socialist Party—but let that pass! Although it is necessary to put into the Preamble to a Bill that it is not possible to obtain the powers without an Act of Parliament, the Department of the Environment, knowing how slow Orders are, do not take that point and frequently allow Bills to be introduced in order that water, or whatever it may be, may be available more quickly than would be the case if the strict constitutional procedure of using an Order were followed. I mention that also in reply to Lord Sandford's optimistic view that, as a result of the Water Resources Act 1971, Orders will be used more frequently in future instead of Bills. I hope that his hopeful prognostications will prove to be more justified than those of some of his predecessors.
My Lords, I should have been wiser tactically if I had confined my remarks to a criticism of the present state of affairs and had not ventured to make any constructive suggestions. All the speakers have concentrated on criticising my suggestions and not on justifying the present state of affairs. That I quite realise. But I think it rather feeble to move a Motion asking for a review if 316 one does not put forward any constructive suggestions at all.
In the case of Special Parliamentary Procedure there is already an appeal to Parliament, but I am suggesting that the appeal could be provided in a cheaper way, without the great cost of redeploying all the arguments and reproducing all the evidence which has already been produced at a local inquiry. I think there was some consensus of opinion that a reform on those lines is likely to be useful. I did not emphasise—although I did refer to it—the desirability of having Joint Committees, instead of requiring Orders to pass the gauntlet of Committees in each of the two Houses. The only reason I did not emphasise the point about Joint Committees is that it is not for us in your Lordships' House to dictate in any way to another place. But I hope very much that by having a Joint Committee, without the whole proceedings being repeated in both Houses, there may be a saving of both time and money.
Perhaps the most critical speech was that of the noble Lord, Lord Diamond, who emphasised the need for Parliament not to go back after it has delegated power to Ministers to make Orders. I was reminded of the many debates that we had in the House of Commons in 1943 when Mr. Herbert Morrison (as he then was) objected to the House of Commons setting up a Committee to look at Statutory Instruments. I moved what I think was the third of three Motions on the subject. I had heard Mr. Morrison and other Ministers on previous occasions use almost exactly the same arguments as were used this evening by the noble Lord, Lord Diamond. On that third occasion Mr. Morrison accepted the proposal to set up the Committee on Statutory Instruments, and that Committee has worked extremely satisfactorily from that day to this without any undue interference with the discretion of Ministers and without any excessive burden being thrown upon the House of Commons.
The noble Lord, Lord Diamond, asked whether there was any need for this, because, of course, in every case Ministers are responsible to Parliament, and Parliament has its own remedy. My Lords, that is true. But it is a completely ineffectual remedy when one is 317 dealing with the small and precise matters which are dealt with in Ministerial Orders. If the House of Commons sought to censure a Minister for making an Order of which it disapproved, and the Minister was supported by his colleagues, the only way in which the House could get that Order rescinded would be by the fall of the Government. In fact, it is using a steamroller in order to crack a nut. For that reason, in the case of delegated legislation, in another place they have set up a Committee to look into these matters. Special Parliamentary Procedure is admittedly unsatisfactory. I have shown that in the last two years it has not been used in a single case where those who were seeking the powers thought there would be opposition. As this is the latest kind of procedure, and was produced 25 years ago, surely there is an overwhelming case now for looking at Special Parliamentary Procedure to consider whether it cannot be improved.
My noble friend Lord Sandford said he would he prepared to recommend your Lordships to pass my Motion on two conditions. I really accepted those conditions in my opening speech. I want a review of the present state of affairs in whatever way may be most appropriate. The Lord Chairman, the noble Earl. Lord Listowel, said that some of the criticisms I had made could he dealt with by the Procedure Committee, and that would be most acceptable. As for the timetable, as I said in my opening remarks, I consider that until the Joint Committee on Delegated Legislation has made its Report, and that problem is out of the way, it would be premature for us to go any further in this matter. I therefore entirely accept what my noble friend Lord Sandford said on behalf of the Government. All I desire is to draw attention to the defects of the present state of affairs, and to ask that, in any way that may be appropriate, and when opportunity offers, these matters may be reviewed.
§ On Question, Motion agreed to.