Private Bill Procedure: Joint Committee Report

HL Deb 17 May 1989 vol 507 cc1180-212

Lord Bancroft rose to move, That this House takes note of the report of the Joint Committee on Private Bill Procedure [HL Paper 97, Session 1987–88].

The noble Lord said: The report to which the Motion refers is the fruit of two years' labour: one might call it hardish labour. In return I ask for a little of your Lordships' time. I ask for 15 minutes of your Lordships' time. I ask as a mere apprentice, not even a journeyman, in the mystery of private legislation. We are here exploring not some arcane and dusty corner. Big issues are involved. I shall have to be very selective.

The committee consisted of seven Members of each House, representing all parties. The fact that the proceedings were amicable and the report unanimous is due to the firm and diplomatic guidance of our chairman Mr. Patrick McNair-Wilson, the Member for the New Forest. Thanks are also due to our specialist advisers, Professor Malcolm Grant and Mr. Ralegh Hancock, who gave generously of their time and wisdom. I cannot speak too highly of our two clerks, Miss Elizabeth Baker and Mr. Andrew Makower who were quite outstanding.

Among our witnesses I must, I fear, be invidious and single out but two. I shall mention Mr. Harold Walker, the Chairman of Ways and Means, who set us on our way, and the noble Lord the Chairman of Committees who guided us towards some of our most challenging recommendations. The trigger for the inquiry was a small crisis in a Private Bill Committee in another place. Noble Lords will be glad to know that the details need not concern us. However, it was a symptom of the increasing pressure of all forms of business, both private and public, on the time of Parliament and that of its Members. The hidden agenda of our terms of reference was the need to save time.

However, the sovereignty of Parliament must be maintained. Nor must we allow it to be said that there is anything inherently unfair or improper about Private Bills. The system has stood the test of time and we must not sell it short. It has its critics and its admirers. However, it has to be recognised that the admirers are mostly nature's promoters, whereas the critics consist of the habitual petitioners against. Does this not suggest that something may be amiss? Our recommendations are designed to restore the balance of advantage as well as to reduce the burden on busy Members.

Let me first deal with a batch of recommendations which ambush the Private Bill before it reaches the Floor of either House. We received complaints from petitioners that promoters tend to adopt a maidenly modesty until the very door of the church. It seemed to us that the sooner all is revealed and the sooner objectors can come forward and open negotiations, the less there will be to fight about in the precious time of Parliament. So we recommend that Bills come with an explanatory memorandum and an environmental impact statement, that parties are encouraged to exchange written proofs of evidence and that wilful failure to consult be penalised in Committee.

Your Lordships will be aware that the lion's share of the work on Private Bills in Parliament is done in Committee. Our leading lion, the noble Lord the Chairman of Committees, is in the Chamber. We should pay tribute to his silent service as chairman and sole member of the Unopposed Bill Committees, for which the Joint Committee heard nothing but praise.

The same cannot be said, alas, of select committees on opposed Bills. Once again the dissatisfaction came from the habitual petitioners against. With virtually one voice they described select committee procedure as being restrictive, arbitrary and intimidating. They tended to make invidious comparisons with local public inquiries conducted under statute by an inspector reporting to a Minister. It is a tribute to the honourable race of inspectors that they have evolved over the years a procedure which the public seem to like. We should not be too proud to learn from their good practice even though I can see that the comparison with select committees should not be pressed too far.

So we recommend that committee members should demand explanation if the argument or evidence is less than clear. The chairman should call to order prolix and expensive counsel whose opening speeches or examinations-in-chief seem to be needlessly protracted. Committees should be mindful of their powers to award costs against parties whose behaviour is vexatious or unreasonable. Finally, they should also consider making a short special report indicating what they have decided and why.

These are not matters which need to be written into Standing Orders. They are rather, in a famous phrase, "touches on the tiller" intended to make select committees more effective and to improve confidence in our procedures. I myself have never served on such a committee but I see around me several noble Lords who have. I hope that they will receive these suggestions with an open mind, and I look forward to hearing what they have to say.

I should say a word about fees. Fees on private legislation are at present derisory and do not even cover the cost of collection. We propose increasing them for promoters to £10,000 per Bill subject to remission in deserving cases. That figure is not plucked out of the air; it represents the estimated cost to Parliament of private legislation procedure divided by the average number of Bills. A promoter will currently spend between £20,000 and £70,000 on lawyers' fees alone. We do not believe that an extra £10,000 is an unreasonable demand. It should have the added advantage of giving promoters a sharper sense of the value of parliamentarians' time. For petitioners we recommend a flat fee of £20.

I should also mention Special Procedure Orders and Scottish Provisional Orders, both of which gave us trouble back in 1985. I am glad to see the name of the noble Lord, Lord Foot, on the list of speakers since he was closely concerned with the orders for the Okehampton bypass. I am equally glad to see the noble Baroness, Lady Carnegy of Lour, and the noble Lord, Lord Wilson of Langside, who were, for their sins, members of the joint committee which sat for six weeks on the Edinburgh Western Relief Road. In both cases there was a strong feeling that noble Lords' time and the resources of the parties had been wasted. Our recommendations are in the report, and I shall not darken counsel by trying to explain them now; but I hope that they have found favour, particularly with the noble Lord the Leader of the House.

There is a school of thought that committing matters to Joint Committees is a good idea and should also be applied to Private Bills. Certainly on the face of it holding one inquiry instead of two ought to save time and money for all concerned. However, there is a rival school, headed by the noble Lord the Chairman of Committees, which reckons that Joint Committees would face more petitions than separate committees of both Houses put together. The Joint Committee procedure fell out of use in the twenties but its ghost still haunts the Committee Corridor. We recommend an experiment, subject to the willingness of the parties involved, to see whether this troublesome phantom should be resurrected or laid to rest for good and all.

All the recommendations that I have touched on so far are intended to make existing procedures fairer and faster. However, that was only what I might call the side salad of the report. I should like now to come to the red meat. Why is any Private Bill promoted in the first place? It is promoted because Parliament has provided no other way for the promoter to achieve what he wants. In practice, however, many Bills, particulary Bills to authorise works such as railways or harbours, contain proposals which could be dealt with in some other way but which are included for the sake of convenience, principally and naturally the promoters' convenience.

When the items included are minor elements of the project, that may be fair enough. But to take a real and recent example, consider a road through the New Forest. Statutory procedures already exist for authorising roads; but this road is to be fenced and that can only be done by specific Act of Parliament. The promoters produce a Bill, not only for the fence but for the whole road. Is this not an abuse? When Parliament has provided a procedure for such proposals, is it right that that procedure should be circumvented by a technicality? The noble Lord the Chairman of Committees described this as a small tail wagging a big dog. A Select Committee in another place took the same view and threw that Bill out.

The Joint Committee endorsed that precedent and set it up as a signpost to committees and a warning to promoters. Committees should ask themselves: what is the primary purpose of this Bill? Is it a road? Is it a railway? In most cases, the answer will be obvious. Then they should ask: is this really the only possible forum for this decision? If it is not, they should throw the Bill out.

Parliament must play fair by the promoters. If they have obtained authority for the road in the proper forum and return with a Bill for the fence, we must not make them fight the battle for the road all over again. This is not just a pious hope. A Bill was promoted in 1969 to fence the new trunk road through the New Forest. Planning permission had already been obtained for the road after much inquiry and local debate; but the Bill for the fence went through Parliament on the nod. What has been done once can surely be done again.

Even if what we might call the Lyndhurst principle is accepted there will be no shortage of works Bills. In particular, Parliament has not yet provided alternative procedures for railways, including the light rail transit or tram systems currently enjoying a new vogue, and also certain kinds of work on harbours and foreshores. The Joint Committee recommend that it is high time those gaps were plugged by legislation providing for public inquiry followed by ministerial order.

I seem to hear the words "parliamentary sovereignty" hovering on a number of your Lordships' lips. There is no question of smuggling the sovereignty of Parliament into the clutches of the Executive. A sovereign Parliament may delegate functions to the Executive and may take them back again at will. We have delegated responsibility for buildings and roads, including motorways, and it is mere historical accident that we have not yet delegated it for railways too.

The saving of parliamentary time in the long term will be enormous. It is not too late to stem the flood of tram Bills. Across the Channel I seem to see a wave of high-speed railways heading our way. But this is not only a matter of our time and convenience as Members of Parliament; the Joint Committee concluded that works projects receive better and fairer consideration in public inquiries than up in the Committee Corridor. That will still be true even after the touches on the tiller to which I referred a moment ago. This is no disrespect to noble Lords who sit on select committees. They cannot be expected to offer the convenience of a local inquiry or the expertise of a professional inspector. I am sure that they will readily admit it.

As regards trams, the Department of Transport said in evidence that it would not rule out of court primary legislation. A month ago the Lord President told the other place that the Government were prepared to begin consultations on all the committee's recommendations if Parliament seemed generally to favour them. I hope that the House will express its favour loud and clear.

That is the meat of the report. I should say in conclusion that our recommendations are intended to form a balanced but appetising table d'hote to be taken together, if not necessarily all on the same plate. If they are taken à la carte we really cannot answer for the consequences. Together they will give a fairer deal to petitioners and save the time of Parliament.

At this point, I seem to see the shimmering ghost of Sir Humphrey Appleby hovering behind the shoulder of the noble Lord, Lord Belstead, murmuring, "But Minister—the Channel tunnel railway". The largest new railway project for years is about to be promoted as a Private Bill. Naturally, the Minister will wish to radiate confidence in Private Bill procedure as a proper vehicle for such a project. But, even if the consultations offered by Mr. Wakeham were to begin tomorrow, the Kent railway Bill would be over and done with, one way or another, well before they are through.

I hope that this important but short-term problem will not distract the Government from major developments designed to smooth the path into the next century. If the Government prefer to give no hostages on Private Bill procedure while the Kent railway is still before Parliament, I myself would prefer to take no prisoners during that period rather than jeopardise the balance of our proposals. I beg to move.

Moved, that this House takes note of the report of the Joint Committee on Private Bill Procedure [H.L. Paper 97, Session 1987–88].—(Lord Bancroft.)

3.21 p.m.

The Chairman of Committees (Lord Aberdare)

My Lords, I know that all noble Lords will be grateful to the noble Lord, Lord Bancroft, for giving us this opportunity to debate the report of the Joint Committee on Private Bill Procedure this afternoon and for making such a masterly introduction to the subject. I should also like to thank him for the kind things that he said about me, but I believe that the tributes are due to the members of staff of the Joint Committee itself and particularly to its chairman, Mr. Patrick McNair-Wilson.

I found the report comprehensive, stimulating and extremely readable. As the noble Lord said, the Joint Committee was appointed in 1987 on the initiative of the Chairman of Ways and Means following certain difficulties that had arisen in another place. That is reflected in the substantial number of recommendations in the report which relate solely to procedures in another place. I confess that in 1987 I had some doubt as to whether our own practice and procedure on private legislation required much in the way of change. Certainly, it would have been difficult to conclude, as the report did in relation to the situation in another place, that: Parliament had less and less time for proceedings which were demanding more and more, and the procedures were showing signs of strain". However, there has been a dramatic change since then. In November, no fewer than 39 Private Bills were deposited in Parliament—twice as many as in 1987. Many of them involve substantial works projects. Two-thirds of them are opposed, some by a dozen or more petitioners. It looks as though, in this House alone, we shall have to appoint 13 or more select committees to consider opposed Bills and petitions. That compares with perhaps half a dozen in most recent years. A number of the committees have lasted, or are expected to last, for two or three weeks or even longer. I should like to take this opportunity to offer my thanks to all those noble Lords who give up so much time to serve on those committees. If I may put in a small plug for my responsibilities, perhaps I may express the hope that more noble Lords will perhaps find the time to volunteer to serve on those committees in the future.

Inevitably, however, there must be a limit on our ability in this House to consider controversial Private Bills. I believe that the limit has been reached, or indeed even exceeded, this Session. I think that I should be an optimist if I predicted quieter times ahead over the next two or three years, so the joint committee's recommendations are very timely. I am sure that the noble Lord the Leader of the House will bear that point in mind as he and his colleagues consider the recommendations made in the report.

Perhaps I may now say a few brief words about the committee's principal recommendations. The first three, concerning the primary purpose of Bills, which were mentioned by the noble Lord, Lord Bancroft, all go together. I sympathise with much of the thinking that lies behind them. However, I am bound to say that in my view it would be unwise and probably not feasible to adopt those recommendations as firm rules to be applied in every case. They are designed to secure that, where only a minor aspect of a scheme requires legislation, it should not be possible to get authority for the whole scheme solely by means of a Bill. In particular, it should not be possible to avoid the ordinary planning procedures for a major works project just because a Bill is needed to authorise one aspect of it. I believe that there is much force in that as a general proposition. There may nevertheless be cases where the most satisfactory way of proceeding from everyone's point of view will be to promote a Bill whereby Parliament authorises the whole scheme. I should not want to rule out that possibility.

In other cases, the committee considering the Bill may take the view that, although it is prepared to give whatever authority is required from Parliament for the scheme, the question of whether the scheme should be permitted from a planning point of view should be a matter for the ordinary planning procedures. In that case, while allowing the Bill, it can always insist on an amendment to negative the general planning permission that would otherwise result from the Bill by virtue of the Town and Country Planning General Development Order. By so doing, it would compel the promoter to obtain the requisite planning permission.

The next group of recommendations is the most important and far reaching in the report. They would remove the need for parliamentary approval of certain types of works, principally railway works, light rail systems and harbours. That would greatly relieve the burden on increasingly busy Members of Parliament—a burden which, as I said earlier, is becoming a problem in this House too. The committee argues that that change is desirable in its own right. I shall be interested to hear the views of those who speak today. Bearing in mind that there are at present 13 railway Bills of one sort or another before Parliament, it seems to me a little odd that Parliament should still be burdened in this day and age with the detailed provisions of those works Bills. Clearly, those recommendations require primary legislation and I look forward to hearing what the noble Lord the Leader of the House has to say about them.

I agree in general with most of the recommendations concerning procedure and I shall mention only one or two specific points. I am sure that the provision of an explanatory memorandum for each Bill is desirable, although compliance with that requirement will, I think, need to be proved before the Examiners, which means that great care will need to be given to the drafting of the necessary Standing Order. So far as concerns environmental impact assessment, that would require an appropriate Standing Order and some co-operation from government departments. A "digestible handbook" on procedure is entirely desirable, although that is probably easier said than done! The detailed recommendations about procedure and practice in committee are particularly important, especially those relating to the need for clear estimates of the length of proceedings, the exchange of written proofs of evidence and the desirability of special reports on controversial Bills.

I commend in particular Recommendation No. 39, which is designed to bring up to date and simplify the charging of fees. I support its speedy introduction in time for next Session. I am less certain about the committee's proposals to change the timetable for depositing Bills and petitions. Despite the committee's best endeavours, I believe that it may be necessary to retain our existing timetable.

The noble Lord, Lord Bancroft, mentioned the question of Joint Committees. I must say that, while I can understand the committee's reasoning, I confess that I have some doubts about the prospects of Joint Committees on Opposed Private Bills. I thought that the noble Lord himself sounded somewhat less enthusiastic about this than did the report.

There are other recommendations—for instance, those about private legislation procedure for Scotland—which I have insufficient time to mention. I shall certainly listen to the rest of the debate with very great interest. For my part I hope that it will be possible later this year for both Houses to give effect to some at least of the recommendations. However desirable it might be to take all the recommendations together, realistically we must accept that many of the most important proposals are dependent upon government legislation, which is bound to take time. In my view, however, it would be wrong to hold up implementation of other useful proposals within the competence of the House.

3.30 p.m.

Lord Murton of Lindisfarne

My Lords, in a memorandum by the Parliamentary Bar presented to the Joint Committee and reproduced in the Minutes of Proceedings on page 137, the following statement appears: It has become apparent in recent years that members of the House of Commons find it increasingly difficult to take part continuously in the quasi-judicial work of the committees; and thus there is a widening gulf in the quality of the decision making process between the two Houses". Those are hard words. I think that some explanation in defence of right honourable and honourable Members in another place would not come amiss. Possibly I am one of those Members of your Lordships' House best qualified to provide that explanation because I was for six years in the Ways and Means Office in the House of Commons, for three years as a deputy chairman and for a further three years as Chairman of Ways and Means.

As I recall, up to 10 years ago there was no serious problem in the provision of Members for Opposed Bill Committees. However, in 1979 there was a radical development. A series of Select Committees was introduced with the object of shadowing each department of state. I believe that there are now 13 such committees, each comprising at least 11 Back-Bench Members of Parliament, and some have more than that number of Members I am told.

Noble Lords may well imagine that the tempting opportunity of summoning and cross-examining members of the Cabinet, senior departmental officials and other persons prominent in public life holds out much greater scope for personal satisfaction than the not altogether unalloyed pleasure of compulsory attendance on an Opposed Bill Committee of uncertain duration. I for one fully understand and sympathise.

That is not all. Apart from the usual Standing Committees dealing with public Bills, there are Select Committees on EC legislation and many other matters. We are told that constituency work has greatly increased in recent years. Finally, the imbalance in the two main parties inherent since 1979 in electoral preferences has placed a particularly heavy burden on Opposition Members.

All that has changed what had been a reasonably simple process of engaging the interests and services of honourable Members for Private Bill Committees in the correct balance of numbers into what an opening paragraph of this report now refers to with great delicacy as "exceptional incidents". These incidents may have been exceptional but they threw into relief the underlying problem which had existed for some time. The message surely is that volunteers are always to be preferred to pressed men. In its recommendations the Joint Committee has done its best to make that possible.

The demand upon the time of both Houses would be greatly eased if an alternative procedure could be introduced for dealing with railway works. As the report states, British Rail has promoted no fewer than 18 Bills in the past 10 years. At this present time, as the noble Lord the Chairman of Committees has explained to the House, there are before Parliament 13 Bills dealing with railways in one form or another: British Rail building and development—and I do not mean to spell out its current controversial plans—and also light railways and tramways. More can be expected in the future particularly in the form of light rapid transport undertakings, which are now very much in fashion.

In the Joint Committee's view it would be much better if railway works, both British Rail and possibly London Regional Transport, could be dealt with through the draft order-making procedure authorised by the Secretary of State. If objection were made to the draft order, the Secretary of State would institute a public inquiry. Similarly there would appear to be no fundamental reason why the Tramways Act 1870 should not be revised to allow for the same order-making procedure for new tramway systems.

We as a committee recommend also that alternative procedures should be devised for dealing with some works-related issues which at present require Private Bill procedure; for instance, the power to stop up existing level crossings. Surely public local inquiries could be held where necessary. This particular problem could best be dealt with by amending the Highways Act 1980. The Harbours Act 1964, which allows harbour revision orders, should also have its scope widened to cover, for instance, footpath diversions and the construction of marinas and for other foreshore developments. Those proposals are covered in Recommendations Nos. (5) to (9) inclusive.

It is well understood that these recommendations, and also Recommendation No. (10) which follows them, dealing with local government miscellaneous provisions Bills, will require primary legislation to bring them into effect. That presents difficulties, I know, but if the Government are sympathetic to our desire to overcome some of the existing problems highlighted in the report, then parliamentary time will have to be found. I pray that it will be fairly soon.

After all, there has been no inquiry into Private Bill procedure since the Glenvil Hall Committee in 1955, and the terms of reference then were more limited than those given to our committee. Moreover, the situation has changed materially over the past 34 years. I dare to suggest that the general public have become more aware of their rights and that Parliament has become more sensitive to the public's needs.

An argument put forward against these proposals to move away railway, tramway and certain aspects of harbour works from Private Bill procedure is the suggestion that the increased workload on government departments would require extra staff. Our response to that is that any increased demand would be counterbalanced to some extent by the withdrawal of the need to give close scrutiny to Private Bills.

Although in my view the recommendations which I have just discussed are the most important in the report, there are other matters which deserve a special mention; for example, environmental impact assessments—quite a mouthful but quite important. I was faced not too long ago on a Bill with opposed provisions dealing with the Broads, when a Roll B agent petitioning against the Bill quoted an EC directive about which, I confess, I knew nothing. Its name I cannot now remember but its importance was not in doubt. As it so happens, EC directives of this nature are not mandatory on a sovereign state if a project or projects are included in specific Acts in national legislation. Nevertheless they are a matter of some consequence and in a climate of opinion which is becoming increasingly "green" I am sure that the Government will wish to be co-operative in following the committee's recommendation; namely, Recommendation No. (13).

In Recommendation No. (36) Private Bill Committees are urged to issue brief, special reports on their findings, particularly on controversial Bills. Committees in fact already have the power to do that but perhaps they should exercise that option more often. I and certain of my colleagues considering a recent Bill with opposed provisions are in the process now of compiling such a report because of the complexity of some of the issues which were involved in the decisions that we had to take.

The joint committee in nearly all cases was from the outset unanimous in its proposals, but I have to confess that in one instance I was prepared to differ. I refer to Recommendation No. (37) relating to the convening of Joint Committees of both Houses to consider Private Bills. Some members of the committee favoured the idea of a trial period when it should be mandatory to deal with private legislation in this manner. It was to be an experiment. I opposed the idea. My view was not original because both the Dunnico Committee of 1930 and the Glenvil Hall Committee of 1955 came out against a similar proposal. I am sure that they were right.

There are of course arguments to be advanced both ways, but I feel most strongly that in the interests of natural justice petitioners should not be denied the opportunity of being heard in the second House. In point of fact, second House undertakings often satisfy a petitioner and, through negotiation, lead to petitions being withdrawn altogether.

This second bite at the cherry to my mind is essential. The recommendation is not now of a mandatory nature but optional; and, indeed, there has always been scope in Standing Orders for the joint procedure to be used should the opportunity and need present themselves.

As one who was once involved in the appointment of parliamentary agents to Roll A and Roll B, I wish to put in a plea for Recommendation No. (38). Many organisations, in particular in the field of conservation, hold charitable status and have to husband their finances. This in effect means that they cannot afford to employ a firm of parliamentary agents when they petition against a Bill. What usually happens is that a senior member of what is, in all likelihood, a comparatively small administrative staff becomes qualified as a Roll B agent and he or she appears before the committee considering the Bill. Under the present rules only one Roll B agent is allowed, who must be present in person throughout all sittings. This places undue physical strain upon the person concerned and moreover leads to a protracted absence from what may well be a small headquarters office.

The rules state that a party may be represented by, one parliamentary agent or firm of agents only". Promoters invariably employ a firm of agents. They can afford to do so. This means that they can, if necessary, rotate their Roll A agents during the hearing, which is a facility denied to Roll B agents. In all fairness, Roll B agents should be treated equally and in consequence more than one Roll B agent should be allowed to represent a party at a hearing.

Recommendation No. (39) addresses the problem of fees payable by the promoters of a Bill and by petitioners against it. The noble Lord the chairman has mentioned this in some detail. We commend the recommendations that we have made, and the provision of a small layman's handbook on procedure.

Finally, I turn to the difficult problem of Special Procedure Orders and Recommendations Nos. (50) and (51). Much heat was generated in both Houses over the Okehampton Bypass (Confirmation of Orders) Bill. The outcome was unique. There had never been a Bill promoted by government to overturn completely a decision of a Joint Committee comprising Members of both Houses. At the time I took great exception at being whipped through the Lobbies in support of a Bill overturning a decision taken by a body of responsible Members who had deliberated on the evidence presented to them and had come to a unanimous conclusion. We make recommendations that I hope will ensure that this does not happen again.

In conclusion, perhaps I may thank my right honourable friend Mr. Patrick McNair-Wilson for his most commendable chairmanship and our two committee clerks, Miss Baker and Mr. Makower, for their sterling work in compiling this report. It is indeed a formidable document, with 50 pages of closely reasoned argument, 52 recommendations and 290 pages of evidence, oral and written. There were 43 sittings extending over 18 months. It should not be overlooked that considerable research also had to be undertaken on the committee's behalf and arrangements made for witnesses to attend. They are all to be congratulated upon a task well done and they have our deep appreciation and gratitude.

3.48 p.m.

Lord Foot

My Lords, perhaps I may begin by echoing the tribute that has already been paid to the noble Lord, Lord Bancroft, and the committee for what is a very remarkable and progressive report. Perhaps I may also congratulate the noble Lord on his ability to present the skeleton of such a vast report within the compass of about 14 minutes.

As the noble Lord, reminded us, this Joint Committee to consider the procedures on Private Bills was instigated largely by a very unhappy experience mostly occurring in the House of Commons over the Felixstowe Bill. Another reason for unease was the experience that there had been in Scotland over the Private Bill procedure. The third reason for setting up the committee was the decision made in this House to confirm two compulsory purchase orders that had been made in order that land might be acquired to build a bypass around the town of Okehampton in Devon. It is to that part of the report that I should like to pay particular attention. I am fortified in doing so by the words that fell just now from the noble Lord, Lord Murton, when he expressed his dissatisfaction with the way in which that issue had been treated.

I must remind the House that it was on 5th December 1985 that this House passed into law a confirming Bill overturning the decision of the Joint Committee on the Okehampton controversy that the compulsory purchase orders should not be approved. As the noble Lord, Lord Murton, said, this was the first time since the special parliamentary procedure was initiated in 1945 that Parliament had taken the extraordinary course of overturning the decision of its own Joint Committee. It was overturned by a majority of no less than 112 votes to 27. That was the end—the bitter end—of a controversy that had been going on over many years.

The Motion of the noble Lord, Lord Bancroft, invites us to take note of the committee's report. Those historic words—that this House takes note of the report—are singularly appropriate in respect of the Okehampton controversy because one finds the report on the Okehampton aspect a comprehensive and unequivocal condemnation of what was then done. It may sometimes appear that the Okehampton controversy was a matter of minor significance. Basically, I suggest, it was a matter of some constitutional importance because what it was really concerned with was the proper relationship between Parliament and the Executive. That is one of the great themes that runs through the whole of English constitutional history.

I take some pleasure in reminding the House of the words that were written by Lord Macaulay upon John Hampden. I expect that some noble Lords will remember those words. Of the beginning of the English Civil War, he wrote: A great and terrible crisis came. A direct attack was made by an arbitrary government on a right which was the chief security of all their other rights. The nation looked for a defender. Calmly and unostentatiously the plain Buckinghamshire Esquire placed himself at the head of his countrymen and right before the face and across the path of tyranny". I am prepared to concede that the Okehampton bypass was not exactly in that class. However, if one were to substitute for John Hampden the Dartmoor Preservation Association and to substitute for Charles I Mr. Nicholas Ridley one would have in an encapsulated form the story of what went on over the Okehampton bypass.

Perhaps I may remind your Lordships how the system works. The special procedure orders were the creation of the Statutory Orders (Special Procedure) Act 1945. It was an Act passed just after the war to try to cope more readily with the great problems of reconstruction which faced the country at that time. It was thought right to try to shift part of the burden of that work on to ministerial statutory orders and thereby to relieve Parliament of some of the responsibility it had previously exercised. At the same time careful clauses were built into the Act to ensure that where an individual or body was specially aggrieved or specially affected by the works to be authorised, those persons should in well-defined cases have the opportunity of coming to Parliament and petitioning against qualification of the order.

The controversy over the Okehampton bypass had a long history. For something like 20 years we had been faced with a terrible practical problem. The A.30, which runs from London through the south of England and into Devon and Cornwall, because it was inadequate to carry the traffic, had become quite intolerable. As a result there was a great public inquiry into the desirability of confirming two compulsory purchase orders which had been promulgated by the department. The essence of the controversy was two-fold. First, it was argued by the opponents that it was inappropriate and improper to drive this huge double carriageway through a national park which would have been involved if the order had been confirmed because the order provided that the new road should go through the national park. The opponents argued that there was a perfectly reasonable alternative route north of the national park through agricultural land which was to be preferred. Not only that; it was also argued that it would be quite wrong to drive the road through the national park because for many years—ever since the Sandford Committee on the future of national parks reported in the early 1970s—it had been agreed policy, agreed by all governments of whatever character, that there should not be a road driven through a national park so long as there was some reasonable and practical alternative. Those two issues were argued out at a public inquiry that lasted 99 days.

In the event the inspector came down in favour of the promoted road. In due course that decision was endorsed by the Secretary of State for the Environment. In the ordinary way, that would have been the end of the matter and Parliament would not have been involved at all. By a curious chance, the decision to drive the road through the national park involved the obliteration of an area of land which had for many years been a public open space. Under the provisions of one of the land acquisition Acts, it had been provided that where a compulsory purchase order took away from the public an area of public recreational open space, it would be subject to special procedures unless the Secretary of State could find and alternative piece of land in the same neighbourhood and of the same recreational or environmental value to take its place. Because the Secretary of State was not in this case able to certify that there was any such area of land, automatically the special procedures began to apply.

The Secretary of State then laid the orders before Parliament with 21 days allowed for petitioning following which the matter was to have come before a Joint Committee. The Secretary of State, if he had so wished, if he was determined in any event to promote his orders and to insist upon them, could have done so. That would have been the end of the matter. He did not so decide. He decided that the matter should be left to go before the Joint Committee. So it was. And the Joint Committee sat for some 12 days, if my recollection is right. There were three Members of the House of Commons and three of your Lordships' on the Committee. Senior counsel had been engaged on both sides. The expenditure on behalf of the petitioners amounted to no less than £50,000. In the end the Select Committee decided that the petitioners had made out their case and that the Secretary of State had acted contrary to what was the settled policy of successive governments. As a result the Select Committee said that the matter should go no further. It was then the Secretary of State introduced his confirming Bill and it was that Bill which was finally confirmed by this House in December 1985.

The final comment I make concerns what was said by the Chairman of Ways and Means about the whole affair. He said: A Bill was passed into law whose proposals had been rejected by the only Members of Parliament who had given them detailed consideration". It is with regret that I say that that same Bill was carried through this House at the Government's behest with overwhelming approbation.

3.58 p.m.

Lord Montagu of Beaulieu

My Lords, I must start by declaring an interest because the brief points that I need to make in connection with this debate concern the interests of English Heritage, of which I am chairman. English Heritage has had recent experience of the defects and the possible abuses of the operation of Private Bills which makes it a matter of major national concern and also to other non-departmental public bodies or quangos as they are known.

My first point concerns the first term of reference and the recommendation that to save parliamentary time where planning considerations dominate, works proposals should be authorised by extra parliamentary procedures particularly in relation to local matters. It is ironic that since this recommendation was made, British Rail, by far the best customer of Private Bill procedure, has sought to extend the exclusion of the use of extra parliamentary planning procedures in a works Bill which seeks to override for the first time listed building control procedures. This is Clause 19 of the King's Cross Bill which your Lordships have still to consider. If the clause is enacted, I fear it will become a precedent in all British Rail Bills with both local and national issues.

In its report, the Joint Committee extolled the advantages of the public local inquiry, in particular as it allows the planning and environmental issues to be thoroughly considered and reviewed. However, Clause 19 of the King's Cross Railway Bill will prevent that in connection with a major development which contains many listed and important buildings. It will leave key planning and environmental issues to be reviewed by a hard-pressed parliamentary Select Committee.

My second point concerns the second term of reference; that is whether changes in procedure are desirable. Contrary to its reaction on the first point of reference, British Rail may be thought to have "gone over the top" in support of the Joint Committee's recommendation to the effect that promoters should be encouraged to challenge petitioners whose right to object to its Bill is suspect.

Over the past decade or so there have been 11 challenges by promoters against petitioners to its Private Bills. But in respect of one British Rail Bill in the spring of this year, there were, I understand, 140 challenges. Possibly because challenges were so uncommon when the committee was taking evidence, regrettably, it did not consider the procedure of the Court of Referees. That is the committee of another place which determines whether a challenge issued by a Bill promoter against a petitioner should be upheld against the Bill in Committee. The court does not need to give reasons for its decisions. That in itself is a peculiar feature of this rather obscure procedure.

This month the court, with one lawyer and the members, quickly determined not only the "locus" of English Heritage but its power to object to the Bill. Frankly, we were excluded. That has implications not only for English Heritage but also for similarly constituted bodies such as the Countryside Commission and the Nature Conservancy Council which have in the past valuably opposed Bills without challenge and have given evidence to the committee.

The refusal of leave to petition raises serious problems because I believe that English Heritage is the organisation best qualified to advise on matters of conservation and the protection of the historic environment. It has special powers in London. Moreover, as the statutorily constituted advisers to the Secretary of State for the Environment we at English Heritage had hitherto believed that it was our duty, as decided by Parliament, to ensure by all appropriate means the best protection for the heritage. Now we are left without the proper means to carry out that duty on the King's Cross Bill.

A precedent has now been set of challenging our statutory powers by denying our right to petition against a Private Bill, and it is impossible to believe that it will not be followed again and again in the future. That has particular relevance to the forthcoming Channel Tunnel Link Bill which will threaten many more historic buildings, conservation areas and archaeological sites than the King's Cross Bill. I shall of course raise that matter when the Bill is debated in your Lordships' House.

My final point concerns the recommendation of the committee for a new procedure in respect of railway works. It suggests that British Rail or any private operator should be empowered to proceed by draft order submitted to the Secretary of State. That would possibly meet with favour in English Heritage but only if there were adequate provision for consultation and for a public local inquiry to be held where necessary. Otherwise, I welcome the report of the Joint Committee which was chaired by my local Member of Parliament, and I congratulate it for its work.

4.4 p.m.

Lord Wilson of Langside

My Lords, it is not disputed that private legislation is an important part of the work of Parliament. My impression is that, at least in the other place, it is not a universally popular part of that work. I shall not speculate on the basis for that impression. I shall content myself by saying that I hope the report of the committee will promote not only its popularity but serious consideration by Government of the way in which the procedure by which such legislation is enacted may be improved.

I should like to say without offence that I have been told that some young men and women seek to become Members of Parliament—and, unlike myself, some succeed in doing so—without knowing the difference between public and private legislation. They are not even aware of the existence of this rather strange and esoteric private creature.

However, my proposal may come as something of an anti-climax to noble Lords who have listened to the previous speakers; in particular to the impressive and masterly presentation of this complicated report by the noble Lord, Lord Bancroft. I propose to say a brief word about the Scottish dimension. It is another of the many areas of our political affairs and concerns in which there is a difference north and south of the Tweed and the Cheviots. I often confess to being a little anxious when the differences in dimension arise. That is because I fear that when they are raised they may sometimes create an English backlash. However, I am happy to say that in this context the Scottish dimension is not one which gives rise to any of those familiar alarms and excursions or stresses and strains between the two parts of the Kingdom.

The difference derives from legislation enacted in the closing years of the last century and ultimately consolidated in the Private Legislation Procedure (Scotland) Act 1936. Under the Act, by way of a variety of orders, the procedure north of the Border is regulated. I hope that does not sound like a promising lecture for students on the subject of private legislation procedure in Scotland. Basically, under the procedure the Scottish Office is responsible for the detailed scrutiny of proposed legislation. Any authority or person seeking parliamentary powers can petition the Secretary of State to issue a provisional order instead of seeking leave to introduce a Private Bill.

The petitioners and objectors (if any) are heard not by a Committee sitting in the Palace of Westminster but by four parliamentary commissioners—normally two Members from each House of Parliament and from across the parties—sitting in Scotland in the locality affected by the parliamentary powers sought by the orders. The commissioners report to the Secretary of State. If the order is issued and ultimately approved by Parliament under an abbreviated procedure, then it becomes a Public Act.

The committee's findings and recommendations regarding this procedure are set out at pages 44 to 49 of the report. The committee was quite satisfied that until 1985 the procedure had worked well. I am sorry to say that my experience in the legal field goes back so far as the immediate pre-Second World War years. I do not recall throughout my experience any significant complaints or criticism directed against this statutory procedure. Among other things, it had successfully saved parliamentary time, which was something it was designed to do.

In 1985 the Lothian Regional Council Edinburgh Western Relief Road Order, which has already been mentioned a number of times during this debate, was subject to an inquiry by commissioners which lasted 52 days spread over three and a half months. As if that was not enough, in Parliament the confirmation Bill was referred to a Joint Committee under Section 9 of the 1936 Act, of which I confess to having been a member. The noble Baroness, Lady Carnegy of Lour, was the distinguished chairman.

That committee sat for some 17 days over six weeks. That was regarded by everyone, including the Chairman of Ways and Means and the committee, including myself, as "quite unacceptable". My impression is that the fact that all this was regarded as quite outrageous is something of a tribute to the expedition with which we Scots normally dispose of such matters. Indeed—and again this is a matter of impression—my own impression is that we are a little more economical of time than some other parts.

Be that as it may, the events surrounding the Western Relief Road will linger in the memories of very many citizens of Edinburgh. It was a local difficulty not heard of a great deal outside Edinburgh, but it will linger in the memories of all those people, whether they were for or against it. It will not be a blessed memory except for a few members of the legal profession who were professionally involved.

The essence of the committee's conclusion—and I hope that it will commend itself to your Lordships—about the implications of this experience was that it was a kind of, if I may put it rather colloquially, one-off hiccup. However, we took into account that it illustrated that the procedures, although not calling for revolutionary change, were capable of improvement. Those recommendations are set out shortly and succinctly in the five and a half pages of the report dealing with Scottish legislation procedure. I commend those in particular to your Lordships.

4.14 p.m.

Baroness Carnegy of Lour

My Lords, as the noble Lord, Lord Bancroft, said, and as the noble Lord, Lord Wilson, reiterated, one incident which triggered off this review was the provisional order by Lothian Regional Council in 1985. It wanted to build a relief road to ease traffic congestion in western Edinburgh. Because legislation was needed to move a short length of railway line, it was able to take the private legislation route for the whole scheme in preference to the normal planning and public inquiry procedures.

As the noble Lord, Lord Wilson, said, I was chairman of the Joint Committee of both Houses which dealt with the order in 1986. By the end of our work members of the Joint Committee felt very strongly indeed that the system which we had been operating left a lot to be desired. For that reason I speak briefly in this debate and I hope that noble Lords will forgive me if I cannot stay until the end because I have another commitment in the House just before 5 o'clock.

The story of the Edinburgh relief road is a good object lesson in why, in the modern world, Scottish private legislation procedure needs updating. Over a number of years, the two local authorities involved, the local planning authority, the district council, and the roads authority of Lothian Regional Council, had worked harmoniously together on plans for the road. It was not a trunk road or a motorway; it was an additional local road designed for a low speed limit to link the new ring road bypassing the city with the city centre. It was an ordinary local government roads project.

As with all new roads, the idea appealed to some people and alarmed others, but until the 1984 district council elections all had gone fairly smoothly. Together the two councils freed the entire route of the road so that only one house would have to be demolished if the road was built. Then the political colour of the planning authority changed and a new, as it happened, left-wing council decided to try and prevent the new road being built. The Conservative regional council continued, determined not to be frustrated. Environmentalists and others lined up on either side; the media became heavily involved; and the whole matter became very controversial.

The Scottish Office evidence to the review committee suggested that apart from the shifting of the railway line which had to take place, normal planning procedures were open to the region on this occasion for all parts of the road scheme. However, the region decided for reasons of cost and time-saving to deal with the matter by private legislation.

The Scottish procedure under the 1936 Act has already been described by the noble Lord, Lord Wilson. I shall not repeat what he said. Hitherto the procedure had operated reasonably effectively and swiftly, the average time taken over the past 30 years being only two and half days. In the case of the Edinburgh relief road what happened was very different. The original draft order was petitioned against. Commissioners were appointed and, incidentally, were not easily found. No Peers were available and two extra parliamentary panel members were asked to take their place. As the noble Lord, Lord Wilson, said, the hearing lasted 52 days. That was because of certain defects in the order in relation to the railway and also because of mounting controversy surrounding the whole issue and other reasons. The Bill was amended. A confirmation Bill was introduced in Parliament and again, because, I believe, of all the controversy, it was referred to the joint Committee of both Houses.

Our committee consisting of three Peers and three Members of the House of Commons had it put to us at the outset that we need not conduct a re-run of the hearing by commissioners and could confine ourselves to looking at the validity of what had gone before and any additional evidence brought forward. In the event, there was strong pressure on many sides to do rather more than that. Indeed, for some there was a vested interest in delaying the Bill.

We insisted as far as possible that what we heard should be new and should be put concisely; but in an attempt not to be what the noble Lord, Lord Bancroft, referred to as restrictive, arbitrary and intimidating, we sat for 16 days at Westminster with senior counsel and others travelling all the way to and from Edinburgh. We also spent one day in Edinburgh looking at the route when, incidentally, we observed to our surprise that the council houses whose protection was the stated reason for moving the railway line were at that point entirely empty and boarded up.

The Joint Committee in its wisdom decided to report the order without amendment. It was passed by Parliament and became law a few weeks before the regional council elections. But that was not all. By then the question of whether this enabling legislation would ever be implemented had become a major issue in a hotly contested regional election campaign. In due course the Labour Party captured the region. Within weeks the new administration had decided to forgo the £6 million of ratepayers' money already spent on, and committed to the road as well as what had been spent on the legislation, and to cancel the project. The road was not built.

The members of the Joint Committee agreed informally that the cost of the procedure to all concerned, not least to the charities referred to by my noble friend Lord Murton and indeed the time demanded of MPs, Peers and panel members, had gone far beyond the reasonable call of democracy and that such a procedure should simply not happen again. Reading the report, it seems to me that the first six recommendations now made by the review committee are highly relevant to this saga. As I read it, if they had been in place in 1985 a road which was predominantly a planning matter would probably not have been dealt with by this procedure at all. If Lothian region had wanted private legislation it would have had to prove that it was necessary. British Rail would have been able to submit its own draft order to the Secretary of State. Had the private legislation procedure been used, questions settled in one forum could not have been raised in another.

The saga of the Edinburgh relief road is an example of what happens in Scotland when modern local politics and the modern media interact with a far from modern Private Bill procedure. To me it proves that change is needed. From the very limited experience of this one operation I congratulate the review committee on its report. I heard what the noble Lord the Chairman of Committees said about the dangers of rigidity but I hope that the first six recommendations will be implemented, in spirit if not in their entirety.

4.23 p.m.

Lord Mountevans

My Lords, one must begin by congratulating the noble Lord, Lord Bancroft on his speech this afternoon and also the noble Lord and his colleagues and the officials who supported them on what is an excellent and fascinating report.

My interest stems from the role of Private Bills as enabling vehicles for transport infrastructure. It is a topic that has been touched upon in almost every speech today. The noble Lord the Chairman of Committees mentioned 13 railway Bills. I think that he and others who mentioned that figure were thinking in terms of railway works Bills. But my analysis of Private Bills before the House at the moment suggests that there are in fact 19 railway Bills in all, but probably I am counting such items as penalty fares legislation when the noble Lord the Chairman of Committees was not. There are I believe 10 port-related Bills, which means that half the Private Bills at present before the two Houses relate to transport infrastructure.

I shall concentrate on the railway side of this issue because, as the noble Lord, Lord Montagu, said, British Rail is probably the largest customer. However, we must not forget that other people are building railways at the moment, and therefore among the other customers, if we are to use that word, we have private enterprise, county and district councils and passenger transport authorities.

It seems to me that the Private Bill procedure is at present the only practical way in which general powers can be conferred for the construction of new railways. I appreciate that there is the mechanism of the light railway order, but that does not seem to have been used very much recently and I understand that that is partly because it has in-built delays and that it does not embrace planning consent or confer compulsory purchase powers.

I believe that the present procedure is a stringent test for promoters of the general worth of their proposals, not only on Second Reading in each House but in particular when one comes to the detailed consideration at Committee stage. Many noble Lords will be aware that one rail-related (but not British Rail) Bill suffered a substantial hiccup—one can put it no lower than that—in an Opposed Bill Committee in this House last Monday. The committee concerned did the right thing. It felt that it was not happy and that the provisions embraced by the Bill were not those that it wished to see. In effect it said, "We do not like this; go away and think again". That is good, detailed scrutiny.

Another advantage that I see of the Private Bill procedure is that it is relatively quick—perhaps 18 months to two years. If one looks at specific Bills, it enables the promoter, be it a metropolitan transport authority or British Rail, to work to a timetable. Railway infrastructure takes time. I believe that 12 years will have elapsed between the time when the thought of a rail link to Stansted was first mentioned in the context of the expansion of Stansted and the time when that railway eventually opens.

I welcome the Joint Committee's proposals for simplifying procedures. I cannot see any reason why many of the minor works that have been mentioned—level crossings, alterations to short spur lines and perhaps even reinstatement of lines that have been lifted—should not be authorised by Ministers under delegated powers provided that two requirements are met. First, one again needs a timetable to give the constructors of the railways a point at which to aim in order to respond to the market circumstances which created the need in the first place. It is important for both the promoters and the objectors to have a specific timetable so that they know where they are. Secondly, where necessary an order authorising a new work or reinstatement would presumably need to include some form of deemed planning consent.

Would that increase the costs and commitment of the promoter? At present we have an annual British Rail general purposes Bill containing perhaps 20 or 30 items which can be treated en bloc in Parliament as opposed to being treated as 20 or 30 different instances. If, for example—I am referring to local instances—we had local planning inquiries as part of the process, one could again see the most enormous delays developing. With such delays of course there is an increase in costs and that is not necessarily a good thing. I take on board totally the views expressed by the noble Lord, Lord Bancroft, on fees, but we have to be reasonable about this. There is an upper limit which in global terms we must consider.

In the case of major projects such as the King's Cross and the Kent Channel Tunnel rail link proposals, I do not feel that delegated powers are appropriate. I have come to the conclusion that the decision must be retained in Parliament and not least because Parliament is a national forum. Many of these issues are in fact national issues.

As I said last week, I have the utmost sympathy with those affected by the 240-metre corridor of the Kentish rail link. From their point of view rationally they are going to fight an eventual Bill tooth and nail. But their poison is another man's meat. The link is deemed to be essential by friends that we all have in Tyne and Wear, the North of England, the Midlands and in Wales. It would be welcomed almost everywhere except by the people in the South and West of England, for whom the line of route is not really relevant. Hopefully there will be other routes for them. Therefore one must have someone taking a national, strategic, and almost a policy review in some respects.

So much has been said about the provisional order system currently used in Scotland, and I do not wish to do more than to say that I feel that it has merits when it works. The noble Baroness, Lady Carnegy, said that most of these ventures took practically no time at all. If we can stick to that, I believe the system is very good. It would have the merit of saving parliamentary time. As I have hinted, investment in the railways is a long-term proposition and the planning and implementation of major projects, and even minor ones such as Stansted, have very long timescales.

We must bear that in mind whatever reforms we adopt. I enter one plea, and that is that whatever we do, let us not bring in a parliamentary route or a methodology that can lead to the problems that we have, for example, as regards the M.3 at Winchester. It maybe that the noble Lord, Lord Brabazon, sitting opposite remembers better than I how long that subject has been under discussion. My memory suggests that it is 15 or 20 years. For many works which become the subject of Private Bills neither the promoters nor the nation can wait 15 or 20 years.

4.32 p.m.

Lord Brightman

My Lords, I begin by tendering my apologies for being absent at the beginning of the debate. I was engaged on an Opposed Private Bill Committee. I welcome this debate because it enables me to ventilate a small point which I have aired in the past. It relates to the evidence before the Committees on Opposed Private Bills. Paragraphs 124 to 127, at pages 35 and 36, of this most admirable report discuss the exchange by parties of written proofs of evidence; that is to say, the exchange by the parties of written statements of the evidence which will be given by their witnesses. In paragraph 126 the Joint Committee expressed the view, with which I respectfully agree: that the production and circulation of written proofs before the first meeting of a committee would help to clarify the matters at issue and would enable all parties to organise in advance their responses to the evidence produced by their opponents". The Joint Committee also recommended that the practice of exchanging written proofs of evidence should be voluntary and not mandatory. Compulsion might impose too great a burden on an inexperienced petitioner who was seeking to defend his rights or his property and who could not afford professional assistance. The Joint Committee then turned to a suggestion put to it that the Members of a Private Bill Committee should be provided with the written proofs exchanged by the parties. The reason behind that suggestion made to the Joint Committee had been that it would enable the Members of a Private Bill Committee to read the written proofs in advance and thus be in a position to tell the parties which parts of the written evidence were accepted and which parts the committee thought should be examined more closely.

The Joint Committee rejected that suggestion, and in my opinion rightly. It rejected it because a member of a Private Bill Committee who had many calls on his time might find it quite impossible fully to absorb the contents of the written proofs in advance of the hearing and thus be able to indicate his view of what should be accepted and what should be examined more closely. I entirely agree with the view formed by the Joint Committee. However, I suggest and advocate that written proofs of evidence, in so far as they are exchanged between the parties, should be sent to committee members for quite another reason. They should be available to committee members to enable those who have the time and the inclination to read the proofs of evidence in advance to make use of that opportunity if they wish to take it. That would enable a committee member if he wished to acquire familiarity with a case in advance of the hearing.

I take the view that it is an advantage to know something about the subject matter of an inquiry, whether it be an ordinary inquiry before a Select Committee or one before a Private Bill Committee, before it begins. In my opinion it matters not that for one reason or another some members of the committee have not read in advance the written proofs available to them and that others may have found time to do so.

I draw on my experience with Appellate Committees of this House. The Law Lords receive in advance all the documentary material relevant to the case which they are later to hear. There is no obligation on a Law Lord to read it in advance. In times past some Law Lords preferred not to do so. The present convention is that a Law Lord should read the judgments appealed from and also the skeleton arguments lodged by the parties. What further documentary matter is read is entirely a matter for the individual Law Lord. I find it advantageous to read a fair amount in advance, but I do not have to do so. I find that it helps me to pick up the arguments more quickly.

We find in practice that the fact that the Law Lords may have read the papers in differing depths causes no problem. I suggest that members of Private Bill Committees should at least have the chance of reading in advance those proofs that have been exchanged by the parties. I refer to the Joint Committee's Recommendation No. (33) on page 54 of the report: Parties to proceedings on opposed bills should send to each other written proofs of evidence before the hearing and so far as possible should agree factual and technical evidence in advance". I wish to add to that recommendation that sufficient copies of such written proofs of evidence should be lodged at the same time in the Private Bill Office for the use of members of the committee.

The only other recommendations that I wish to refer to briefly are, first, the immediately preceding one, No. (32): The Private Bill Offices should collect estimates of the length of proceedings from all parties and should supply members of the committee with an overall estimate". I should like to add that the importance of keeping within such estimates should be impressed on the parties. Few things cause greater inconvenience to members of a Private Bill Committee than a Bill which overruns its time.

I should also like to refer briefly to Recommendation No. (37): During an experimental period parties to private bill procedure should be offered the option of a joint committee". It seems to me that it is worth trying that out for an experimental period. I should have thought that it would inevitably save a lot of expense for the parties and particularly for the petitioners, and it is possible that it would also save the time of members of the committee.

4.41 p.m.

Lord Ponsonby of Shulbrede

My Lords, I should like to start by thanking the noble Lord, Lord Bancroft, for his comprehensive and masterly introduction to this report. Indeed, having heard his introduction, I felt that there was little need to repeat some of the points that he made. I should also like to add to his remarks and the remarks of others a tribute to those who have served as members of the Joint Committee. I am told that your Lordships, members of the Joint Committee were particularly assiduous in their attendance at meetings, and I am sure that that is a good thing. I regret, however, that neither of my noble friends who served on the committee is able to be with us this afternoon due to ill health. My noble friend Lord Strabolgi was particularly hoping to speak but has been advised by his doctors that he should stay at home.

My particular involvement with the work of committees examining Private Bills has been in trying to persuade noble Lords to serve on them. When the Joint Committee was established in 1987 this was not a problem in your Lordships' House, as the noble Lord, Lord Bancroft, pointed out when he introduced the report. It was very much a problem in another place. This was underlined by the Lord Chairman when he pointed to the fact that a large number of Bills have now been introduced into this House. This, I fear, is now very much a problem in your Lordships' House.

Your Lordships have been asked to serve on an increasing number of committees, a number of which have had very lengthy sittings. It is, I always think, a rather incongruous situation where you have noble Lords sitting in a judicial capacity on a Select Committee of this sort for weeks on end without any form of remuneration, listening to barristers possibly being paid large fees by promoters for being in attendance. Some noble Lords still do not appear to realise, however, that selection to serve on a Select Committee to examine a Private Bill is indeed an honour and an important duty, and that only those noble Lords who have not committed themselves to the matter under consideration by a Private Bill are eligible to sit on a particular committee.

The Joint Committee has tackled the problem of works Bills which have abused parliamentary procedures with considerable gusto. The will of Parliament is needed when no other legislation will provide some particular power required by a promoter—indeed this has already been mentioned—such as for fencing in the New Forest, building below a low tide mark or protecting the railways from nuisance actions.

Unfortunately—and this point has been underlined in more ways than one by the noble Lord the Chairman of Committees—promoters have recently taken to tagging on to such requests for parliamentary approval vast schemes requiring normal planning consents. This process, as the noble Lord, Lord Bancroft, has already said, has been referred to by the Lord Chairman as "a small tail wagging a large dog".The proposal of the Joint Committee that, if the essential purpose of a Bill does not require legislation, Parliament should reject the Bill until the main purpose has been authorised is obviously a right view. As a group of petitioners put it to me, it would really be like Parliament authorising a public inquiry.

The Lord Chairman in his contribution to the debate today put it the other way round. He suggested that Parliament should agree in advance as to what requires parliamentary consent, and that for the remainder of a Bill, which would be subject to planning consent, the promoters should be required to go out and get that consent first. Whichever process is finally decided to be the right one, one must take a view on the process itself.

As noble Lords have said, promoters prefer the Private Bill procedure, while petitioners prefer the public inquiry procedure. The restrictions of the Private Bill procedure do not allow a number of concerns to be properly aired. There is concern that more effort should be made to guide potential petitioners through the intricate labyrinth of Private Bill procedure; in particular, that clear advice about petitioners' locus standi should be made available generally and, if possible, the issue of locus standi should be settled before the start of the proper Committee stage so as to avoid the incurrence of substantial costs.

That of course is only one half of the problem. The other part of the problem was touched on by the noble Lord, Lord Montagu of Beaulieu, as to the question of the locus standi rules themselves. If the rules are drafted in such a way as to exclude English Heritage, the Nature Conservancy Council and other organisations, those rules themselves will need to be looked at again. But if we do that we are of course facing ourselves with the potential problem of broadening the parliamentary procedure to such an extent as to make it even more onerous, so that one comes back to the thought that the committee's recommendations are the right way forward.

The committee says—and I quote from the press release— If the essential purpose of a bill does not require legislation, the Committee recommend that Parliament should reject the bill until the main purpose has been authorised in the proper forum". I am told that the promoters of the Spitalfields Bill, currently before your Lordships' House, have behaved immaculately in that they have obtained all the necessary planning consents before coming to Parliament for just that section of the Bill that requires your Lordships' approval.

The noble Baroness, Lady Carnegy of Lour, the noble Lords, Lord Foot and Lord Wilson of Langside, have spoken about their particular experiences in serving on Private Bill Committees. The noble Lord, Lord Bancroft, has spoken about the other recommendations in the report such as fees and the timetabling of Private Bill procedure. These appear to have aroused little controversy in your Lordships' House, and I see no need for me to go into greater detail in these matters.

This report has defined the particular problem which it was set up to define. It has suggested ways of taking action. I am sure that we are all looking forward to hearing what the noble Lord the Leader of the House has to say about the possibility of action being taken. If action is not taken, this House and another place will be overburdened in the future with more Private Bills. It is essential that something should be done.

4.50 p.m.

The Lord Privy Seal (Lord Belstead)

My Lords, I should like to join the noble Lord, Lord Ponsonby, in thanking the noble Lord, Lord Bancroft, for giving us the opportunity to consider this complex subject and the report by the Joint Committee of your Lordships' House and another place. This is no ritual expression of thanks. The complexities of the Private Bill procedure, shown by the fact that it requires some 200 pages in Erskine May to explain it, can be baffling for those who confront it for the first time.

I should also like to join noble Lords in thanking my noble friend the Chairman of Committees. In his memorandum to the Joint Committee my noble friend Lord Aberdare said: I think it would be fair to say that Private Bill procedure in the Lords works smoothly and expeditiously". Despite the talent in your Lordships' House, with the best will in the world these things do not simply happen. I am sure I can speak for the whole House when I express appreciation of all that my noble friend does in this role to ensure the smooth and expeditious handling of Private Bills. I note his comments about the increased burden these Bills have imposed on the House in recent months. I echo his thanks to all noble Lords who serve on Private Bill Committees.

As your Lordships know, there has been a debate in another place on the Joint Committee's report. The Government also wish to hear the views of your Lordships and the debate has achieved that purpose. We shall be considering all the views expressed but the House will understandably wish to have some indication of the Government's initial thinking on the report's recommendations.

The very nature of private legislation means that it confers particular powers or benefits on a person or body of persons beyond or in conflict with the general law. But if Private Bills are for the interest or benefit of one or several persons, a group or some public or private body, that may mean that they are also to the detriment of others. I would emphasise that Private Bills are not a means of giving any additional powers to the Government. Any Bill that included such provisions would be classified as a hybrid Bill.

With these considerations firmly in mind I would make two general points. First, the Government would welcome procedural streamlining which lessens the burden on noble Lords if that streamlining also retains the essential rights and safeguards for both promoters and petitioners. Secondly, I think it is fair to claim that taken by and large the existing arrangements have served well in the past. We should not therefore lightly contemplate making major changes, especially if the effect would be to remove or lessen parliamentary control.

The Joint Committee's report is not simply a series of recommendations for procedural change. It is a far-reaching assessment of the whole basis of Private Bill procedure in the modern age. If its main recommendations were implemented in full the scope and range of Private Bill procedure would be revised in a major way. For these reasons this important report requires most serious consideration. Like my noble friend Lord Aberdare, I think that the report's recommendations can be conveniently split into four groups. Within these groups some of the proposed changes could be brought about only by legislation, some by amendments to Standing Orders, while others, which might be termed exhortations for a change or improvement in practice, could simply be brought into effect.

The first group of recommendations which relate to the first five recommendations of the report is of a general application and would reduce the range of private legislation by restricting it to matters which could not be handled in any other way and by diverting matters which could be pursued by other means into other channels. The Government understand and sympathise with the wish to impose greater discipline on promoters of Private Bills. But in seeking to achieve this, surely we should not replace the present Private Bill procedures with other procedures that are too rigid.

Every Private Bill already has to contain a statement that the purposes of the Bill cannot be effected without the authority of Parliament. It has, I know, become customary for promoters to include in their Bills a range of measures, some of which require parliamentary authorisation and others of which do not, so that a complete package may be presented to Parliament. I can well understand why this should be so. It could be cumbersome, expensive and time-consuming always to insist that two different processes should be complied with. On the other hand, I am well aware of the view that promoters may use Private Bills to avoid more expensive and time-consuming procedures. On that point I am in full agreement with the Joint Committee that we should have no sympathy with promoters who simply push their luck in this respect.

The Joint Committee has also recommended that when the primary purpose of a Bill can be authorised through other means, those means should be pursued first, leaving Parliament to deal only with those aspects which require parliamentary approval. Deciding the primary purpose and determining whether planning considerations are dominant, which is a related recommendation of the report, may be a matter of subjective judgment. A two-stage process whereby the promoters would be required to seek planning permission before promoting a Bill on related aspects of a project might well result in putting the cart before the horse. Even if the process could be made to run smoothly it would inevitably be a long-drawn-out and expensive one.

In the case of a controversial proposal, I wonder whether the Joint Committee's hope that Parliament should confine its debate to the narrow subject matter of the Bill and not address itself to the wider issues already decided by non-parliamentary procedures might turn out to be forlorn and unrealistic. Perhaps the proposals would work well in some cases, but I wonder whether that would be so when considering a controversial issue which Parliament had not had the opportunity to consider before. In that case the result could be wasteful duplication.

The second group of recommendations, which run from six to nine, would involve the introduction in new primary legislation of ministerial order-making powers in respect of various matters relating to railways, trams, highways and harbours to replace Private Bill procedure and thereby effect a further reduction in the amount and range of private legislation. At present, Private Bill procedure is the only way of giving statutory powers for the construction and operation of railway lines of any kind, including tram. If these were replaced by order-making powers given to the Secretary of State, control over such schemes would be removed from Parliament. The recommendation that railway work should be authorised by an order-making process would require primary legislation.

I should say that the necessary legislation to implement this recommendation would need to cover not only new order-making powers for British Rail and London Regional Transport legislation but also the modernisation of some old legislation from the last century so as to deal satisfactorily with the increasing number of light rapid transit schemes that are expected to come forward over the next few years. Consultations would be necessary with the local authority associations on whether local authorities should be empowered to deal with some of the matters now dealt with in Private Bills. Other interests, including the operators, would also have to be consulted.

I mention these points simply to emphasise that major and complex legislation would be involved if we were to go down that route, and we would need to be satisfied in detail that the alternative arrangements would represent an improvement. The Private Bill procedure is a long-standing, tried and tested way of dealing with rail schemes. I was glad that the noble Lord, Lord Mountevans, recognised the strong case that there is for Parliament dealing with major rail schemes.

As with the proposals for rail schemes, the recommendation that the scope for harbour orders should be broadened and that the option of proceeding by Private Bill should be removed would also require primary legislation. On this recommendation and on those relating to railways and trams, I know that my right honourable friend the Secretary of State for Transport will study closely the views expressed in this debate as well as those expressed in another place. If on closer examination there appears to be general support for the proposals he would be willing to consider the possibility of consulting further with the various interests concerned.

There is also a recommendation in the Joint Committee's report that the Highways Act should be extended to permit stopping up orders to be made on safety grounds to include the stopping up of footpaths and bridleways, and there will be consultation between my right honourable friends the Secretaries of State for Transport and for the Environment about this. That is a recommendation that we should be able to accept but it would require primary legislation and this will have to await a suitable opportunity.

To summarise the Government's view on those first two major groups of recommendations, the effect would be to eliminate a whole range of topics that at present can come before the House as private business. There would undoubtedly be some advantages in that but there would be disadvantages too, and in expressing the Government's reservations I hope I have drawn attention to some of the practical disadvantages which could result. In particular, I think there is a need to retain flexibility rather than impose undue rigidity. It is surely right that Parliament should not be precluded from the scrutiny of major projects which affect rights and interests.

There is a tendency for the Private Bill procedure to be sold short sometimes in any comparison with planning procedures. That is, I think, a little unfair. It is argued—and the noble Lord, Lord Bancroft, rightly reminded us of the arguments put forward by some petitioners—that the complexities of the Private Bill procedure and the daunting prospect of having to appear in a quasi-judicial forum favours promoters rather than petitioners. I think that criticism by petitioners is less than fair. I am well aware of the care and trouble which the Bill committees take to put petitioners at their ease and give them a fair and sympathetic hearing. The Private Bill procedure, do not let us forget, gives greater scope for negotiation and compromise while matters are in progress. Once an inquiry in the planning process has opened there is little if any room for negotiation leading to amendment of the proposals.

The third group of recommendations—that is, 10 to 39 and 50 to 52, leaving out the Scottish proposals—deals with matters of detail and procedure, many of which are of more particular relevance to another place. I would say that while there are some proposals on which we have doubts or reservation there is a large number that we will support. We shall take full account of the views expressed in today's debate, not least those of the noble and learned Lord, Lord Brightman, in our further consideration of these detailed points. There are, however, three recommendations on which I should like to comment briefly.

One is Recommendation No. 37: that during an experimental period parties to Private Bills should be offered the option of a Joint Committee. Let me say straight away that the Government are quite neutral on that recommendation and are content to leave this to the House and another place. It is only right that if accepted that recommendation should be conditional on the procedure being acceptable to both parties, and with the thought always in our minds that it might in practice be more attractive to promoters than to petitioners, a point very much in the mind of my noble friend Lord Murton of Lindisfarne, who pronounced himself to be against that recommendation.

The second matter with which I can deal in one sentence is that the Government welcome the simplification of the fees system.

The third is the other procedural recommendation; namely, environmental impact assessment for Private Bill procedure. As with many other of the Joint Committee's procedural recommendations, it will be for this House and another place to decide whether to amend Standing Orders as proposed in the committee's recommendation. In this particular case the Joint Committee envisages procedures under which the Department of the Environment and other departments would determine whether environmental assessment is in fact necessary and would later report on the environmental statements which promoters would be required to submit to Parliament.

As my noble friend Lord Murton said, requirements for environmental assessment have already been introduced for projects which are approved under statutory procedures to comply with the European directive on environmental assessment. The directive does not apply to projects approved by specific acts of national legislation which would include Private Bills. However, the Government have said that for public Bills relating to projects to which the directive would otherwise apply, such assessments shall be undertaken. We are therefore in favour of the concept of environmental assessment in appropriate cases and we support the Joint Committee's recommendation.

In particular, we are willing for government departments to undertake the functions envisaged for them in that recommendation and we are ready to consult about the way in which those aspects of the recommendation which would affect procedures outside Parliament can best be implemented.

Lord Kennet

My Lords, will the noble Lord add some details to those extremely important words. He said that the Government were in favour of applying the same environmental assessment regime to Private Bills as to public Bills in appropriate cases. Does that mean that a project that comes before Parliament in a Private Bill which would, had it come in a public Bill, have been subject to environmental assessment will always be subject to environmental assessment?

Lord Belstead

My Lords, if the noble Lord will be good enough to glance at what I said when we have Hansard, he will see that that is not exactly what I said. The recommendation deals with the part which needs to be played by government departments. What I have said this afternoon is that we accept absolutely the Joint Committee's recommendation and the part which government departments would need to play.

The fourth group of recommendations deals with private legislation procedure for Scotland. The practical difficulties involved in implementing the Joint Committee's proposals to limit the range of private legislation apply as much to Scotland as they do to England and Wales. The burden that Scottish private legislation procedure imposes on noble Lords is usually much less than for Bills relating to England and Wales. My right honourable friend the Secretary of State for Scotland believes that there is no strong case for change in Scotland but he will study closely the report of this debate. The detailed Scottish procedural points are largely acceptable.

The noble Lord, Lord Bancroft, emphasised that some of your Lordships and Members of another place consider that the Joint Committee's recommendations should be seen as a total package and not as a list from which acceptable, and particularly easy, items should be selected. I understand that viewpoint but, as I have explained, even if the major recommendations were eventually accepted they would have to be preceded by consultation and then implemented by primary legislation. Those who advocate the total package concept would have to accept that changes in procedural arrangements on which there might be a wide measure of agreement would have to await that legislation. I doubt too that with a detailed report of this nature it will ever be possible to have a total unanimity of view so that the total package argument would be difficult to sustain. That is something which it is fair to say my noble friend the Chairman of Committees recognised in his speech.

As the noble Lord, Lord Ponsonby, said, some of your Lordships have referred to important and specific instances. I realise that those specific instances were in mind when the idea of a Joint Committee was set up. The debate has ranged from Okehampton to Edinburgh via King's Cross and Lyndhurst. As I listened to the debate, I was reminded of Gilbert's lines: They left Clapham Common away on the right, And made Madagascar the following night, And lay on their oars for a fortnight or two, In the calm of the ocean of Honolulu". The only specific instance which perhaps I should take up, because it was so important and it was spoken about with great feeling by the noble Lord, Lord Foot, and others of your Lordships, is the question of special procedure orders. The noble Lord specifically referred to the orders which are dealt with in recommendations Nos. 50 to 52. My right honourable friend the Lord President dealt with the government answer to those recommendations in another place. All I ought to say is that we do not think it right to prevent debate by moving that petitions of general objection be not referred to a Joint Committee. Even if the Government consider the order esential, there will always be detailed considerations to be given to the proposals. Although I recognise the dissatisfaction of my noble friend Lord Murton and the noble Lord, Lord Foot, in the terms of recommendation No. 51 the Government do not feel that they overrule a Joint Committee if they present a confirmation Bill. It is after all for Parliament to pass the Bill or not to pass the Bill. It could equally be said that the Government might frustrate Parliament if they did not present a Bill. After all, the House will recall that there were strong feelings on both sides in the Okehampton case.

Perhaps I may once again thank the noble Lord, Lord Bancroft, for moving the Motion today, and indeed thank all your Lordships for taking part. I hope that my comments on the major recommendations have not appeared unduly cautious. I have tried to set out some of the practical difficulties in some of these recommendations and the advantages of the present system and the flexibility they allow. I wish also to emphasise the importance of Parliament being able to scrutinise some of the major projects which are coming forward in the form of Private Bills. On matters of detail and procedure I have indicated that many of these will have our support. But at this stage the important thing is that we now have the views of your Lordships' House to assist our further consideration of this most important report.

5.11 p.m.

Lord Bancroft

My Lords, with the leave of the House, I am immensely grateful to all noble Lords who have taken part in this extremely interesting debate. As the noble Lord, Lord Belstead, recognised, we are dealing here with major issues of national development policy designed to last for at least another generation or so.

It is only natural, given the timing, that the matter of the King's Cross and the Kent railway Bills should have been raised with feeling. However, I repeat my plea that this highly important but essentialy short-term matter should not be mixed up with consideration of the Joint Committee's recommendations which are essentially long term.

As to railways, light transit and tramways generally, I must repeat the Joint Committee's view that it is a historical accident that Parliament delegated authority for motorways, but did not delegate similar authority for railways. This is anomalous and the Joint Committee felt that at the right time it should be put right. I was encouraged by the remarks of the noble Lord, Lord Aberdare and also by the comments and reponses of the noble Lord, Lord Belstead. I hope very much that our recommendations as a whole will be sympathetically considered by those concerned.

One other main limb of our recommendations, what I call the Lyndhurst principle, ought to be considered. It is fair to claim that a committee might amend a Bill of the Lyndhurst type—if I may use that shorthand—to make the developer go on from Parliament to the planning authorities. The Joint Committee considered that approach. We felt that Members would be reluctant to take time and trouble over a Bill if the final word rested with the local town hall. Indeed, a Select Committee in another place took this very line in 1986 on the South Yorkshire Light Rail Transit Bill when it discovered that the highway authority had not given the necessary consent. The committee adjourned for 14 months until the city hall had been "squared away".

Reference has been made to possible duplication between the Select Committee procedure and the public inquiry procedure. The noble Lord the Leader of the House said, I think, that it was perhaps forlorn to hope that this duplication would not happen. It has not happened: I cited a case where it has not happened. Perhaps I may single out for a moment the suggestions of my noble and learned friend Lord Brightman on procedure. I personally entirely welcome them, and I am pretty sure that the Joint Committee would also do so.

Finally, I think it is fair to say that with a few totally natural reservations the main thrust of the Joint Committee's recommendations has been resoundingly endorsed by both Houses, as the noble Lord the Leader of the House pointed out. In the committee's view the recommendations form a balanced menu, although, as I said earlier, they do not necessarily need to be taken from the same plate. So if, in terms of timing, there are to be hors d'oeuvres, we should not turn up our noses by any means. But we wish them to be hors d'oeuvres and just that, followed inexorably, in due course and after proper consultation, by the main meal. The Joint Committee hopes that a radical government would not shy away from radical measures, even involving primary legislation, after due consultation.

I conclude by reminding your Lordships of the final paragraph of the report echoing much of what the noble Lord, Lord Belstead, said. It says that, private legislation continues to form a vital part of the work of Parliament. It involves quasi-judicial functions which some members may find inconvenient. But there will continue to be private legislation as long as the citizen enjoys the righ t to petition Parliament for relief not obtainable elsewhere, and Parliament owes a duty to the people to give such legislation time and attention". I commend the report to your Lordships.

On Question, Motion agreed to.