Lands Tribunal Bill
Lords Amendments considered.
Clause 1—(Establishment And Jurisdiction Of Lands Tribunal)
In page 2, line 23, at the end, insert:
"(e) any question on which, but for this provision, an appeal or reference to the county court would or might be made by virtue of sections forty-nine, sixty-two or eighty-seven of the Local Government Act, 1948."
3.44 p.m.
This Amendment affects a matter of Privilege, and I direct that the necessary entry be made in the Journal.
I beg to move, "That this House doth agree with the Lords in the said Amendment."
This was a Government Amendment providing that rating appeals should in future go to the Lands Tribunal established under this Bill instead of going, as they do now and have done recently, though not for long, to the county court. The hon. and learned Member for Wirral (Mr. Selwyn Lloyd) moved an Amendment to this effect, I think, on Report in this House, and he was kind enough to withdraw it on my undertaking that we would give the matter careful consideration. We have done that. We thought that the suggestion which he made was a meritorious one, and consequently we moved it into the Bill in another place. The Lands Tribunal will be an expert body specialising in the somewhat technical and difficult matters of valuation, and whilst I need hardly say that we have the highest regard for the county courts—indeed, we regard them as most important and competent tribunals—there will be great advantage to be obtained, both as regards uniformity of decision—all rating appeals going to the same tribunals—and the technical knowledge which the Lands Tribunal will possess. We think, therefore, that the Amendment will effect an improvement in the law relating to rating.I merely rise to express the gratitude of the Opposition for the con- sideration given to this point which was first raised in the House by my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd). The Attorney-General has concisely stated the reasons for the Amendment. I need add nothing to commend them to the House, but again I say that we on this side are grateful for the way in which the matter has been dealt with.
While appreciating that the Land Tribunals will be far more knowledgeable and will unquestionably have more uniformity in their actions, has the right hon. and learned Gentleman considered the desirability of having local knowledge which will be so essential where people are either appealing to have their rates decreased, or where the rates have been increased? Can the right hon. and learned Gentleman say whether such appeals will be heard by people who have actual knowledge of the particular area?
Of course, I cannot undertake that members of the Tribunal as constituted to hear a particular appeal will have special knowledge of the locality from which the appeal arises. That would be quite impossible in a tribunal which is a central tribunal of this kind, but the expert members of it, the surveyors, will be men of very wide experience, and, of course, they will be entitled to hear the evidence of other professional gentlemen with the necessary local knowledge.
Question put, and agreed to.
Lords Amendment: In page 3, line 21, at end, insert new Clause A:
Any person aggrieved by the determination of a development charge by the Central Land Board under section seventy of the Town and Country Planning Act, 1947, may within twenty-eight days of the receipt by him of the notification of the development charge, appeal against such determination to the Lands Tribunal and the Lands Tribunal shall have jurisdiction to hear any such appeal and shall make such determination as it may think fit and section three of this Act shall apply to an appeal under this section.
I beg to move, "That this House doth disagree with the Lords in the said Amendment."
This Amendment gives a right of appeal to the Lands Tribunal to be established under the Bill in the case of development charges assessed by the Central Land Board under Section 70 of the Town and Country Planning Act, 1947. This is a matter which, on its merits, has already been considered and, if I may say so, very fully considered more than once in this House. It may or may not be the case—I shall say something about it later on—that there is some merit in the proposal in itself, but the Amendment providing for these appeals to this Tribunal seems to have been moved into this Bill in another place under a complete misapprehension in that other place both as to what the Town and Country Planning Act, 1947, did and as to what the present Bill is intended to do and what it does. I venture to think that whatever the merits of the proposal that there should be an appeal from the Central Land Board's assessment of development value may be, this Amendment seeks to deal with the matter in a way which is wholly unworkable and inappropriate. It appears to have been thought in another place that this really very simple little Bill did something quite different from what it does. It appears to have been thought, and, indeed, it was stated—I think that in another place they proceeded on this basis—that this Bill created a new right of appeal under the Town and Country Planning Act which had not existed before, and so it was said that as a new right of appeal was being created under that Act in one case, it ought also to be created in another case. That argument, if it is true, is always an attractive one, although it is not always a quite valid one, but, of course, if it is not true, it hardly amounts to an argument at all. The position under the Town and Country Planning Act is this, and it appears not to have been understood by the noble Lords at all; under the Act as it exists at present—and it is not amended in this respect by the Bill; or, at any rate, it was not amended until this Amendment was moved in another place—development valuations arise in two quite distinct and separate connections. Under Section 60 of the Act an assessment has to be made of the lost development rights in connection with claims to compensation against the £300 million which is set aside for this purpose. That is the first occasion in this connection in which an assessment has to be made of development rights. Under Section 70, an assessment is made of the amount of the development charge which has to be paid by the owner of land when he is developing his land under a development permission. These are the two cases in which the question of development value arises and, under the Act, the assessment in the first place, under Section 60, is made in the first instance by the Central Land Board and is appealable from that Board to the official arbitrator. That was the position as laid down in the Act at the time when it was passed in 1947. Under Section 70, on the other hand, no appeal from the decision of the Central Land Board was provided for and what seems to have happened in another place, as far as we can judge—or at any rate as far as I am entitled to say in this House—was that the noble Lords appear to have been misled by the fact that in this Bill we are proposing to transfer the functions of the official arbitrators to the Lands Tribunal into thinking that we were creating a new right of appeal in the cases arising under Section 60, where no such right of appeal had existed before, so they say, "If you do that, if you create a new right of appeal from the Lands Tribunal under Section 60, why do you not do it under Section 70?" As I said, that would be a very proper and a very attractive argument, if it were true; but it is not true. Under Section 60 the appeal to the official arbitrator, previously, and under this Bill the appeal to the Lands Tribunal, was created by the Act itself and Parliament, for reasons which no doubt satisfied it at the time, decided that there ought to be a right of appeal in the case of the assessment under Section 60 but that there ought not to be a right of appeal in the case of the assessment under Section 70; and this Bill in no way touched what had been done by Parliament in the Town and Country Planning Act, 1947. All that this Bill pretended to do, all that it seeks to do by its long title, is to transfer the existing rights of appeal away from the official arbitrators to this new tribunal which is established in their place. It does not, I think, appear to have been sufficiently realised that this Bill is purely a machinery Bill, designed to improve the administration and the procedure of the existing law, but not in any way to alter the substantive law itself. I am bound to say—and the hon. and learned Member for Daventry (Mr. Manningham-Buller) will have in mind very much what I mean—that if in procedural Bills of this kind, where we are seeking to improve the machinery of the law, attempts are made to introduce matters of principle and to bring about changes in the substantive law itself, it will be very much more difficult for those of us who, like the hon. and learned Member for Daventry, want at least to reform the procedural and machinery part of our law. The fact is that the present Bill is a Bill designed and intended simply to do that—not to effect any change at all in the substantive part of the law but to improve the machinery and the procedure by which the law as it exists today can be operated. That is the main ground on which I must resist this Amendment. There are a number of other grounds. For instance, the Amendment apparently does not apply to Scotland. I see my right hon. and learned Friend the Lord Advocate beside me, and he may have some views about that, but I should have thought it would be quite inappropriate, and it might have occurred to another place to have been quite inappropriate, to have a system of appeal from the Central Land Board in England under this provision and not to have a like system in operation under the corresponding provisions for Scotland. But, more important than that point, which no doubt could be dealt with, is perhaps this: that if we are to have an appeal from the decision of the Central Land Board under Section 70—and the arguments for that and against it were fully deployed in 1947 when the Bill was debated—we must have some kind of code of assessment of development value on which the appeal can be founded. That is, in fact, the position in connection with appeals under Section 60, in connection with claims against the £300 million. In that case there is an elaborate code of assessment laid down and the question which the official arbitrator has to consider when a matter on appeal conies to him is whether or not the Central Land Board have applied the code correctly in the circumstances of the particular case. Of course, where there is a code setting out the rules and principles on which the compensation is to be assessed, that may be very apt matter for appeal, but in respect of the development charge to be levied by the Central Land Board under Section 70 of the Act no precise code has been provided. The House will remember that the matter is governed in part by the Act and in part by regulations under the Act, and the Act and the regulations taken together leave the Central Land Board a very wide discretion as to the amount of the development charge which should be levied. The regulations were approved by Parliament and it was no doubt the intention of this House, both in passing the Bill and in assenting to the regulations, that the Central Land Board should have that discretion. The governing principle on which the charge is levied is that the charge shall be suchBut then the regulations go on to say that the charge"… as to secure as far as is practicable that land can be freely bought and sold at a price neither greater nor less than its value for its existing use value."
and these are the words which I emphasise, because these are the operative words, giving a discretion to the Central Land Board and not to anybody else—"shall not be more than the amount which, to the satisfaction of the Central Land Board"—
Then, again, the regulations go on to say that it shall not be less than that amount unless in the opinion of the Central Land Board there are special reasons why it should, in fact, be less. That is the general position under the Act and under the regulations, and in quite a wide variety of cases the Central Land Board is given power to apply the general governing principle which I have mentioned, subject to such modifications as, in their opinion, are appropriate to the particular case. 4.0 p.m. We are not unfamiliar in this House with statutes or regulations which provide that something may be done by a Minister, by some tribunal, by some Government Department, "if it is satisfied," "if it considers it expedient," "if he regards it as being in the public interest." Where matters are fairly and squarely vested in the discretion or opinion of one Minister or tribunal or Department in that way we cannot have an appeal on those matters to another tribunal unless we transfer the same discretion to that other tribunal. This Amendment which has been moved into the Bill in another place does not attempt to do this, and no doubt very wisely; but if the Bill went through in its present form with this Amendment in it, and appeals took place to the Lands Tribunal, the Tribunal would have to say—as over and over again the courts say when appeals are sought to be made to the courts in cases where something has to be decided by a Minister or Department, "if he considers it expedient," "if he is satisfied," "if in his opinion," and so on—"This is an attempt to substitute for the opinion of the board and the discretion of the board the opinion of the Lands Tribunal, but we are not entitled under this statute to have an opinion in the matter at all." The statute—the 1947 Act, I mean—fairly and squarely places the responsibility for being satisfied, for forming an opinion about those matters, on the Central Land Board, and if the Central Land Board says it is satisfied that the charge should be so and so, or that it is satisfied that, for particular reasons, it should be more or should be less, then, "We have no authority," the Tribunal would have to say, "to interfere with its decision and to substitute our decision and our discretion for that of the Central Land Board, which is vested with responsibility in the matter." It may be—I do not know—that on the merits, after there has been experience of the working of the Town and Country Planning Act, there may be something to be said for providing a system of appeals under Section 70. I do not know; I am expressing no opinion on it; but I can quite understand that there is an arguable case, on the merits of the matter, that there may be something to be said for that. I am not conceding it, and not debating it; it would not be my province so to do; but if there were such a case on the merits for having a system of appeal, then—and I think that the right hon. Gentleman will agree with me on this—it would be essential to work out a more precise code to guide the Central Land Board and the Lands Tribunal in dealing with the matter. We should have to have a code binding the Central Land Board, and we should have to have the possibility of the Land Tribunal's considering whether, in a particular case, the Central Land Board had departed from that code or not. Until we laid down a code of that kind any system of appeal such as is envisaged in this Amendment would be, in my submission, completely abortive. I have said that I am not dealing with the merits of the question whether or not there should be an appeal. It is enough to say that the present Clause is wholly inapt, and the merits of the proposal would require much greater consideration than has been given to it, or than it would be proper to give to it in a machinery Bill of this kind. It is quite clear, I think, that if an appeal were provided under Section 70 it would be necessary to amend the Town and Country Planning Act itself, because that Act was drafted on the basis that there would be no appeal from the decisions under Section 70. I am quite sure and must so advise the House, that the present Clause would have had to be drafted in an entirely different way, and embodied in the Town and Country Planning Act itself, if it had been intended to provide such an appeal. I am quite sure that in another place this Amendment would never have been moved into this Bill at all, and it would have been appreciated that wholly different considerations applied to the matter, if it had not been thought mistakenly that we were creating a new right of appeal under Section 60, and that therefore there was no reason why we should not create it under Section 70, too. But that, in fact, was not what we were doing. All we seek to do here is to transfer existing rights of appeal to what we think would be a more effective tribunal."represents the additional value due to planning permission."
I regret that the right hon. and learned Gentleman has given to the House the advice we have just heard, because I find myself in complete disagreement with him, and I propose to advise in the contrary sense, namely, that we should agree with the Lords in this Amendment. The right hon. and learned Gentleman seemed happier, if I may say so, when dealing with the technicalities with his usual skill, than he was in dealing with the merits of this proposal. I detected, I thought in his speech a desire—to put it at its lowest—not to pledge himself to the theory that it is an inequitable or a wrong thing to give one of His Majesty's subjects a right of appeal against a decision made against him.
To clear up one preliminary matter, I do not agree with his interpretation of the course that was taken in another place, or of the arguments on which this Amendment was urged in another place. It is true that there was sought a right of appeal, based upon the fact that appeal is transferred to this Tribunal under Section 60 of the Town and Country Planning Act; but I do not think the argument was that because it was allowed in Section 60 it ought to be allowed in Section 70. I think the contrast of the two sections was to show that the matters which are to be decided by the Tribunal under Section 60 are precisely matters of the same kind as fall for decision under Section 70, and that, therefore, the Tribunal which we are now setting up for the first time, is a fit and proper body to hear these appeals, the right to which should be given. Contrary to the right hon. and learned Gentleman's method of dealing with this matter, I propose to base my argument in favour of agreement with the Amendment upon the merits rather than upon the technicalities of the case. I realise, of course, that on the narrow ground of a Lords Amendment I cannot develop a very wide front of discussion and that I must confine myself very strictly to those defects in the present system which, I think, would be much mitigated or ameliorated by the acceptance of this Amendment. As the right hon. and learned Gentleman has said, at present there is no right of appeal from the determination of a development charge by the Central Land Board. This determination, in fact, as the system now works, is a determination by the district valuer in the district. This was a point of acute controversy between us during the passage of the Town and Country Planning Act, and we on this side argued that there should be such a right of appeal; but we were overborne by numbers and the Guillotine. The argument put against us, and the argument which has been repeated again in another place on this matter of the merits apart from the technicalities, was that this power to fix development charges must be elastic, so that it could be used, in short, as an instrument of planking policy to encourage development in one place and to discourage it in another, so that where we wanted to encourage development we could fix a low charge and where we wanted to discourage it we could fix the charge at the maximum. It was said, therefore, from that—and the right hon. and learned Gentleman's argument today had echoes of that argument—that this determination took into account matters of planning policy, and that it was more a matter of administration than a subject fitted for judicial decision. Therefore it was not a matter which could be properly dealt with by way of an appeal to a tribunal. We are wiser now than we were when the Town and Country Planning Act was going through, in that we have had nearly a year's experience of its operation. I think that it is incontrovertible that events have shown that this argument based on the administrative and elastic character of the determination is quite baseless when one appeals to the facts as they exist today. Is it asserted in any way that district valuers are instruments of planning policy? They have had no instructions to modify the charge according to whether or not the development is more or less desirable; of course not. Whatever may have been in the mind of the Government when they proposed this particular passage of the Town and Country Planning Act, it is quite clear that there has been a change in the policy since then, and that argument no longer holds water. I have to rely on cases reported either in the Press or by my numerous correspondents on this subject, but I tell the House that there is no doubt in my mind that matters of planning policy enter not at all into the determination of the development charge. The "Liverpool Echo" on 9th February described the case of a Mr. Crook who is a chemist and sub-postmaster at Park Gate, near Liverpool. Being anxious for his customers' convenience, he wanted to move to premises next door and set up a post office there so that he might have more counter space. The Central Land Board demanded a development charge of £100. The General Post Office took the matter up on behalf of their sub-postmaster, and they told the Central Land Board that in the interests of the public service it was considered imperative to have the post office transferred to more suitable accommodation. They asked that the £100 charge be either waived altogether or reduced, as this was a matter of public interest. I believe that my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) took the matter up with the Central Land Board; at least the newspaper so reports, and it says that Sir Malcolm Trustram Eve, the distinguished Chairman of the Central Land Board, wrote back and said, among other things:There is a clear case of public interest on which there is no dispute by the Post Office itself, which is a very good judge of the convenience of its customers. Another Government Department accepts that in the public interest the post office should be enlarged, and yet the Central Land Board have no power—and I take Sir Malcolm's word for it because he operates the Act—to modify the charge according to the public interest. If that be the case, the determination of a development charge becomes a matter of simple survey and valuation and, as such, it immediately comes into the category of disputes, as to which there should be a right of appeal. It is a question for decision exactly on all fours with the question under Clause 60, and exactly on all fours with the rating appeals on which we have today accepted an Amendment to bring before this very Tribunal. There seems to be no argument that can be founded on the practice that exists at the moment to justify refusing this right of appeal to this admirable body constituted for the purpose. The fact is that the Central Land Board and the district valuers, who, in fact, do the work, are tied hand and foot by extremely vague regulations which are precise only in one particular, namely, that they must extort in every case the full difference between the value of the land with permission and without permission to change its use. I repeat that I think that it is quite idle to argue that these charges are determined or even affected by planning considerations, or that they are not a fit subject for submission to this tribunal. 4.15 p.m. I would, therefore, say that in fact the way the thing has worked, and what we seek to remedy by urging the House to accept this Amendment, is that the whole scheme of development charges has become degraded into a mere haggle between two parties. On the one hand, we have been told by Government spokesmen that the Central Land Board, which is, in fact, the district valuer, has something to sell, and they proceed to sell it for the best price they can; we have the Central Land Board as the Duke of Omnium with complete monopoly. On the other side of the haggle, we have the bewildered and disjointed army of would-be developers. The whole thing seems to savour more of the Eastern bazaar than a system of taxation under Western democracy. The seller always asks more than he thinks he will get. If the buyer pays up without demur the more fool he. If the buyer makes a protest against the price it depends entirely on how much trouble he makes as to how far the price will be abated. The case has been cited of the Union Club who were ejected from Carlton House Terrace because their premises were required by a Government Department. They found alternative premises in two houses in Grosvenor Square, Nos. 33 and 34. No planning consideration was involved because there was no question of the appearance of the houses in the Square being altered. It was merely that instead of two houses being separately occupied, they were to be occupied by a private and residential club. The Square looked just the same whether the houses were occupied by a club or by two householders, yet the development charge was £60,000. Agents for the club went to the Central Land Board and argued the matter, and almost at once, so I am told the £60,000 was reduced to £35,000. That is to say, £25,000 was knocked off the original payment. Here the same body—the Central Land Board make the determination of the development charge in respect of the same change in identical premises and there is £25,000 difference between the two figures. My argument is briefly this: Both these determinations cannot possibly be right. Who can be confident that either of the determinations is right? How can it be argued that there should not be a right of appeal to an independent tribunal in such a case? As I see it, there are three sources of injustice in the present system of leaving it to the haggle between the Central Land Board and the would-be developer without a right of appeal—sources of injustice which I say, the right of appeal to this independent highly-skilled body would do a great deal to mitigate. I have mentioned the first of these sources of injustices already, namely, that the Central Land Board is a monopoly. One cannot have a fair haggle with a monopoly which in fact dictates the price. There must be a competition between sellers before the buyer has a chance in a haggle. This Lords Amendment would, if accepted, at least give people aggrieved by the price charged by the monopoly, the right of appeal. The second source of injustice is that the developer has to some extent always committed himself before applying for the development charge to be determined. He has spent money, it may be in buying in the land; he has gone to a lot of trouble in obtaining planning permission, bye-law permission, and licences to build. When he is faced with a demand for a development charge he has either to submit to the charge or to lose the fruits of his- past expense and his labour. The other party to the so-called haggle, the Central Land Board, is in no such case; it can sit back and let things take their course, a very different position from that of the other party to the haggle. For example, on a man who is anxious to build a house for his family, time presses with an urgent insistence; every day that passes without his getting nearer to his objective is a day of frustration. As between the Central Land Board and the developer it is a question of "Your money or your time," and in such an urgent matter as the provision of a home for a family, time is almost as important, or seems as important, as life itself. The third source of injustice in having these charges determined without any right of appeal arises out of the facts I have already stated. It is true that the Union Club can deploy against the Central Land Board an imposing force of skilled advisers. I do not know what it cost the club by way of professional fees, but certainly not as much as the £25,000 by which the development charge was reduced. But the small man has not got those resources; the ex-soldier who is trying to build himself a house with his gratuity and the small shopkeeper who desires to improve his premises, cannot be expected to be so pugnacious; the demand for a development charge comes to him in a letter written on official paper, curtly phrased in the language which it is customary for His Majesty's servants to adopt when addressing His Majesty's subjects. That man finds that he has no right of appeal; he is up against the Government. In these circumstances what can a man do but suffer in silence, with perhaps what Shakespeare calls:"There are no provisions whereby Mr. Crook can be granted exemption from payment, even though the post office authorities consider the development desirable."
When I hear of cases where on protest development charges have been reduced or waived I am worried to think of the many cases where small men have suffered, it may be, wrong assessments, and no one has heard about them."curses not loud, but deep."
Oh, yes, they have.
Not all. We may hear of some; but when we hear of some we know that there are many about which we never hear. The figures are indeed small in comparison with those I have quoted about the Union Club, but they are sometimes very large compared with the resources of the man affected.
Acceptance of this Lords Amendment would, in my judgment, have the following beneficial results on what is rapidly becoming a deplorable situation. The institution of a central appeal body would remove the sense of unfairness arising from the arbitrary determination of these matters by a body which is judge in its own case. In the second place, it would tend to make much more uniform the wide variation in the assessment of these charges in different parts of the country. At present these variations are so wide that they give the whole process a capricious look which tends to bring it into disrespect. The learned Attorney-General put before us the argument that there would need to be a code developed. What better way of developing a code is there than to have a series of appeals to a central body? In the matter of rating appeals we thoroughly agree with the wise course the Government took in letting them come to this body, because it is desirable to have a code which is applicable over the whole country. If we adopted this course it would result, in time, long or short— and with assistance a short time—in a code of a uniform and just character being developed. This has invariably been the result of setting up a central independent authority which can pass in review a number of cases brought before it. It has, after all, to work out a code for its own guidance, and in time that code becomes recognised and binding throughout the country on those who administer that branch of the law. Lastly, I think that the mere fact that a decision by a man called on to make a decision in a matter which can be reviewed by a superior body has a good effect upon the man making the decision. I make no charges against district valuers; they are a very worthy body of men; but they have too much to do, besides having this great load of assessing development charges thrust upon them. They would, I think, welcome the right of an appeal in the open against their decisions. There can be no doubt that this Tribunal is the right body for this purpose. It was not in existence when we argued this matter at the earlier stages, but now that it has been composed of men specially qualified to deal with precisely this sort of valuation matter, now that practice has disclosed that the development charge is determined without any regard to policy or public interest but simply on the basis of valuation, there can be no real argument for not accepting this suggestion and letting this specially constituted body act as an appeal tribunal against assessments of development charges. I really do not understand why the Government do not accept this Lords Amendment. I do not see what they would lose by accepting it. It would go a very long way towards removing a widespread complaint and a sense of injustice and uncertainty which is hampering all development at the present time, including the provision of houses. I regret that these development charges have got into such ill-repute with the public, and that they are invariably associated with the statute out of which they spring, the Town and Country Planning Act, because I have the uneasy feeling that the resentment which is felt against the method of assessment and enforcement today reacts against the whole case of planning and makes people think that all town and country planning is nonsense, and consequently produces in them an unco-operative attitude towards it. I am sure that if this Lords Amendment were accepted, if the public could be assured that it is the desire of the Government and of all who are interested in town and country planning to make the justice of the procedure abundantly and manifestly clear, it would be a very great service, not only in the narrow field we are now discussing but to the cause of town and country planning itself.4.30 p.m.
The question of giving the Lands Tribunal jurisdiction to hear appeals arising out of the assessment of a development charge is extremely important. Under Section 70 of the Town and Country Planning Act, the Central Land Board has to have regard to the amount by which the value of the land with the benefit of planning permission, exceeds the value of the land without the benefit of planning permission. The wording of that section suggested to a great many people that there would be a considerable degree of discretion left to the Central Land Board in the determination of the development charge. I take the view that the more judicial discretion is left to the Central Land Board in the assessment of the development charge the more reason there is for thinking that appeal from the Board should be possible.
The effect of the regulations, however, subsequent to the passing of the Act, is to reduce the element of discretion and to that extent to reduce the need for appeal—I do not say "eliminate it," because I think there is a strong argument for appeal. I do say, however, that the effect of the regulations is to reduce the strength of the argument. The right hon. Member for Cirencester and Tewkesbury (Mr. W. S. Morrison) mentioned that at one time in the development of town and country planning policy, it might have been expected that considerations of planning policy would play a part in the determination of the development charge by the Central Land Board. On my understanding of the matter, the regulations which govern the assessment of the development charge positively exclude consideration of all questions of planning policy, and lay down that, as a general rule, the charge should be equal to the increment in value added by the grant of planning permission. The consequence of the regulations, therefore, is that this matter of the assessment of development charge becomes much less a matter of judicial discretion and much more a matter of strict valuation. Decisions are becoming less appropriate for reference to a quasi-judicial body like the Lands Tribunal.Would not exactly the same considerations apply in respect of compensation for the compulsory acquisition of land?
I feel that rather different considerations would apply. The whole basis of my argument is that the wider the discretion of the Central Land Board, the more ground there is for an appeal to a quasi-judicial tribunal. In what was originally contemplated under the Act as considerations that were to play a part in effecting the assessment of development charge, there were wider considerations of discretion, like questions of planning policy, to be taken into account than would be taken into account in questions affecting the determination of value in the case of compulsory acquisition. According to my understanding of the matter, on a reading of the statute, the original intention was that the very widest discretion should be exercised, and that a very large number of facts should be taken into account in determining the development charge—a greater number than would be taken into account in determining the appropriate figure for compensation for compulsory purchase.
But is it not exactly the opposite to what the hon. Gentleman has just said? If, in the original arrangement under the statute, it was intended that a large number of administrative considerations should be taken into account, that planning considerations should apply, then in that case it would not be appropriate perhaps if there was an appeal to a judicial tribunal. Under Statutory Instrument No. 1189, however, there is to be a precisely determinable assessment being 100 per cent. of the increase in the value. Surely that is a case where there ought to be an appeal to a quasi-judicial tribunal.
It is a question for the House, and I agree that the point of view expressed by the hon. Member may be arguable; but the conclusion I have arrived at, without any doubt, is that the fewer the number of facts which are to be taken into account, the less the degree of discretion which is to be exercised by the Central Land Board in consideration of these various factors, the less important it is that there should be a right of appeal. I can understand another view being taken, but that is my view. As the matter becomes more one of strict valuation, it becomes less appropriate that there should be a right of appeal to a quasi-judicial body.
It is true that the charge may be less under the regulations than the value of planning permission, if that is necessary to ensure that the land passes into the open market at the existing use value. That is a qualification which exists in the regulations. If it were not for that, then the development charge would be simply the value of the planning permission. The consideration of that qualification invites the exercise of certain discretion, but it is extremely vague and on this particular aspect of the matter I should have thought that there was no answer to the proposition put forward by the Attorney-General—that it is quite hopeless to expect a quasi-judicial body like the Lands Tribunal to determine the development charge without having an express and precise code on which to base its decisions. It is all very well to suggest that a code may be built up in practice as decisions are made and as time passes, but in my view the first assessments by the Lands Tribunal would be made on such vague grounds that it would take an extremely long time for any satisfactory code to be arrived at and then very unsatisfactory results would ensue, in practice, in regard to the first appeals to the Tribunal.Amend the regulations.
The regulations have done two things: first, they have reduced the scope of the discretion in the assessment of the development charge and have to that extent made the Central Land Board's decisions less appropriate for review by a body like the Lands Tribunal; second, where they have left discretion, they have left it so vague that I doubt whether it would be reasonable to expect a judicial body to deal with it in the absence of a precise code. Although for these reasons I would not support the Lords Amendment, I think it right to express on this side of the House some of the anxiety which is undoubtedly felt in all parts at the extremely arbitary powers which exist in the Central Land Board for the determination of the development charge. I think that is felt by everybody, and I have no doubt that the Land Board itself is extremely conscious of it.
I hope it may be possible for the Government to agree—I mentioned this in the course of the Second Reading Debate—under Clause 4, which deals with the power to add to the jurisdiction of the Lands Tribunal, to adopt a form of words by which, as time passes and as this great experiment develops, it will be possible to extend the jurisdiction of the Lands Tribunal to deal with the assessment of development charge in certain cases. I should like to have an assurance from the Government that they will, at least, explore the possibility of doing that. I am suggesting something quite different from an appeal, because what Clause 4 contemplates is Orders in Council, which will have the effect of giving jurisdiction in certain matters to the Lands Tribunal instead of to other bodies at present possessing jurisdiction. In other words, it is a transfer of jurisdiction on the question of appeal. I will only add that, for the reasons I have given and the considerations to which I have referred, I give my full support to the Government in recommending the House to disagree with the Lords Amendment.I have seen this afternoon what many of us have seen over the years, that is, a case coming to a certain point in the hands of solicitors and perhaps of junior counsel, and then, when it comes to the great man himself, the leader, one learns that all the argumentative merits which one had so keenly studied will not do. The leader says, "I cannot hope to run that case that way. This is the winning argument; this is the only argument we can make." The noble Lord who spoke for the Government in another place embarked on an argument on the merits of the Amendment and said that it would not do because of this or that. No doubt he had to do that because he had to convince the tribunal before which he was then appearing.
But the Attorney-General knows better than to venture to discuss the merits. Indeed, he admits there is something in the Amendment, but he takes the perfectly safe line that it will not do in a procedure Bill, and that it will be very awkward in future on procedure Bills if we insist on discussing on them what a noble Lord discussed in another place—the merits of the matter. Quite frankly, I am not impressed. There may be certain inconveniences if we muddle up the law with procedure Bills. The essential thing, however, is that we are not here as a High Court or anything of that kind, but as a legislative body trying to do the best we can for the country and to make Acts of Parliament work. If between 1947 and now, difficulties have appeared in the statute, our duty is to put them right, and this is our chance to do so. There undoubtedly has been some real difficulty about the position of the Land Board. Is it a judicial or quasi-judicial body? May it have regard to town planning considerations, and thereby let some man off with a charge lighter mathematically than he ought to pay, or is it a mere valuing body? Again, is it only a haggling body? The evidence is that that is what it is becoming. The development value of land has been taken away by statute from the individual owners and is now vested in one great landowner, namely, the State. If I desire to develop my land, I go along to the landlord to buy the development rights for that patch of land. I have no real bargaining power, there is no competition; and if I do not like what the landlord says, all I can do is to refrain from development. It may be, of course, that I have bought my land, and I have been imprudent enough to go ahead with the development. In that case, I may have to pay and lose money over it. But as people become educated, such cases will become more rare, People will not develop. 4.45 p.m. Any pretence that the Board are acting judicially cannot be maintained in the face of the Union Club case or other cases which came before another place and which showed very wide disparities. I am not blaming the Central Land Board. It may be their duty to get the best bargain for the taxpayer and build up the fund as soon as possible, but if a man holds the Government up to ransom when they want land, he is very properly brought to book and made to sell at a proper figure. If the Government hold up land to secure a higher price when the taxpayers wants to use it for a proper purpose, then I should use words once used by an eminent statesman in the Gorringe case, and say that that is not business but blackmail. It is far more potent than the blackmail of the Duke of Leinster or the Marquis of Bute—I forget which. For the State to use blackmail, backed up by the whole power of the State, is wrong. This matter should go to an impartial tribunal for a proper assessment. I was much impressed by the suggestions made from the Government side, particularly by one hon. Member who referred to the merits. He did it with such moderation and such submission to the Government point of view on this particular matter that I do not think the most censorious could accuse him of mutiny and have him castigated. He was well within the limits which may be allowed even within a properly-disciplined party. It may be that there will have to be new regulations, or it may be that a practice can be built up very rapidly by a series of law decisions. I am not at all certain that it is not the best way to do it, for sometimes the longest way round is the shortest way home in these matters. The final point I wish to make is that this is a measure of simple justice. The only arguments put against the Amendment are purely legalistic ones which we ought not to contemplate. For my part I refuse to accept a legalism instead of doing what is a common justice.I regret that the Attorney-General in his speech confined himself so entirely to the purely technical aspect of this matter. I see the Parliamentary Secretary to the Ministry of Town and Country Planning is here. I was surprised to find the Lord Chancellor saying that he had received no complaints with regard to the development charge made by the Central Land Board. Perhaps the reason for that is that the more appropriate Member of the Government to whom these complaints might be brought would be the Minister of Town and Country Planning.
I gladly re-echo what the Lord Chancellor said. The amount of complaint that we have received about the development charge is negligible.
I can only say that I am astonished. Certainly, as I go about the country making political speeches, that is one of the many points on which I have been asked questions. People want to know what the attitude of the Opposition would be and whether we would continue to operate this Measure. Not once, but several times, I have had complaints about the way in which the development charge is preventing people from building houses or doing anything in the way of developing their houses or building garages.
It did appear as though this was an opportunity of reviewing the way that part of the Act of 1947 is actually operating. It was said by the Attorney-General that this matter had been discussed several times as the Bill was passing through its various stages, but at that time we were discussing only what we thought would be the consequences of the different Clauses of the Measure. That Measure has now been upon the Statute Book for a considerable time and we are now able to point to cases where the Central Land Board has sought to assess development charges that in many cases have been found to be so high that the would-be developer has refused to develop. As a result of that, the Central Land Board has reduced the charge which it proposed to make. I am sure that we all listened with interest and attention to the speech of the hon. Member for Edge Hill (Mr. Irvine). The fact that he warned the Government that there was widespread concern throughout the country may induce the Parliamentary Secretary to make further inquiries about the matter. I speak not as one who has been hostile to the principles of that Measure. I am anxious that it shall work in a satisfactory way. I did warn the Government at the time when Statutory Instrument No. 1189 was being discussed that I was afraid that making the development charge 100 per cent. of the increment in value would be to discourage development throughout the country. I believe that is what has happened. I find myself in complete disagreement with the hon. Member for Edge Hill when he says that he thinks there is now less ground for an appeal to a quasi-judicial authority than there was at an earlier stage when it appeared as though a greater measure of discretion would be left to the Central Land Board. When a board has been set up which is to consist of expert and experienced administrators and where the board is told to take a large number of practical considerations into account, it is manifestly more difficult to go to a tribunal and ask the tribunal to overrule the Central Land Board on the ground that its decision was wrong because that decision was arrived at after taking a number of imponderable factors into account. The effect of Statutory Instrument 1189 was to provide that the maximum and minimum charge, except in special cases to which the Attorney-General referred, is the actual increment in the land value, due to the development permission being granted. That is a determinable figure, although it is not easily determined. At any rate it is a figure that can be determined according to the learning of the profession of valuers. I took down the words which the Attorney-General used in commending the first of the Lords Amendments. He spoke about this new Tribunal which is being set up as specializing in these difficult and technical matters of valuation.I think I said rating valuation. I certainly was speaking in that context. I should like to make it clear that that was what I meant. There are few branches of the law more complicated than the law of rating, as the hon. Gentleman knows.
That is certainly true. I do not press the point now that the Attorney-General has given the explanation. I agree that there are few branches more difficult and technical than that dealing with rating. I will offer one suggestion as to what branch is more difficult and technical and that is to assess what is the increased value of land after planning permission is given.
There is no law on the subject.
Well, that may be so, and I will take the Attorney-General's point. In that case, how entirely unsatisfactory it must be for the subject when there are no precisely determinable principles that can be laid down, that the matter should be left entirely to the discretion of the Central Land Board. I understand that very little direction has been given by the Central Land Board to the district valuers who are required to arrive at those determinations. Writing to a firm of valuers in order to obtain some information about the actual practice of the Land Board in this respect, I found that that firm were entirely satisfied with the attitude of the district valuers. They went on to say:
"They have had no directions at all as to how the amount of the charge shall be arrived at and are quite prepared to listen to any suggestions."
Who said that?
That was from a firm of valuers to whom I wrote when I was asking for information upon this subject. What could be more unsatisfactory than that the subject should be completely at the mercy of the unguided district valuers, acting on behalf of the Central Land Board which has a compete monopoly of land development in the country? As my right hon. Friend has emphasised, there may be some large and wealthy concerns like the Union Club which are in a position to put up a fight and to insist that there shall be a reduction. It is the duty of this House to have regard to the interests of the small man who may have bought a piece of land with the intention of building a house there. Suddenly he finds that he is obliged to pay a very large additional sum of money.
There was just such a case in Bury St. Edmunds. Mr. James Leggett had purchased a bit of land 23½ feet by 160 feet, for £200 and was about to build upon it his future home. The authorities cited the provisions of the Town and Country Planning Act, by virtue of which the existing use value of his plot was only £6, and told him that he should not have paid £200 but only £6. On the principle presumably of caveat emptor, they proceeded to make a development charge of £194 for permission to build his future house upon the plot of land which he had bought for that purpose. That is a case in point, and I am willing to give the Government full particulars of it. 5.0 p.m. I do not wish to take up too much time, but these cases are so important and widespread that I venture to give another example. This was in Tunbridge Wells where two lots of accommodation land were put up for sale. The first, of approximately two acres, let at £4 per annum with an existing use value of £120. The second was five acres, let at £5, with an existing use value of about £150. Although the auctioneer had forewarned the bidders that the Act attacked the sale price of such land and that they must beware of liability for development charge, those two plots of land were sold for £400 and £1,300, respectively. What was of great interest was that the local authority were under-bidders at £1,200. One cannot get away from the serious consequences which are arising all over the country merely by saying, as the Attorney-General has done, that this is only a machinery Measure. If it is the case that a new and expert tribunal is being set up for the purpose of dealing with these difficult matters of the valuation of land, then surely this is a good opportunity for giving a similar right of appeal in the case of development charge to the same tribunal.Would the hon. Member allow me to interrupt? These cases are interesting. What does he suggest an appeal tribunal should do in such cases where apparently the purchases were made after the passing of the Town and Country Planning Act?
The point I am making is that in the case of these development charges the Central Land Board apparently does not even claim that this is a precise calculation of the increase in the value of the land which is due to the planning permission being granted. In fact, what they are trying to do—and they regard it as being their duty to do so—is to obtain the highest price they can for the development rights in the land. I am saying that this is having a serious consequence. It is resulting in great injustice to many individuals, especially to the smaller men who are not able to afford professional fees, that the Central Land Board is not issuing directions to the district valuers and that there is, therefore, great need for a tribunal to which an appeal can be made to secure uniformity.
Finally, we were given an interesting piece of information by the Chancellor of the Exchequer in this House on 27th January with regard to the reliability of the estimates of the district valuers. The right hon. and learned Gentleman said that out of 1,380 cases the district valuer's precise figure was upheld in only 50 cases. If that is what the Chancellor of the Exchequer informs the House of Commons, then there is surely a strong case for a central tribunal to which an appeal can be made from the decisions of the district valuers.Perhaps the most significant thing about the proceedings this afternoon is that the opposition to the Amendment from another place has so far been defended only by two hon. Members—by the right hon. and learned Gentleman the Attorney-General and the hon. Member for Edge Hill (Mr. Irvine). It is also significant that neither of those two speeches contained anything like a robust defence of the principle with which they were associated. The Attorney-General, in the main, confined his argument to the inadvisability, if not the impropriety of trying to alter the Town and Country Planning Act by a procedural Bill such as the Lands Tribunal Bill. So far as the merits were concerned, he had not a great deal to say, and conspicuously less than his noble Friend the Lord Chancellor in another place.
So far as the hon. Member for Edge Hill was concerned, I think the House will agree that the most convincing parts of his speech were those in which he conceded the disquiet felt at the absence of an appeal and the necessity of doing something to meet that disquiet. Indeed, I formed the impression not only that that was the most convincing part of his speech, objectively speaking, so far as the House was concerned, but that that was the part of his speech of which he felt the most convinced. Indeed, he ended by recommending not an appeal but something which I should have thought was even a bolder step, the transference of the jurisdiction to fix development charges from the Central Land Board to the Lands Tribunal. I think the hon. Member will appreciate that that would not be possible under Clause 4 of the Bill because the Central Land Board is not a statutory tribunal. However, the spirit of his suggestion clearly indicated that, in his view, radical measures were required to meet the unsatisfactory situation existing at present. Those being the only two defences put up so far in this House, it is clear that some onus rests upon the Government to show that an appeal from the decision of the Central Land Board is not a necessary, desirable and practicable thing. I thought the Attorney-General treated the proceedings of another place in a somewhat cavalier and contemptuous manner. I myself would hesitate long before dismissing the view with which three former Lord Chancellors associated themselves as being erroneous, and taken under a misapprehension of law.It is unfortunate that I am not permitted by the Rules of Order to quote the speech of the noble Lord. In the main I was referring to the speech of the acting Leader of the Opposition in the House of Lords in commending to the noble Lords the Amendment he was proposing. My hon. Friend will find it in the last paragraph of column 362 of the Report. If, after reading that paragraph, he thinks I have done the noble Lord any injustice, he will no doubt say so, but I am quite confident that he will find that I put the matter in the most euphemistic way that it could be put.
Of course the right hon. and learned Gentleman does not there refer to the speech in which this Amendment was moved. There is the authority of the three former Lord Chancellors that this Amendment would be a beneficial addition to the Statute Book. I am sure he will agree with me that such authorities should not be lightly brushed aside.
I do not contest that they took the view, on the merits, that it would be a good thing to have an appeal. What I said was that they proceeded under a complete misapprehension, in that, if I may paraphrase their argument, they suggested that we were altering the whole structure of the Town and Country Planning Act by bringing in a new right of appeal under Section 60, and that as we were doing that under Section 60, it was appropriate to do it under Section 70 as well.
I am much obliged to the right hon. and learned Gentleman. I do not want to become unduly involved in this. I had not understood from the opening speech that the noble Lord in question was under that misapprehension. I am sure the Attorney-General will agree with me that that would be extremely unlikely in his case. The position surely is this: if it is right that this appeal should be incorporated into the Town and Country Planning Act the procedural answer is not, in my submission, a convincing answer against so doing. Of course, if the effect of this Bill was—which it is not—to create a right of appeal under Section 60, the argument from these benches would be by that much stronger, but, of course, it is not necessary, in order to substantiate the point which we on these benches wish to put forward, that that should have been the case.
The point is surely, as my right hon. Friend said this afternoon, that if the Section 60 and Section 70 cases are reasonably close, the fact that there is and always has been an appeal in the Section 60 cases makes it logical and desirable that there should be an appeal in the Section 70 cases. The fact that this tribunal is now to come into existence makes it the obvious tribunal equipped to hear such cases. I do not think that the argument on that score goes further than that. The main question as to the merits, whether or not there should be an appeal from the determination of development charge, goes right to the root of the question as to the way in which these development charges are to be collected and for what purpose. The issue is really this: is the collection of development charge to be in all respects governed by the procedure best calculated to ensure the social purpose of a development charge—that is, that betterment by way of development value accrues to the State—or is it to be governed by unregulated bargaining between the parties on a sort of catch-as-catch-can basis? If it is to be the former, it can only be satisfactorily done if the appeal procedure is given. The absence of an appeal has never really been argued on its merits except on the basis that the collection of development charge should be on the commercial basis, or what has been called this afternoon the haggling basis. That was made quite clear by the Minister of Town and Country Planning when this Measure was originally discussed, and that point of view has again been put more recently in another place. It is quite true that the Attorney-General refrained from putting it this afternoon, but he refrained, I think, only because he preferred not to deal specifically with the merits. 5.15 p.m. I am sure that this House will agree that the commercial approach is not the right approach to the collection of development charges. As has been pointed out, if that is the right basis the collection of development charge simply becomes a contest between the Central Land Board and the would-be developer. It becomes a contest between monopoly on the one side and the intending developer on the other, the only weapon of the intending developer being that he can jettison his development if he does not care to accept the development charge. That is not a satisfactory situation. It is obviously an inequitable situation so far as the intending developer is concerned, because any commercial bargain in which one side has monopoly rights is obviously inequitable for the other side. Quite apart from that, in my view it is undesirable from the point of view of the community as a whole; I think hon. Members will appreciate that the sort of development which would not be persevered with under such conditions may in many cases be the development that is socially most desirable, because the development which is socially most desirable is not necessarily the development that is economically most profitable. It is in that sort of development that the additional amount on the development charge is most likely to act as an absolute deterrent. If hon. Members really want to see development charges as an instrument of social progress, I think they must agree that the commercial or haggling method is wholly undesirable. If the development charge is to serve a social purpose there must be a just assessment of it in accordance with principles of law. The only recognised method of resolving disputes between parties within the framework of the law is an appeal either to the judiciary or to a quasi-judicial tribunal. I suggested to the hon. Member for Edge Hill that there is in fact, a close parallel between this and the question of compensation in respect of compulsory acquisition of land. I believe the parallel to be very close indeed. In the case of the compulsory acquisition of land the State or the acquiring authority, whatever it may be, acquires the land and then, if the parties cannot agree on the compensation, it is referred to arbitration. Indeed it will in future be referred to the arbitration of this Tribunal. So far as the development charges are concerned, if reference is made to the Practice Notes issued by the Central Land Board—and I am a little surprised that they have not been cited before in the course of this Debate—it will be seen at the bottom of page 12:That is precisely the formula which has been applied over a number of years in respect of compensation for compulsory acquisition of land. The market value from the point of view of the willing seller is the formula in the Acquisition of Land (Assessment of Compensation) Act 1919. It is on that formula that it has been found necessary to have arbitrations for 30 years. It is on that formula that the Land Tribunal will consider arbitrations in the future. Therefore, I suggest that the parallel is very close indeed, and that the parallel is supported by the Practice Notes of the Central Land Board themselves. The Attorney-General sought to differentiate between the position under Part VI of the Act, which relates to the claims upon the central fund, and the position under Part VII of the Act which relates to the assessment of development charge. He sought to distinguish the position so as to justify the existence of an appeal in the case of the Part VI valuations, and the denial of appeal in the case of the assessment of development charge. I submit, with great respect to the right hon. and learned Gentleman, that the distinction which he sought to draw is not well founded. He spoke of the code in regard to the Part VI valuations. I do not know precisely what he had in mind in regard to a code, because there is, of course, only a statement of principles on which such valuations are to be made, as there is a statement of principles in regard to valuations in respect of determination of development charges. The development charge, as the House is aware, is arrived at by subtracting the refusal value from the consent value. It is of course true that the refusal value under Part VII is not defined in the same words as the restricted value under Part VI. Nevertheless, these are nice distinctions which it, my submission can be pushed a good deal too far, and have been pushed a good deal too far by implication by the right hon. and learned Gentleman today. I need hardly say that I do not rely wholly on my own authority. Once again I refer the right hon. and learned Gentleman to the Practice Notes of the Central Land Board. At paragraph 52, the Central Land Board say this:"A sale will be assumed. Value will take the form of a 'market value' and both the seller and the purchaser will be assumed to be 'willing.'"
That is what they say—a common basis of valuation as between Parts VI and VII; whereas the whole of the right hon. and learned Gentleman's case is based on a distinction between these two forms of valuation. They go on:"The Board are, however, responsible in the first instance for determining Restricted Values for the purposes of claims on the £300 million, and feel that there is much to be said in favour of attaining as far as possible a common basis of valuation for Restricted Values for claims for loss of development value (Part VI) and for Refusal Values development charge (Part VII)."
When the Central Land Board go on to refer to the consent value, it is of course quite right to say that they point out that there is no definition of the phrase "with the benefit of planning permission" in this Act or in any other. Having said that, they go on to say:"They are directed in Statutory Instrument 1189 to adopt 'normal processes of valuation,' and they propose therefore to adopt for Refusal Value of development charges the same main formula as is provided for Restricted Values for claims under Part VI."
Having said that, they go on to define the five matters which are the basis of calculation in regard to a consent value. The right hon. and learned Gentleman says that there is no code under Part VII whereas there is an elaborate code under Part VI, which is not a distinction that can properly be maintained in practice. The Central Land Board emphasise in their Practice Notes that regard must be had to "processes of valuation." I too stress it is in the plural. That fact of itself is, of course, a very weighty consideration in regard to the question of the necessity of an appeal from a decision of the Central Land Board. There is no one process of valuation; there is no exact science of valuation at all. No surveyor or expert valuer would pretend for one moment that there is. Valuation is perhaps more of an art than a science. It is based to some extent on hypotheses, and the normal method of valuations is to check one form of valuation in respect of the same property by applying other sorts of valuations. The only effective method in my experience, and I am sure it is the experience of other parties interested in these matters, to arrive at an appropriate valuation, if there is a difference between parties, is that the valuations are both put in evidence and that cross-examination and so on are allowed in regard to them. That is the normal method which has worked very well over a large number of years and is considered indispensable in other analogous matters. It is quite incomprehensible why that method should not be the correct method to apply in the interest of the parties in regard to determination of development charges. I think that the case for an appeal from development charges is very well made out on its merits. It may be there is considerable force in the contention of the right hon. and learned Gentleman that this is not the best way in which to introduce a major addition to the Town and Country Planning Act. That is as it may be, and I concede that no doubt he is correct in that. But he must, I think, concede that the Town and Country Planning Act was formulated as it was because there was then a different contemplation of what was to be the process of determination of development charges. I agree with my hon. Friend the Member for The High Peak (Mr. Molson) in differing from the hon. Member for Edge Hill (Mr. Irvine) in his suggestion that the fact that planning considerations may not now be taken into account is a reason for not having an appeal. On the contrary, as my hon. Friend the Member for The High Peak has pointed out, the fact that this is now simply a question of valuation within the framework of the law makes it exactly analogous to other cases in which appeals for arbitration can be heard. Since matters of policy and administration are mixed up, it is much more difficult for a judicial or quasi-judicial tribunal to consider a matter of appeal. We are entitled to assume that it may well have been for that reason that the House did not think it necessary to insert the provision for appeal when the Measure originally went through. It was only when the whole process of determination of development charges was changed by the publication of the Development Charge Regulations—when the Government had second thoughts and altered the principle—that the case for appeal to a quasi-judicial tribunal became cast-iron. Although this may not be the best method of introducing it, it is a justifiable method in view of the complete change of front brought about by these second thoughts on the part of the Government. Finally, may I echo what has been said before on both sides? There is dissatisfaction in some individual cases in regard to the way in which determination of development charges works, and in particular there is dissatisfaction about the absence of a right of appeal. The absence of right of appeal is never popular in this country. In any democratic community it is necessary that institutions be operated on a basis of goodwill, and in a British democracy it is particularly necessary that they be worked with the knowledge that there is fair play for all. People have not at present got that impression in regard to development charges because of the absence of a right of appeal. The administration development charges, and with it the public attitude towards the business of town and country planning, can be sensibly improved by the provision of the right of appeal. From it will come increased confidence on the part of the public as a whole that this matter is being operated on traditional principles of equity and fair play."Parliament has instructed the Board to determine the additional value measured by normal processes of valuation of the land due to planning permission for a particular development. The word is 'processes' in the plural."
5.30 p.m.
I hope that the Government will not accept the Lords Amendment. To follow for a moment what has been said by the hon. Member for Hertford (Mr. Walker-Smith), I am rather surprised to hear him state that socially desirable development may not be the most profitable.
It may not always be.
Yes, it may not always be. I thought that it was one of the cardinal doctrines of the Tory Party that the most profitable development was always the most socially desirable. I am also very surprised to see that they are shying away from the doctrine of haggling in the market. I thought that was another cardinal principle in which the Tory Party believed.
The hon. Member for The High Peak (Mr. Molson) gave one or two cases of hardship, one at an auction and one at a private sale of land. What he meant to say was that, through the stupidity of the people who bought the land, a private owner had already collected the development charge which should have gone to the landlord. No form of tribunal would have saved those people in that case. Therefore, the solution which we are asked to apply to these hard cases would be no solution at all. Unfortunately for those poor people, the money has gone and under this Act they will have to pay the development charge if they want to develop. If the Central Land Board or a tribunal of any kind were to forgo that development, they would be making the Act, so far as we are concerned, entirely useless. There is no discretion on the part of district valuers if the regulation is properly carried out. It is their duty to collect the full difference between the present use value and the market value. The difficulty they are in now is that there is no comprehensive valuation of the whole country by which they can compare and judge valuations. They are doing it higgledy-piggledy, applying their minds to a little piece of land here and a little piece of land there, without having any means of making a proper comparison. There is not much hardship yet, at any rate—I cannot resist mentioning this; I am sorry to see that no representative of the Ministry of Town and Country Planning is here—because the great Act which was going to collect £300 million in five years has at the moment, collected less than £750,000. Therefore, there cannot be very much hardship in the collection of development charge. [An HON. MEMBER: "There is not much development either."] That may be so, but not much hardship is being imposed on the people who are supposed to pay these heavy charges. I know the case of certain people who had the development charge levied against them by the Central Land Board; they actually handed the licences back to the city council because they could not afford to go on with the development. That is a hardship, but it is not the type of hardship about which we have heard this afternoon, except from the right hon. and learned Gentleman himself. If there is to be a tribunal in connection with these cases, I suggest that this is not the proper tribunal. This is a form of special taxation, and the appeal ought to be to the Inland Revenue Commissioners if one wants an appeal of any kind. The truth of the matter is that the Government are resisting the Amendment simply because as the law now stands on development charge, compensation and betterment, they would get so many appeals that a scheme would break down altogether. The real trouble with the sections in the principal Act is that the Government should never have embarked upon this scheme until they really had a complete and comprehensive valuation of all the land in the country. If they had done that first, this scheme might have worked. I am one of those who believe that if they had done that and if the people of the country had understood the real market value of the land, they would have gone in, not for this method of dealing with the land question, but for the method of collecting these social values for the community either by way of rates or taxation.The speech of the hon. Member for Penistone (Mr. McGhee) interested me. It seemed to have a very nice old-fashioned ring about it. It reminded me immensely of the speeches made round about 1910. I shall not now follow his argument any further, although I might make a slight reference to it in a few minutes.
I listened to the speech of the Attorney-General, as I always listen to him, with very great interest. There was actually one part of that speech with which I agreed and there was one part of it in which he was accurate. There is no doubt that there is one weakness about this Amendment, and that is that the new Clause ought to have been fully and properly applied to Scotland. The Attorney-General convinced me of that entirely. The Attorney-General also said certain things about the inclusion of the Clause in another place. He said that apparently in another place there was complete misapprehension as to what this really meant. With great respect to the right hon. and learned Gentleman and without in any way depreciating his knowledge, I understand that there are in another place a number of very distinguished lawyers whom I was accustomed in the past to hear in the House of Commons. Also, I have been informed by a very large number of Ministers during the last four years that the other place has a perfectly marvellous capacity for improving things. When we take those two things together—first, that those in another place are very highly skilled and, second, that they include very highly skilled lawyers—I hardly think that there is very great strength in the argument of the Attorney-General, whose experience in making laws can only be quite small compared with that of many of the great lawyers in another place. The House would be extremely ill-advised to turn down an Amendment simply on the grounds that the other place did not fully understand the Clause. I hope that in saying those things I have not in any way depreciated the position of the right hon. and learned Gentleman. I have, at any rate, done him one good turn by showing that Scotland certainly should not have been omitted, and I hope that Scotsmen will take note of that. I should like to refer now to the very interesting speech of my hon. Friend the Member for The High Peak (Mr. Molson). I have had a considerable number of cases—I do not say in writing—about people who have, or might have had to pay development charges. I say "might have" because in one or two cases eventually they have not had to do so. I am not quoting that as a matter of hardship, for that is the law and people have to pay those charges; but there is at present a state of complete and utter muddle and con- fusion. There is a very great deal of ill-feeling on this matter, and the main reason why the new Clause must be supported is that the whole feeling in the country is that the Tribunal is an arbitrary body and that in ordinary common justice there should be some method of appeal. That provision should have been made throughout the principal Act and must be made here also. The reason why the Government, throughout the whole of the present Parliament, always resist any form of appeal does not require much explanation. It is clear that the present Ministry of Town and Country Planning are completely incapable of dealing with these matters; they have been overworked and have lost control almost entirely of the machine of town and country planning. Only the other day illustrations of this came before the House.That question surely does not arise out of this Amendment.
I will not pursue that illustration, Mr. Deputy-Speaker, simple though it may have been, of the delays which are occurring. I was merely instancing those delays as a reason why people should be given the right of an appeal in defence of their own property; and the fact that a Department is overworked makes that all the more necessary. I will not develop that illustration any further, however, because everyone is fully aware of it and knows who are the culprits. I did not intend in any way to transgress the Rules of Order by strengthening my submission that the right of appeal should be allowed.
A further reason in support of my contention—it will not, of course, appeal to the Government—is that under the present charges they have built up an absolute monopoly as far as the development of land is concerned. They have built up the largest and most complete monopoly ever known in this country. There are, of course, other monopolies, although none of them is owned by hon. Members on this side; but the Government have built up this monopoly and, as a result, have under their power all sorts of people and all kinds of development. By imposing this charge they are holding up development, as is shown not only by my own experience but in many other areas. The problem could easily be overcome by the provision of some sort of appeal. The same thing happened earlier—I am reminded of it by the speech of the hon. Member for Penistone (Mr. McGhee)—when the very people who introduced things of this kind had to repeal them.Not the same people.
5.45 p.m.
I have no doubt whatever that the Clause ought to be inserted. It may go against some of the principles of the earlier Act, but that does not really matter. That earlier Measure is so bad and hopeless that we should, at least, make it a little better.
I hope that the House will divide on the Amendment, because it is obvious that it is the deliberate intention of the Government—which explains their objections to the Amendment—to fight at every turn the right of any kind of appeal. They are fighting and endeavouring to set up a monopoly. When they begin monopolies they at once begin Socialism, and the only thing that emerges is complete monopoly with no possible source of appeal. It is precisely that state which the Government, by their own Socialist theories, are bringing about.I agree with the view which must, I think, be held generally in the House that in dealing with this Amendment of the Lords we are dealing with a very difficult topic. I am a little hampered—as, indeed, was the right hon. and learned Attorney-General—by the Rules which prohibit our quoting what was said in the House of Lords on this matter. Since I am supporting the Lords Amendment that there should be an appeal from the Central Land Board, I should like to make clear at the outset what is, I believe, the view of all hon. Members who have spoken and of the House generally, that that does not imply any sort of attack on the Central Land Board or its distinguished Chairman, who, in my opinion, is performing a public duty with great ability. I want to make it quite clear that in supporting this right of appeal from them I am not in any way attacking the Central Land Board.
The speech of the Attorney-General was divided between matters of form and procedure on the one hand, and some allusion to objections of substance on the other. So far as procedure is concerned, I at once agree with him that this Amendment involves an amendment of the Town and Country Planning Act, 1947. The right hon. and learned Gentleman is perfectly right in that. If it were necessarily wrong in any Measure which dealt with procedure to introduce any substantive amendment of the law, then, of course, he would possess a good point. I do not think, however, that he would himself put it as high as that. If this Amendment is, in fact, an improvement in substance, the fact that it is made in what is, in the main, a procedural Bill is not, I think, a sufficient objection. On the question of substance, I am bound to say that I differ from the right hon. and learned Gentleman in his view that the House of Lords acted under any mistake of fact. In saying that I am not, of course in any way impugning the good faith of the Attorney-General in his description of the impression made upon him by the speeches in another place. Indeed, I agree that there are quotations, if we were allowed to make them, that would support him in thinking that one, at any rate, of their Lordships was under a slight misapprehension concerning Section 60. But I certainly believe that those who framed the Amendment we are now considering were acting under no mistake of fact whatsoever. That is borne out by the very different words in the new Clause we are now considering from the words in the Bill that deal with Section 60 of the 1947 Act. Those who framed the new Clause were quite clear on what had been done under Section 60 and on what they were doing in regard to Section 70. On the question of substance, it is interesting to note that the view of the Attorney-General was in direct conflict with the view of the hon. Member for Edge Hill (Mr. Irvine) who, paradoxically, at the end of his speech said he was supporting the Attorney-General. Anyone who watched the expression of the Attorney-General must have thought, as I did, that he was recollecting a celebrated line of Virgil:The argument of the Attorney-General was that the Central Land Board under Section 70 had so much discretion that appeal from it would be useless. In fact if an appeal went to the Tribunal, as we suggest, the Tribunal would not be able to upset any decision at all because they could not say that, in the words of the regulation, a certain amount did not represent the additional value,non tali auxilio nec defensoribus istis.
and so on. The hon. Member for Edge Hill, on the other hand, thinks exactly the opposite. He thinks that the Board have no discretion at all. If the hon. Member is right and there is very little discretion, it follows directly that there is great possibility of error. That is generally thought to be a good reason for providing an appeal. I appreciate what the right hon. and learned Gentleman said on the wording of the regulations, but, I would refer him to the exact form of the proposed new Clause, the exact words of which are:"to the satisfaction of the Board"
and then the Lands Tribunal"Any person aggrieved by the determination of a development charge by the Central Land Board under section seventy of the Town and Country Planning Act, 1947, may … appeal.…"
I should have thought, notwithstanding the words in the existing regulations, that the process of appeal would not be wholly futile and that the appeal tribunal would not be bound to uphold the determination of the Board. I take the view that it would only be likely to upset the determination in cases of obvious error. It would very much increase the confidence of the public if they knew there was an appeal in cases of obvious error. A greater sense of justice would be in the interests of town and country planning. All who have any experience of town and country planning know that nothing so much hinders the possibility of good planning as a widespread sense of injustice at the process. I believe that the actual number of decisions which would be called in question if this appeal were allowed would be few, and the reputation of the Central Land Board would be increased rather than diminished. It would be out of Order to discuss what was very germane to the regulations and was the subject of an important Debate on 26th May, 1948, which those interested will no doubt look at. Those regulations are, of course, alterable, should the Government decide at any time to alter them. It is quite clear, as was pointed out at that time and again this afternoon, that those regulations were certainly not the regulations contemplated by those who drafted the 1947 Act at the time that Act went through this House. The right hon. and learned Gentleman has mentioned the Lords as acting under a mistake of fact, but it is much truer that this House acted under a mistake of fact. While fully admitting that this is an amendment of the 1947 Act, in a sense in which what is being done in regard to Section 60 is not, I agree with my right hon. Friend the Member for Cirencester and Tewkesbury (Mr. W. S. Morrison) that the right hon. and learned Attorney-General did not consider the merits. Incidentally, on the merits it is impossible to reconcile the view of the Attorney-General that by reason of the words of the regulations, and the wide discretion they give, any appeal would be futile, with the very different grounds on which the Amendment was turned down by the Lord Chancellor. I am not at liberty to quote in detail, but the Lord Chancellor certainly did not think the effect of this Amendment, if embodied in the Bill, would be to create a futility. I hope the Government will reconsider their hostility to this Amendment. If carried, it would increase the public sense of the justice of the working of the Central Land Board, and thus aid the cause of town and country planning."shall make such determination as it may think fit.…"
We have had considerable discussion on this Amendment and, after all that has been said by my hon. Friends, it should be clear to the Attorney-General and hon. Members opposite that the case, for this Amendment on its merits, is very strong. Indeed, the case presented by us from this side of the House has not received any answer at all. The hon. Member for Penistone (Mr. McGhee), after revealing his lamentable ignorance of what the Conservative Party stand for, rather took the line that while there may be some land tribunal, it should not be this one, but that the matter should go to special commissioners. The hon. Member for Edge Hill (Mr. Irvine), while voicing support for the Attorney-General, did not add any weight to the argument advanced by the right hon. and learned Gentleman. The right hon. and learned Gentleman was very wise in not putting his main argument against this Amendment on the grounds of merit. I think he would find it extremely difficult to do so. He put the main ground for resistance on objection to the inclusion in what is a procedural Bill of a change in the substantive law. I feel sure he felt that objection would bear particular weight with me, having regard to threatened action in respect of another Bill dealing with procedural changes, which are very largely agreed.
While I sympathise with him to this degree, that it is always a little upsetting, as it must be for the bird which has a nest when the cuckoo comes along and lays an egg in that nest, at the same time there are cases—and I think this is one—where great weight should be placed on the merits. The strength of the case is such as to outweigh the advantage, if it be an advantage, of adhering solely to procedural law in a procedural Bill. In view of his argument that there was no appeal under Section 70 of the Town and Country Planning Act, 1947, whereas there was an appeal under Section 60, I would remind him, as I reminded him in the course of our Second Reading Debate on this Bill, of the reason for that. As I understand it, it was that under Section 70, in assessing development value, questions of policy should be taken into account; it was not to be an assessment of 100 per cent. of the development value all over the country; policy was to operate so as to deflect development into different parts of the country. That was a logical argument, as that Measure then stood, for giving a right of appeal only under Section 60 in regard to the claims against the £300 million fund. 6.0 p.m. That argument was completely destroyed when the regulations were made dealing with the assessment of development charge. It was then said—I remind the Attorney-General of this because he may perhaps attach great weight to the words of the Secretary of State for Scotland, who was the Member of the Government responsible for introducing these regulations, which were to be binding upon England and Wales—by the Secretary of State for Scotland:That was the intention of those regulaations. That statement does not really accord with the Attorney-General's statement today that those regulations leave the Central Land Board with very wide discretion as to the amount to be levied. The Secretary of State for Scotland was supported upon that point by the Minister of Town and Country Planning in the course of the same Debate, when he admitted that he had had to abandon what he had contemplated in the Act because it had been found to be unworkable. He said:"Therefore in framing these regulations we have laid down that a development charge will be 100 per cent. of the increased value and that that shall be in nearly all cases an invariable fixed basis on which the charge shall be made."
A little later, dealing with paragraph 3, he said:"In the course of the passage of the Bill it was contemplated that in some cases the charge might be less than 100 per cent. whereas in these regulations no such provision is made except in paragraph 3, and I agree with those Members opposite who have stated that the number of cases to which paragraph 3 will apply will be very small indeed."
I scarcely think that those statements by the Minister of Town and Country Planning, supporting the Secretary of State for Scotland, tally with and support the right hon. and learned Gentleman's argument against giving this right of appeal on the ground that these regulations leave the Central Land Board very wide discretion as to the amount to be levied. There is to be flexibility in valuation but not in the assessment, and each case is, if possible, to be assessed at 100 per cent. When this point was raised on the Second Reading of this Bill—I think I raised it—the line which the right hon. and learned Gentleman took in opposition to this point was somewhat different from that which he has taken today. One argument which he then advanced was that if we gave a right of appeal in regard to Section 70 it would be a statutory right whereas the 100 per cent. of assessment of development charge is in regulations, which may be altered. I suggest to him that as the Minister of Town and Country Planning has said that the scheme which he originally proposed of variable development charges on the grounds of policy had been found to be unworkable, there is no real prospect of the development charge regulations being materially altered. We have been told this afternoon by the Parliamentary Secretary to the Ministry of Town and Country Planning that they in the Ministry have really received no complaints as to the arbitrary and often punitive nature of the assessments of development charge which have been made by the Central Land Board."Even that does not necessarily permit of their making a charge of less than 100 per cent.… In other words, the flexibility which I had formerly thought the Central Land Board should be able to exercise, will arise in the process of valuation rather than in the percentage which they will be charging."—[OFFICIAL REPORT, 26th May, 1948; Vol. 451, c. 261 and 302–3.]
I did not say that there had been no complaints. That is an exaggeration of what I said.
Perhaps I was a little inaccurate, but the hon. Member said that very few complaints indeed had been received, or words to that effect. I am astonished that that should be so. I hope that wide publicity will be given to the statement that the Ministry is receiving very few complaints. I am sure that plenty of people in this country will be only too willing to send complaints to the Ministry of Town and Country Planning if they think that the sending of them will serve any useful purpose. A great many of us are getting complaints. I received one two days ago from someone in my part of the country who, after a valuation by a valuer of a plot of land, bought it for a sum slightly in excess of £200, intending to build a house for his own occupation—not one for sale or anything of that kind. He finds himself assessed to pay more than £200 in development charge upon that plot of land before he can build that house. It may be that that is the right sum; I do not know, nor, I suggest, does anyone in the Ministry of Town and Country Planning.
It is only common fairness and justice that a man who has an assessment like that made upon him as being the difference between the existing use value and the value with development permission should, if he does not think that that is the right assessment, and does not think it has been correctly determined, have a right of appeal to an independent and impartial tribunal such as this will create. It is a tribunal which is designed to deal with questions of valuation and, I think, not only questions of rating valuations but of valuations of precisely the same character which will arise under Clause 70 with regard to the difference of existing use value and the value of the unrestricted use of that land and under Clause 60 in respect of claims upon the £300 million fund. It is our belief that it is only right that people who are subject to determinations which appear to them to be completely wrong, unfair and unjustifiable, should have the right to put forward their case in public before an impartial tribunal. As that is our belief, and as the right hon. and learned Gentleman has not met, on the merits, the case which we have made in support of this Amendment, we shall have to carry this matter into the Division Lobby.I can only speak again with the permission of the House. What strikes me most about the course of our Debate is how singularly hon. Members opposite have failed to establish a case in favour of this Amendment. It is, I venture to think, for hon. Members opposite, and not, as the hon. Member for Hertford (Mr. Walker-Smith) said, for the Government, to establish this case. The onus is not on the Government here. Parliament had ample opportunity of discussing these matters in 1947, or indeed in 1949, as the hon. and learned Gentleman has just reminded me when he himself raised the matter on this very Bill. It is for hon. Members opposite to take upon themselves and to discharge the onus of showing that Parliament was wrong in the decision it came to in 1947, and in 1949, that it was inappropriate, at all events in this Bill, to give a right of appeal under Section 70.
In 1947 the circumstances were entirely different.
I am obliged to the hon. and learned Gentleman and I will deal with that point at once. It is a point made not only by the hon. and learned Gentleman, but also by the right hon. Member for Cirencester (Mr. W. S. Morrison)—I am always a bit nervous about the name of the right hon. Gentleman's constituency.
The learned Attorney-General can always say "Tewkesbury" if he is nervous.
The right hon. and learned Gentleman said that the Lands Tribunal was not in existence in 1947, and that therefore the circumstances, when this matter was discussed by Parliament on the Town and Country Planning Bill, were different. Of course it is true that the Lands Tribunal was not then in existence, but that, at all events, was no reason for not providing the right of appeal under Section 70 to some appropriate tribunal. Official arbitrators were in existence at that time. It was contemplated by Section 60 that they would be the appropriate tribunal for appeals in Section 60 cases, and if the House had thought it appropriate that there should be appeals under Section 70 they were at that time the appropriate tribunal for such appeals.
We moved an Amendment which was rejected.
Quite so. The whole question was discussed then, and it was not the absence of the Lands Tribunal which led to the rejection of the hon. and learned Gentleman's Amendment. It was that this House thought, rightly or wrongly on the merits, that it was not appropriate to have such appeals under Section 70, but it was appropriate to have such appeals under Section 60.
Does the right hon. and learned Gentleman agree that the reason put forward by the Government then was that the development charge would be affected on questions of policy and would be variable having regard to policy?
I have no doubt that that may have influenced the view of some hon. Members in the conclusion they came to on this matter. But it was not, as the right hon. and learned Gentleman appeared at one time to suggest, that there was not at that time an appropriate appellant tribunal to deal with any such appeal, if such appeal there ought to have been.
I do not wish to pursue this matter. It is not perhaps of very great importance. But I do not think that hon. Members opposite have really sought to contest the fact, strange as it is—and I have the highest respect for Debates in another place—that the other place was under a complete misapprehension over this Bill. If the hon. Member for Hertford will look at the speech of the noble and learned Lord who moved the Amendment he will find—I must not quote the noble and learned Lord, I can only refer by paraphrase to what he said—that the noble and learned Lord did suggest to the House that the jurisdiction of the Central Land Board under Section 60 was being transferred to this new Lands Tribunal. That appears in somewhat similar language, I think the hon. Member will find, in column 345, in the last paragraph of that column. It is quite clear that both the noble and learned Lord and the acting Leader of the Opposition were putting the matter in that way. They were saying that here was a Bill which was going to create a right of appeal where none existed before under Section 60 in regard to development valuation, so why then not create a similar right of appeal under Section 70 in regard also to development valuations? There is no doubt about that, and that that misapprehension existed. I hope that it does not exist in this House and that we can deal with the matter quite independently of any such mistake. 6.15 p.m. The hon. and learned Member for Daventry (Mr. Manningham-Buller) put to me, as indeed the right hon. Gentleman had put earlier, the point about the view, taken during the passage of the Town and County Planning Bill in 1947, as to the probability that development values under Section 70 might be affected by questions of policy. It is perfectly true, and I concede at once, that it was then said that there ought to be elasticity in regard to the quantum of the development charge; and that in appropriate circumstances it might be right—as, for instance, by charging a lower amount, less than the actual development value—to promote development by adjustments in the actual development charge that was levied in particular cases. It is also true, and I can concede it at once, that under the existing regulations the charge is in general to be levied at 100 per cent. and therefore in general it is not now affected by planning considerations or questions of policy of that kind. But the Act does in fact provide elastiticity, and as the hon. and learned Member for the Combined English Universities (Mr. H. Strauss) pointed out, these regulations can be amended. I do not suggest that they are going to be; I have no idea; but it may be that in the working of the Act, as time goes on, it will be found desirable to amend them in order to enable the charge to be effected in accordance with the desirability of development. Whatever may have been said about the matter by the Secretary of State for Scotland, it is quite clear that the regulations do themselves, in terms, provide that in a number of cases discretion is to be left to the Central Land Board. If hon. Members look at paragraphs 3 and 4 of the regulations, they will find that that is so. Moreover, in paragraph 4 it is stated in terms:That gives the Board an absolute discretion subject to that governing principle in the consideration of a number of cases involved in Part VIII—"Where in the special case of any land of a class referred to in Part VIII of the Act … the application of the foregoing principles would, in the opinion of the Board, be inappropriate, the Board shall apply the governing principle subject to such modification as is in their opinion appropriate to that special case."
Does not the Attorney-General agree that the governing principle very considerably limits the discretion?
Certainly, Sir. I would not attempt for a moment to suggest that it did not. But in spite of the governing principle these regulations themselves clearly contemplate that in particular cases a considerable discretion is left in the Board:
That is, in those special cases—and I agree they are a limited class of case—a provision which can clearly leave the Board with considerable discretion."… the Board shall apply the governing principle subject to such modification as in their opinion is appropriate to that special case."
Does not that seem extraordinary in that, in the case which my right hon. Friend quoted, about Mr. Crook the chemist and sub-postmaster, when the matter was taken up about the desirability of moving the post office and was supported by the Postmaster-General, Sir Malcolm Trustram Eve said that there was no provision whereby Mr. Crook could be granted exception from payment, or at any rate, where there could have been a reduction of the development charge?
I dare say that in that case he was asked to deal with the question of exemption, and that is the question to which the reply was directed. It may well be that the particular case was not one in which the Central Land Board had discretion. I am not saying that they have discretion in every case. It is, in fact, only in a limited number of cases compared with the total that they have a discretion. But it is quite clear, under the regulations as at present drafted, that that discretion is vested in the Central Land Board in what is a not inconsiderable number of cases.
The right hon. Gentleman and other hon. Members referred to certain particular cases. I am not quite sure, but I think that the total number referred to in the whole course of our Debate was five particular cases, in which it was suggested that some sort of injustice had been done. The right hon. Gentleman referred in particular to one case with which, fortunately, I am able to deal, because it was referred to in another place. I wish that it were possible under our Rules of Order for me to deal with all the other cases—I think there were only four—referred to in another place, because I believe that I could give a convincing answer in regard to them. I cannot, of course, attempt to give an answer on the cases raised here without notice, but I can at least deal with one case. It concerned a club called the Union Club. The right hon. Gentleman said that there had been two determinations of development value, that one of them must have been wrong, and that therefore there should have been a right of appeal. That argument was, if I may respectfully say so, wholly misconceived. What happened was that the district valuer was asked on the telephone for a rough informal assessment of the charge which would be payable if the club bought some premises in Grosvenor Square and adapted them for use as a club. The district valuer gave a figure of £60,000 over the telephone, without having the opportunity of making any formal valuation, but having regard to the purchase price the club told him they were proposing to pay. They were contemplating paying a sum of £100,000, which appeared to be an excessive amount. Relying on those figures given on the telephone, and being asked to give a rough informal assessment, the district valuer gave that figure. After that, in the ordinary course, the Union Club had to send in the necessary particulars and details of the premises they proposed to acquire. On making a proper valuation, with the full information before him, the district valuer reduced the figure to £35,000. On learning that the probable development charge that would be payable by them was £35,000—not £60,000 as at first thought—the club were able to indicate to the proposed vendors that they were not willing to pay a price anywhere near the £100,000 which they had at first been asked to pay. The right hon. Gentleman seemed to draw from the circumstances of that case the curious conclusion that the district valuers or the Central Land Board never heard anyone's case, but decided the matter in an arbitrary way behind closed doors. The true moral of that case, and indeed of the other cases mentioned in another place, is that district valuers are very ready to revise the rough figures which they may give in the first instance, and are always ready to negotiate these matters with the applicants who are seeking to get development charges assessed. I am sorry that I cannot deal equally with the other cases raised by hon. Members. Nor do I propose to deal now, at all events at any length, with the general merits of this matter. The position is that the Central Land Board is the owner, the landlord of the land, and like other owners and other landlords—and in some areas landowners have a complete monopoly of the available land—they fix the amount of the development charge in negotiation with the tenant or applicant who comes to them. The general experience in the working of this section has been that all over the country the charges have been agreed without any difficulty, and in the most amicable way. There are, of course—and this I cannot help thinking was the kind of case the hon. and learned Member for Daventry had in mind—many people, I dare say most landowners, who object to having to pay a development charge at all, who object to the policy of the Act in levying these charges, and who would rather not have to pay anything. But subject to that, and accepting the policy of the Act, that development charges have to be paid, the experience has been that very rarely has there been any difficulty or disagreement as to the actual amount of the charge, and there really is not the slightest justification for the sweeping generalisations which have been made, both here and in another place, that the Act was working unsatisfactorily or unjustly in regard to the actual assessment of charges. Indeed, hon. Members opposite, perhaps not for the first time, seek to have it both ways. If the charge is too high they say that is wrong, and if on further negotiation the district valuer reduces the charge they say that is wrong, too.Both assessments may be wrong.
It is possible that both assessments may be right, but in the end the general experience is that—
They cannot both be right.
I am sorry. I did not follow the point the hon. Gentleman was making. At all events, in the vast majority of cases the eventual assessments are agreed amicably with the owners and tenants of the land concerned, and it is quite untrue to suggest, as did the hon. Member for The High Peak, that there have been widespread complaints about this matter. The Ministry, as we have heard from the Parliamentary Secretary, have had comparatively few complaints. I personally—and I mention this because other hon. Members have mentioned complaints raised at meetings—either in my official capacity or in going about the country addressing meetings, have never once had a complaint that the assessment charges have been unjustly or inequitably assessed.
I think the right hon. and learned Gentleman would at any rate admit that the uncertainty has caused a great deal of projected work not to be proceeded with. I could myself give him several instances of that.
There need be no uncertainty about the matter. It is possible to obtain an assessment of a development charge quite quickly and quite certainly. I will say something about that in a moment. When the uncertainty is resolved and the development charge is assessed it may in particular cases discourage development. I will say something about that in a moment; I am not concealing that. But there is no reason for any uncertainty to exist. Indeed, if we provided a right of appeal to the Lands Tribunal a point of law might be taken right on to the House of Lords, and there would certainly be uncertainty and delay in fixing a development charge in particular cases. But there is no reason for any delay or uncertainty about the matter now.
The hon. Member for The High Peak said that no general instructions had been given to the district valuers—I think I am correct in attributing this point to him—but that is quite incorrect. The Central Land Board has published, as the hon. Member for Hertford pointed out, a very detailed and almost voluminous body of practice notes, setting out all sorts of principles and rules upon which the district valuers and the Central Land Board will act. I am told that these have been of very great assistance to the surveyors' profession and to the valuers in arriving at agreed valuations. The district valuers have been instructed, first, that they should notify applicants as quickly as they can of the provisional valuation, and that they should offer at all stages to discuss the matter with applicants and try to arrive at an agreed valuation in an amicable way. 6.30 p.m. In the vast majority of cases, that has in fact been done, and to bring up in this House five, and in the other House four, particular cases, and to argue from those particular cases, brought up without notice, that the scheme is working inequitably, is, I venture to think, a method which will not commend itself to the House. If indeed hon. Members opposite are getting numerous complaints about these methods, I hope they will pass them on to the Ministry of Town and Country Planning, which I am sure will be interested to consider them, and which, no doubt, if it feels that this scheme is working unsatisfactorily and giving rise to inequitable results, will consider the question of a possible appeal on its merits and in the light of such evidence as is made available to it. The hon. Member for Hertford took the point that it was inequitable that the assessment of the charge should be left to negotiations between the tenant and the landlord, who had a monopoly, and it is very gratifying to hear the hon. Gentleman and other hon. Members opposite coming out in clear opposition to monopolies in these matters. But this particular monopoly, we ought perhaps to remember, is a public one conducted in the public interest, and subject to the control of the Minister and to the control of Parliament. Now I come to the point raised by the hon. Member in regard to the possibly discouraging effect on development of charges which were too high. If, in fact, it turned out that development values were being charged at so high a rate that they were discouraging development, I would have thought that that would be the very thing, far more than any right of appeal to the Lands Tribunal or any other body, which would in itself result in the charges coming down, because of course the Central Land Board, unlike the Lands Tribunal, is vested with important responsibilities under the Act, and is subject to the control of the Minister and eventually to the control of this House. If indeed it did appear that the policy pursued by the Board in relation to development charges was discouraging development, that more than anything else would lead to the modification of the policy.May I ask the right hon. and learned Gentleman a question? He has made the rather important statement that the Central Land Board is subject to the control of the Minister. Which provision has he in mind?
I would not pledge myself to the particular Section, but if the hon. and learned Gentleman turns it up I think he will find that it is one of the early sections and that it does, in terms, provide that the Central Land Board is subject to directions of a general character by the Minister. I think that is so.
Section 2 or 3.
I am much obliged. I am told that it is either Section 2 or 3, and if the hon. and learned Gentleman will look at either of those Sections, he will find that they provide something to that effect. In fact, I am informed that it is Section 3 (1), which states:
Then, there is the power of the Minister to make regulations in regard to the development charge, and if he find that high development charges under the present regulations are discouraging development, I should imagine that the first thing he would do would be to alter the regulations."(1) The Central Land Board shall, in the performance of their functions under this Act, comply with such directions of a general character as may be given to them by the Minister."
May I put this question to the right hon. and learned Gentleman? The only point that I wish to make clear is this. If the right hon. and learned Gentleman had that Section in mind, is it not the case that it does not provide the Minister with any sort of remedy if an individual development charge is wrongly assessed?
I do not think anybody, even the hon. and learned Gentleman himself, will imagine that I have suggested anything to that effect. The Minister has general control over the Central Land Board, as Ministers have under various Acts passed by this Parliament establishing national boards.
The hon. Member for Hertford was followed by the hon. Member for Torquay (Mr. C. Williams), who spoke at some little length. If he will permit me to say so, he always succeeds in compressing the maximum number of words into the minimum number of ideas, and I must be careful not to follow him in that respect. The hon. and learned Member for the Combined English Universities took the point that, under the Amendment, as drafted, the Lands Tribunal could make such decisions as they thought fit, and if that is so, and it may well be so, that would of course result in a transfer to the Lands Tribunal of the discretion now vested in the Central Land Board. As I have just pointed out, the Board is vested with important responsibilities in the code established by the 1947 Act and is subject to general control by the Minister and Parliament, and the position under this Amendment must be that either appeals to the Lands Tribunal will be futile, because the Lands Tribunal will be unable to interfere with the discretion of the Central Land Board, or the discretion now vested in that Board and under the general control of the Minister and this House will be transferred to the Lands Tribunal, which has no responsibility to any one in the matter and is not within the system for securing the planning and development of land, as the Central Land Board is.I am grateful to the right hon. and learned Gentleman for giving way again, but this is rather an important point. Does he say that, if the Central Land Board made an obvious mistake which took them quite outside paragraph 2 of the regulations, under this Amendment it could not be put right?
No, I am not saying that. I am dealing with the point of discretion, and I say that either the Lands Tribunal must exercise the discretion now vested in the Central Land Board, which is an organisation within the general code for the development and the planning of land under the 1947 Act, or it can do nothing where the Board has exercised its discretion. That is clearly the position, and, whichever the result, in my submission it is equally undesirable.
I am not the Minister responsible for the administration of the Town and Country Planning Act, but I am the Minister responsible in this House for dealing with matters of legal procedure and machinery. I think the hon. and learned Member for Daventry will agree with me that those who desire to improve the machinery of our law are often impeded by attempts to use machinery Bills as a vehicle for altering the principles and substance of the law itself. If on the merits there ought to be an appeal in this kind of case, it will have to be provided for by amendment to the Town and Country Planning Act, and that Act will have to lay down an appropriate code on which the Central Land Board will be required to act, and departures from which can be made the subject of appeal. It is quite wrong to say that the position at present as between Sections 60 and 70 is the same. For Section 60, a code is laid down by Sections 61 and 62 which attracts some of the rules—not all, but a good many—of the 1919 Act. For Section 70, there are, it is true, the practice notes, but they are administrative and can be changed at any time in the discretion of the Central Land Board. We have, on the one hand, a statutory code to which the Central Land Board must adhere; on the other hand, administrative rules are published for the information of the public which the Central Land Board use when guiding themselves in the exercise of their discretion.Would not the right hon. and learned Gentleman agree that what he calls the statutory code under Section 61 or Section 62 is cast in wide terms, and would he not agree, from a study of the practice notes, that though the words are different in the two cases, the Land Board has clearly come to the conclusion that the more they apply them in practice, the closer they seem to be?
That may well be so; I am not arguing that point. What I am saying is that if we create a legal right of appeal from the Central Land Board, we must have a statutory code. It might be very similar to the administrative code set out in the practice notes, but we cannot have a workable appeal unless we have a statutory code and can go to the appellant Tribunal and say that the Central Land Board have departed in one particular or another from the code imposed upon them by statute. I ask the House to say that whatever case there might be for an appeal under Section 70 on the merits, this is not the occasion on which to provide that appeal. To pass this Bill with this Amendment would indeed bring very great grist, I venture to think, to the legal mill, but it would introduce complete muddle and confusion into the administration of the Town and Country Planning Act.
Question put, "That this House doth disagree with the Lords in the said Amendment."
The House divided: Ayes, 225; Noes, 129.
Division No. 150.]
| AYES
| [6.42 p.m.
|
| Adams, Richard (Balham) | Hale, Leslie | Pryde, D. J. |
| Albu, A. H. | Hall, Rt. Hon. Glenvil | Pursey, Comdr. H. |
| Allen, Scholefield (Crewe) | Hamilton, Lieut.-Col. R. | Ranger, J. |
| Anderson, A. (Motherwell) | Harrison, J. | Rees-Williams, D. R. |
| Austin, H. Lewis | Hastings, Dr. Somerville | Raid, T. (Swindon) |
| Awbery, S. S. | Herbison, Miss M. | Rhodes, H. |
| Ayrton Gould, Mrs. B. | Hobson, C. R. | Ridealgh, Mrs. M. |
| Bacon, Miss A. | Holman, P. | Roberts, Goronwy (Caernarvonshire) |
| Balfour, A. | Holmes, H. E. (Hemsworth) | Robertson, J. J. (Berwick) |
| Barstow, P. G. | Horabin, T. L. | Robinson, K. (St. Pancras) |
| Barton, C. | Hoy, J. | Rogers, G. H. R. |
| Battley, J. R. | Hubbard, T. | Ross, William (Kilmarnock) |
| Benson, G. | Hudson, J. H. (Eating, W.) | Royle, C. |
| Beswick, F. | Hughes, Hector (Aberdeen, N.) | Sargood, R. |
| Bing, G. H. C. | Hughes, H. D. (W' Iverh' pton, W.) | Scollan, T. |
| Binns, J. | Hynd, J. B. (Attercliffe) | Scott-Elliot, W. |
| Blackburn, A. R. | Irvine, A. J. (Liverpool) | Segal, Dr. S. |
| Blyton, W. R. | Irving, W. J. (Tottenham, N.) | Shackleton, E. A. A. |
| Boardman, H. | Janner, B. | Sharp, Granville |
| Bowden, Fig. Offr. H. W. | Jeger, G. (Winchester) | Shawcross, Rt. Hn. Sir H. (St. Helens) |
| Braddock, Mrs. E. M. (L' pl. Exch' ge) | Jeger, Dr. S. W. (St. Pancras, S. E.) | Shurmer, P. |
| Braddock, T. (Mitcham) | Jones, D. T. (Hartlepool) | Silkin, Rt. Hon. L. |
| Bramall, E. A. | Jones, P. Asterley (Hitchin) | Silverman, J. (Erdington) |
| Brock, D. (Halifax) | Keenan, W. | Silverman, S. S. (Nelson) |
| Broughton, Dr. A. D. D. | Kenyon, C. | Skeffington, A. M. |
| Brown, T. J. (Ince) | King, E. M. | Skeffington-Lodge, T. C. |
| Bruce, Maj. D. W. T. | Kinghorn, Sqn.-Ldr. E. | Skinnard, F. W. |
| Butler, H. W. (Hackney, S.) | Kinley J. | Smith, Ellis (Stoke) |
| Carmichael, James | Kirby, B. V. | Smith, H. N. (Nottingham, S.) |
| Champion, A. J. | Kirkwood, Rt. Hon. D. | Smith, S. H. (Hull, S. W.) |
| Cluse, W. S. | Lang, G. | Snow, J. W. |
| Cobb, F. A. | Lee, F. (Hulme) | Solley, L. J. |
| Cocks, F. S. | Leonard, W. | Soskice, Rt. Hon. Sir Frank |
| Collick, P. | Leslie, J. R. | Sparks, J. A. |
| Collindrige, F. | Levy, B. W. | Stross, Dr. B. |
| Collins, V. J. | Lewis, A. W. J. (Upton) | Stubbs, A. E. |
| Cooper, G. | Lipton, Lt.-Col. M. | Swingler, S. |
| Corlett, Dr. J. | Logan, D. G. | Sylvester, G. O. |
| Cove, W. G. | Lyne, A. W. | Symonds, A. L. |
| Crawley, A. | McAdam, W. | Taylor, R. J. (Morpeth) |
| Crossman, R. H. S. | McGhee, H. G. | Taylor, Dr. S. (Barnet) |
| Daggar, G. | McKay, J. (Wallsend) | Thomas, D. E. (Aberdare) |
| Daines, P. | Mackay, R. W. G. (Hull, N. W.) | Thomas, George (Cardiff) |
| Davies, Harold (Leek) | Maclean, N. (Govan) | Thomas, John R. (Dover) |
| Davies, Haydn (St. Pancras, S. W.) | McLeavy, F. | Tiffany, S. |
| Davies, R. J. (Westhoughton) | MacMillan, M. K. (Western Isles) | Timmons, J. |
| Davies, S. O. (Merthyr) | MacPherson, Malcolm (Stirling) | Titterington, M. F. |
| Diamond, J. | Macpherson, T. (Romford) | Tolley, L. |
| Dobbie, W. | Mainwaring, W. H. | Tomlinson, Rt. Hon. G. |
| Dodds, N. N. | Mallalieu, E. L. (Brigg) | Turner-Samuels, M. |
| Donovan, T. | Mallalieu, J. P. W. (Huddersfield) | Viant, S. P. |
| Driberg, T. E. N. | Mann, Mrs. J. | Walker, G. H. |
| Edwards, Rt. Hon. Sir C. (Bedwellty) | Marquand, Rt Hon. H. A. | Wallace, G. D. (Chislehurst) |
| Edwards, Rt. Hon. N. (Caerphilly) | Mellish, R. J. | Wallace, H. W. (Walthamstow, E.) |
| Evans, E. (Lowestoft) | Messer, F. | Watkins, T. E. |
| Evans, S. N. (Wednesbury) | Middleton, Mrs. L. | Webb, M. (Bradford, C.) |
| Ewart, R. | Milligton, Wing-Comdr. E. R. | Wells, W. T. (Walsall) |
| Fairhurst, F. | Mitchison, G. R. | West, D. G. |
| Fernyhough, E. | Morley, R. | Wheatley, Rt. Hn. J. T. (Edinb' gh, E.) |
| Fletcher, E. G. M. (Islington, E.) | Mort, D. L. | Whiteley, Rt. Hon. W. |
| Follick, M. | Moyle, A. | Wilcock, Group-Capt. C. A. B. |
| Foot, M. M. | Nally, W. | Wilkins, W. A. |
| Forman, J. C. | Naylor, T. E. | Willey, F. T. (Sunderland) |
| Fraser, T. (Hamilton) | Oldfield, W. H. | Williams, D. J. (Neath) |
| Gallagher, W. | Oliver, G. H. | Williams, J. L. (Kelvingrove) |
| Ganley, Mrs. C. S. | Parker, J. | Williams, Ronald (Wigan) |
| Gibbins, J. | Parkin, B. T. | Williams, W. T. (Hammersmith, S.) |
| Gibson, C. W. | Paton, Mrs. F. (Rushcliffe) | Willis, E. |
| Gilzean, A. | Paton, J. (Norwich) | Wise, Major F. J. |
| Glanville, J. E. (Consett) | Pearson, A. | Wyatt, W. |
| Gooch, E. G. | Peart, T. F. | Yates, V. F. |
| Goodrich, H. E. | Piratin, P. | Young, Sir R. (Newton) |
| Griffiths, Rt. Hon. J. (Llanelly) | Platts-Mills, J. F. F. | Younger, Hon. Kenneth |
| Guest, Dr. L. Haden | Popplewell, E. | |
| Guy, W. H. | Porter, G. (Leeds) | TELLERS FOR THE AYES:
|
| Haire, John E. (Wycombe) | Proctor, W. T. | Mr. Joseph Henderson and Mr. Hannan. |
NOES
| ||
| Agnew, Cmdr. P. G. | Gridley, Sir A. | Neven-Spence, Sir B. |
| Amory, D. Heathcoat | Grimston, R. V. | Nield, B. (Chester) |
| Baldwin, A. E. | Hannon, Sir P. (Moseley) | Odey, G. W. |
| Barlow, Sir J. | Harden, J. R. E. | Orr-Ewing, I. L. |
| Beamish, Maj. T. V. H. | Hare, Hon. J. H. (Woodbridge) | Peaks, Rt. Hon. O. |
| Bennett, Sir P. | Harris, F. W. (Croydon, N.) | Peto, Brig, C. H. M. |
| Birch, Nigel | Harvey, Air-Comdre. A. V. | Pickthorn, K. |
| Boles, Lt.-Col. D. C. (Wells) | Head, Brig. A. H. | Prior-Palmer, Brig. O. |
| Bossom, A. C. | Headlam, Lieut.-Col. Rt. Hon. Sir C. | Renton, D. |
| Boyd-Carpenter, J. A. | Henderson, John (Cathcart) | Roberts, H. (Handsworth) |
| Braithwaite, Lt.-Comdr. J. G. | Hinchingbrooke, Viscount | Robertson, Sir D. (Streatham) |
| Buchan-Hepburn, P. G. T. | Hogg, Hon. Q. | Robinson, Roland (Blackpool, S.) |
| Bullock Capt. M. | Hollis, M. C. | Ropner, Col. L. |
| Butcher, H. W. | Hope, Lord J. | Sanderson, Sir F. |
| Butler, Rt. Hn. R. A. (S' ffr'n W' ld' n) | Howard, Hon. A. | Scott, Lord W. |
| Challen, C. | Hudson, Rt. Hon. R. S. (Southport) | Shephard, S. (Newark) |
| Channon, H. | Jeffreys, General Sir G. | Smithers, Sir W. |
| Churchill, Rt. Hon. W. S. | Jennings, R. | Snadden, W. M. |
| Clarke, Col. R. S. | Joynson-Hicks, Hon. L. W. | Spearman, A. C. M. |
| Clifton-Brown, Lt.-Col. G. | Keeling, E. H. | Spence, H. R. |
| Conant, Maj. R. J. E. | Kendall, W. D. | Stanley, Rt. Hon. O. |
| Crosthwaite-Eyre, Col. O. E. | Law, Rt. Hon. R. K. | Stoddart-Scott, Col. M. |
| Crowder, Capt. John E. | Lennox-Boyd, A. T. | Strauss, Henry (English Universities) |
| Cuthbert, W. N. | Lindsay, M. (Solihull) | Stuart, Rt. Hon. J. (Moray) |
| Davidson, Viscountess | Low, A. R. W. | Taylor, C. S. (Eastbourne) |
| Dodds-Parker, A. D. | Lucas-Tooth, Sir H. | Teeling, William |
| Dower, Col. A. V. G. (Penrith) | Lyttelton, Rt. Hon. O. | Thorneycroft, G. E. P. (Monmouth) |
| Drayson, G. B. | MacArdrew, Col. Sir C. | Thorp, Brigadier R. A. F. |
| Drewe, C. | McCallum, Maj. D. | Touche, G. C. |
| Dugdale, Maj. Sir T. (Richmond) | McCorquodale, Rt. Hon. M. S. | Turton, R. H. |
| Eeeles, D. M. | McFarlane, C. S. | Vane, W. M. F. |
| Eden, Rt. Hon. A. | Mackeson, Brig. H. R. | Wakefield, Sir W. W. |
| Elliot, Lieut.-Col. Rt. Hon. Walter | McKie, J. H. (Galloway) | Walker-Smith, D. |
| Fleming, Sqn.-Ldr. E. L. | Maclay, Hon. J. S. | Ward, Hon. G. R. |
| Fletcher, W. (Bury) | Maclean, F. H. R. (Lancaster) | Webbe, Sir H. (Abbey) |
| Foster, J. G. (Northwich) | Macmillan, Rt. Hon. Harold (Bromley) | Wheatley, Colonel M. J. (Dorset, E.) |
| Fraser, H. C. P. (Stone) | Macpherson, N. (Dumfries) | White, J. B. (Canterbury) |
| Fyfe, Rt. Hon. Sir D. P. M. | Maitland, Comdr. J. W. | Williams, C. (Torquay) |
| Gaga, C. | Manningham-Buller, R. E. | Williams, Gerald (Tonbridge) |
| Galbraith, Cmdr. T. D. (Pollok) | Marshall, D. (Bodmin) | Willoughby de Eresby, Lord |
| Galbraith, T. G. D. (Hillhead) | Maude, J. C. | Young, Sir A. S. L. (Partick) |
| Gammans, L. D. | Medlicott, Brigadier F. | |
| Glyn, Sir R. | Morris, Hopkin (Carmarthen) | TELLERS FOR THE NOES:
|
| Gomme-Duncan, Col. A. | Morrison, Rt. Hn. W. S. (Cirencester) | Mr. Studholme and Mr. Wingfield Digby. |
Clause 10—(Short Title, Commencement And Repeal)
In page 11, line 18, at beginning insert "Sections one to four of."
I beg to move, "That this House doth agree with the Lords in the said Amendment."
It would perhaps be for the convenience of the House if we took, with this Amendment, the two subsequent Amendments in lines 21 and 23. These three Amendments are drafting. Their joint effect is to secure that the provisions of Clause 3, which enable points of law to be taken right up to the House of Lords if need be, and the provisions of Clause 5, regarding procedure on the withdrawal of notices to treat, shall come into operation immediately the Royal Assent is given. Hon. Members will recall that the Lands Tribunal themselves may not be set up at once, but there seems to be no reason why these provisions should await the establishment of the Tribunal.Question put, and agreed to.
Lords Amendment: In page 15, line 60, at end, add:
Remaining Lords Amendments agreed to. [One with Special Entry.]
Committee appointed to draw up a Reason to be assigned to the Lords for disagreeing to one of their Amendments to the Bill: —Mr. Glenvil Hall, Mr. Manningham-Buller, Mr. W. S. Morrison, Mr. Proctor and Mr. Harry Wallace: —Three to be the Quorum—[ The Attorney-General.]
To withdraw immediately.
Reason for disagreeing to one of the Lords Amendments reported, and agreed to.
To be communicated to the Lords.
Legal Aid And Advice Bill
Order for consideration, as amended (in the Standing Committee), read.
Bill recommitted to a Committee of the whole House in respect of the Amendments in Clause 7, page 8, line 12; Clause 21, page 20, line 25 and Clause 22, page 21, line 36, standing on the Notice Paper in the name of the Attorney-General.—[ The Attorney-General.]
Bill immediately considered in Committee.
[Mr. BOWLES in the Chair]
Clause 7—(Right To And Nature Of Legal Advice)
I beg to move, in page 8, line 12, at the end, to insert:
The hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) pointed out in our discussions upstairs that demobilised members of the Forces on their return to this country might, perhaps, after the lapse of some period of time—six months or nine months—find themselves in need of legal advice on some matter which had not manifested itself during their service abroad and which involved some question of the foreign law of the country in which they had been serving. This Amendment would enable the Forces' legal adviser to give legal advice to a demobilised member of the Forces in regard to matters arising under foreign law during their period of service."(4) In the case of a person who has been a member of the forces at any time after the passing of this Act, the last foregoing subsection (except paragraph (b) thereof) shall apply so as to authorise the giving of advice on matters arising in the course of his service outside England and Wales, as it applies in the case of a person who is a member of the forces."
We do not object to this Amendment; in fact, we think it is desirable. I should, however, like to ask one or two questions about it. When the demobilised member of His Majesty's Forces wants advice or aid in regard to the law of the country in which he has been serving, will he apply as an ordinary civilian does and be required to make a contribution or pay a fee for the advice, or will he be treated as a serving member of the Forces in respect of this particular advice and be able to obtain it free?
The right hon. and learned Gentleman said the man would have recourse to the Forces' legal adviser. One does not know quite how that will operate. I wonder whether the Attorney-General could throw a little more light on that point. As I understood it, in Committee it was stated that the Law Society were to be responsible both for the provision of legal aid to civilians and also for the provision of legal aid to the Forces, whether in this country or abroad, and, if that be the case, I think it would be valuable if the right hon. and learned Gentleman could give us a little more indication of how this scheme will operate in consequence of this Amendment. If I may remind him, the right hon. and learned Gentleman also said on the Committee stage that he would consider extending the facilities provided for members of His Majesty's Forces to the Control Commission. He said he would think about that again. I assume he has thought about it again and I also assume, from his silence upon this matter, that he has not found it possible to widen the scope of these facilities so as to include members of the Control Commission.The assumption in the last part of the hon. and learned Gentleman's speech is correct. We gave further consideration to the possibility of providing facilities for legal aid to members of the Control Commission, but we were unable to find any reason why they, and not other public servants serving abroad in other parts of the world, should be entitled to these special facilities. We thought, therefore, that it would be inappropriate to provide them.
So far as the demobilised member of the Forces is concerned, he will be entitled to receive legal advice as if he were a member of the Forces, that is to say, without paying for it. He will, of course, apply as a civilian, it is true, through the Law Society and they will forward his request for information and advice to the appropriate legal officer in the country in which he was serving. I do not know whether that will happen in every case; it may be that they will have at hand in London an officer able to give advice, but normally I suppose the matter will have to be referred to the legal officer at the military station at which the soldier was serving.But under Clause 7 the advice must be limited. He must receive advice on the English law and not on the law of the place where he happens to have been.
The hon. and learned Member for Gloucester (Mr. Turner-Samuels) has misread the Clause, because I am quite sure that the effect of this provision is to enable members of His Majesty's Forces to obtain advice on the law of the country, outside Great Britain, in which they have been serving.
That may be so in the view of the hon. and learned Member for Daventry (Mr. Manningham-Buller), but I think it is perfectly clear under Clause 7 that it does not operate in that way, and I see nothing in the Amendment which amplifies that at all. The Amendment is simply in connection with some matter which has occurred whilst the person in the Services was abroad. If one looks at Clause 7, it is perfectly clear that he is precluded from receiving advice on any law other than the English law.
7.0 p.m.
I think the hon. and learned Gentleman is wrong. Subsection (3, c) makes provision for including other countries by regulation, and this Amendment brings in a new subsection (4), which refers back specifically to that subsection.
With respect, the regulations may be introduced to extend the operation of this Bill. We are not dealing with them. That is a matter for the future, and it could be accomplished, I think, without this Amendment. The point we are discussing is this particular Amendment, and, in my submission to the Attorney-General, the Clause would, as it stands now, even with the Amendment, preclude a man from receiving advice on any law other than English law.
I am afraid I do not agree with my hon. and learned Friend's construction of the Bill and the Amendment. Under the Bill as it stands, members of the Forces are entitled to legal aid in special circumstances and on different conditions from civilians, but they are not entitled to such aid after their demobilisation. The Bill provides that whilst they are members of the Forces they may obtain, subject to regulations to be made under Clause 7 (3), advice on the law of the places where they have been serving as soldiers. This Amendment is intended to extend that provision to them after their demobilisation, and I think it succeeds in so doing.
Amendment agreed to.
Clause, as amended, ordered to stand part of the Bill.
Clause 21—(Cost Of Legal Aid In Magistrates' Courts)
I beg to move, in page 20, line 25, at the end, to insert:
This Amendment provides that the costs of the solicitor acting on the legal aid certificate in courts of summary jurisdiction should include the fees and disbursements reasonably undertaken by him in giving notice of an appeal or applying for a case to be stated, and in respect of matters incidental to that step towards an appeal, subject to this limitation, that what the solicitor has done has been done within the ordinary and limited time for taking those appellant steps—14 days, I think it is, for appeal to quarter sessions, and seven days for a case stated. I think this Amendment will meet the main point of the new Clause standing on the Order Paper in the name of my hon. Friend the Member for Rotherhithe (Mr. Mellish)—[Retention of solicitor or counsel in case of conviction.]—and will enable the solicitor who has conducted the case in the court—and this is, I think, the point of my hon. Friend's proposed new Clause—to advise on an appeal. If, after notice has been given, or application has been made for a case to be stated, an appeal is actually prosecuted and there is a hearing, then a fresh certificate will be applied for to the committee, but the solicitor who has been authorised to conduct the proceedings in the court of summary jurisdiction itself will be entitled to take those initial steps which have to be taken in a limited time."(4) The costs of a solicitor which are payable under this section in respect of proceedings before a court of summary jurisdiction may include sums for his fees and disbursements in respect of work reasonably undertaken by him in giving notice of appeal or applying for a case to be stated and in matters preliminary thereto, being work done within the ordinary time for giving the notice or making the application."
Amendment agreed to.
Clause, as amended, ordered to stand part of the Bill.
Clause 22—(Cost Of Legal Aid In Other Courts)
I beg to move, in page 21, line 36, at the end, to insert:
This is a somewhat similar provision, to enable the solicitor who has acted for an assisted litigant on trial on indictment or on appeal to the court of quarter sessions to advise on, and to take the necessary preliminary steps with a view to, appeal either to the Court of Criminal Appeal, if the trial was on indictment, or to the High Court after appeal to quarter sessions by way of case stated. There again the time is limited, and it is right that the solicitor already acting should be entitled to continue the case."(4) Where after the commencement of this Part of this Act free legal aid is granted under section one of the Poor Prisoners' Defence Act, 1930, or under section two of the Summary Jurisdiction (Appeals) Act, 1933, the costs which are directed to be paid out of local funds shall be treated as including sums for any fees and disbursements of the solicitor assigned in respect of work reasonably undertaken by him in giving notice of appeal or of an application for leave to appeal, or applying for a case to be stated, and in matters preliminary thereto, being work done within the ordinary time for giving the notice or making the application for the case to be stated; and where counsel is also assigned the said sums may include the solicitor's costs in obtaining the counsel's opinion as to the appeal or application or matters connected therewith."
Amendment agreed to.
Clause, as amended, ordered to stand part of the Bill.
Bill reported with Amendments; as amended (in the Standing Committee and on re-committal), considered.
New Clause—(Secrecy)
(1) Subject to the next following subsection no information furnished for the purposes of Part I of this Act to the Law Society, or to any committee or person on their behalf, in connection with the case of a person seeking or receiving legal aid or advice shall be disclosed otherwise than—
(2) The foregoing subsection shall not prevent the disclosure of information for any purpose with the consent of the person in connection with whose case it was furnished and, where he did not furnish it himself, with that of the person or body of persons who did.
(3) A person who, in contravention of this section, discloses any information obtained by him when employed by or acting on behalf of the Law Society shall be liable on summary conviction to a fine not exceeding one hundred pounds.
(4) Proceedings for an offence under this section shall not be brought without the written consent of the Attorney-General.
(5) For the avoidance of doubt it is hereby declared that information furnished to counsel or a solicitor as such by or on behalf of a person seeking or receiving legal aid or advice is not information furnished to the Law Society or a person on their behalf.—[ The Attorney-General.]
Brought up, and read the First time.
I beg to move, "That the Clause be read a Second time."
This concerns secrecy as between the assisted litigant and those who may obtain information about his litigation. This was a matter which was discussed in Committee, and to which we have since given a good deal of consideration, because it presented difficulties of a professional kind, but at the same time concerned matters which were of considerable public importance. The new Clause imposes an obligation of secrecy on the Law Society, the members of the committee appointed in connection with the administration of the legal aid scheme, and upon any employees of the Law Society and of the committee who may, in the course of their employment, acquire information about a litigant's affairs; and it provides a penalty of £100 for a breach of that duty of secrecy. The new Clause does not in any way interfere with the privileged relationship which, under the ordinary rules of the legal pro- fession will exist between an assisted litigant and his solicitor or his counsel. If they commit any breach of the privilege in regard to these matters they will be dealt with by the ordinary professional bodies, the Inns of Court or the Disciplinary Committee of the Law Society, as for a grave breach of the relationship existing between them and their client. However, the members of the committee of the Law Society, and the employees who are working in the administration of the scheme, stand in a somewhat different position. They do not occupy the position of solicitor or counsel to the assisted litigant, and breaches of confidence by them would consequently not be within the ordinary rules of professional etiquette as administered by either branch of the profession. On the other hand, of course, a breach of confidence by them—by members of the committee, who will get to know something about the affairs of the assisted litigant, or by employees—would be a matter of a most serious kind affecting the interest of the public. We felt, therefore, that this was a matter which ought to be in the hands of the court. The present new Clause does not, however, very much modify the proposal which we previously considered upstairs. The fiat of the Attorney-General will be required before any prosecution can take place, and the penalty will no longer be one in which there is an alternative of imprisonment, but a fine of a maximum of £100. I commend the new Clause to the House, pointing out, as I have done, that it has no application at all to the ordinary relationship between the assisted litigant and his solicitor or his counsel, as the case may be.This new Clause is, in my opinion, very much better than the Clause or the Amendment which the right hon. and learned Gentleman sought to introduce into the Bill in Committee. As he has reminded us, the Bill made one liable to a fine of £100 or three months' imprisonment or both for the divulging of information. That Amendment was also open to the construction that it applied to a solicitor and counsel acting in a professional capacity, so different obligations would fall upon the solicitor and counsel according to whether they were acting for an ordinary client or a client under the Legal Aid scheme. Were they acting for an ordinary client, they would not be liable to criminal prosecution for divulging any information they obtained and would be dealt with by members of their own profession.
This new Clause makes it clear that, so far as lawyers are acting in a professional relationship, they shall not be liable to a criminal prosecution. I think that is a very desirable alteration. I agree with the right hon. and learned Gentleman that it is necessary to make some provision for those who are bound to become acquainted with the assisted litigant's affairs and do not stand in the usual professional relationship to that person. I myself am still inclined to the view that all that was necessary was to extend the area of professional privilege, bearing in mind that the local committees and area committees will be staffed by lawyers, and I am somewhat inclined to the view that it is not necessary to create a criminal offence at all. The right hon. and learned Gentleman has gone so far to meet us—and this Clause does contain the safeguard, and I think that it is a real safeguard—that there can be no prosecution without his consent. That, I think, makes it acceptable to us, and we on this side of the House do not wish to do anything to deter people from making use of this scheme. If it is thought that the possibility of a criminal prosecution will give them greater confidence that what they say will not be improperly disclosed, I agree that there is something to be said for making this a criminal offence, subject to the safeguards to which I have referred, although I myself doubt whether this Clause will ever be used, and, indeed, I hope that it will not be.There are two points to which I would draw attention. The first is on the question of professional privilege, and on that I heartedly agree with what the hon. and learned Member for Daventry (Mr. Manningham-Buller) has said, confirmed, of course, by what the Attorney-General has stated. Apparently, the desire is also to prevent disclosure, and that is an entirely different matter from a question of professional privilege. It is perfectly clear that where a party himself has supplied the information there is to be no disclosure except with his consent. What I would like the Attorney-General to make clear is this. Suppose it is not the party to the litigation who is making the disclosure of information, supposing it is not a litigant who is supplying the material; supposing his clerk or some agent, it may be his doctor, accountant, or even his wife, has given the information for the purpose of obtaining legal aid, and given it with his consent, is it to be said that this person may later disclose that information notwithstanding that the litigant himself does not give his consent?
I should like the Attorney-General to look at that point. It may be that I am not putting the correct construction upon it. What is the position supposing the information has been disclosed by his agent, clerk, the doctor attending him, his wife or his accountant? The information is obviously something which has been given through the litigant himself, but it may in fact have been given not with his consent and with his instructions by his clerk or by some other agent. Is the clerk to be allowed to disclose without the consent of his principal, or is the agent or the wife to be able to disclose in a similar way without consent?7.15 p.m.
The wording of the Clause is that in such a case the information would have been given on behalf of the litigant by his agent, and the litigant's consent would be required.
Question put, and agreed to.
Clause read a Second time, and added to the Bill.
Clause 2—(Financial Conditions Of Legal Aid)
I beg to move, in page 3, line 10, to leave out from "except," to the end of line 11, and to insert:
This is really a drafting Amendment. As worded, the Clause would have imposed an obligation on solicitors and counsel to make certain that their fees came from the legal aid fund. The new wording of this Amendment avoids placing that onus on them, but still makes it clear that they must not receive any payment from their client."such payment as is directed by this Part of this Act to be made out of the legal aid fund."
I should like to thank the right hon. and learned Gentleman for recognising by this Amendment the force of the point which I raised in Committee.
Amendment agreed to.
I beg to move, in page 3, line 15, after "order," to insert "or agreement."
I think it would be convenient to the House if we considered with this Amendment the Amendments in page 4, line 23; page 7, lines 30 and 31; and page 13, line 4, all of which deal with corresponding matters. I hope that the hon. and learned Gentleman will excuse me if I do not on every occasion in introducing an Amendment say that I am indebted to him or other hon. Members for raising these points upstairs. I shall at an appropriate stage express my indebtness to all hon. Members, including the hon. and learned Gentleman, for the great help they have given on this Bill. These Amendments are the results of points raised by one side or the other, and very often by the hon. and learned Gentleman, in Committee. This group of Amendments is intended to deal with the question of costs, where a case is settled instead of being fought out, and is made the subject of an order for costs. A case may sometimes be settled without any express provision having been made between the parties over the payment of costs, and, in such an event, under Clause 3 (4), the legal aid fund will have a claim on the amount, whatever it is, which is paid to the assisted litigant. Very often in settling cases it is convenient, first of all, to negotiate on damages, the defendant agreeing to pay £x, and when there has been an agreement on damages to negotiate with regard to the question of costs, the defendant agreeing to pay £y. In such a case, under this Amendment, the amount which has been specifically agreed to be paid for costs will be paid straight into the legal aid fund. That is the substance of what are, in a sense, drafting Amendments.Amendment agreed to.
I beg to move, in page 3, line 20, at the end, to insert:
It might be appropriate if at the same time we discuss the Amendment in line 29. We had a good deal of discussion upstairs as to the extent to which the unsuccessful assisted litigant should be protected from the ordinary liability of having to pay the whole of the costs. It is clear that if the unsuccessful assisted litigant were left without any protection at all, the risks—litigation being as it is an extremely uncertain matter—of having to pay the whole of the costs if he failed would be a very powerful deterrent to people going to law even if they were advised that they had quite a good case. That fact has been very much impressed upon us, as I think it was impressed upon the Rushcliffe Committee in regard to this matter. On the other hand, one must consider the position of the successful and unassisted defendant or the successful and unassisted litigant, whether he be plaintiff or defendant. After giving the matter very careful consideration in the light of the discussion which took place upstairs, we are of the view that if the payment of the balance of costs not awarded against the assisted and unsuccessful litigant were put as an obligation upon the State, it would result in most undesirable consequences. I do not want to enlarge upon what those consequences are, but this at least would, I think, be the consequence, and this is what we are advised by the profession. It would lead to considerable extravagance in litigation and often perhaps to cases which really ought to be settled not being disposed of in that way, but being fought out to the bitter end in full knowledge that the whole of the costs on each side were going to be found by the State. We think that the suggestion which was made, and which I confess attracted me a good deal at one time—that the State should pay the balance between the amount which was ordered against the assisted litigant and the actual taxed costs—would really be impracticable. On the other hand, we have decided to modify the protection given to the assisted litigant under the Bill as it stands by relaxing the provision which prevented his dwelling house and household effects being taken into account. The tribunal, under this Amendment, will be entitled to consider the dwelling house and the household effects in the same manner as those things might be considered in assessing the applicant's means when he was applying for legal aid. If it appears that he could raise money on his house—raise an appropriate sum of money towards the costs of the successful litigant—then he will be required to do so."having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute."
On a point of Order. Is it your intention, Mr. Speaker, to call the Amendment in my name in line 24, because it might affect the course of discussion on this Amendment?
I am afraid it is not, because it is out of Order. It might involve a charge. Therefore, I cannot call it.
These two Amendments really raise points of some importance. With regard to the first, it adopts phrasing which I think in substance was suggested in the course of our discussion in Committee. I should like to say that I do not propose to take up time in saying "Thank you" to the right hon. and learned Gentleman on every occasion on which he has met points raised from our side of the Committee, as he has done—and I am grateful to him—on a large number of occasions. The Amendment in line 20 is really one point where he has met us. I think that it makes a considerable improvement in the Bill. It goes some way to meeting the problem which is bound to arise where the assisted litigant is suing a person who is not receiving assistance but who is only just over the border-line from getting assistance. We know that under this scheme, if it works properly, the assisted litigant will contribute all except a portion of his capital and income to the cost of his own litigation. Therefore, it may well follow that if he fails in that litigation the court may conclude that it would be unreasonable to order him to pay to the successful unassisted litigant anything in the way of costs. Therefore, we have this problem, and it is a real dilemma; if we seek to place the liability for costs, for the full costs of the other side, on the assisted litigant if he fails, then in many cases that will be a very considerable deterrent to people from taking advantage of this scheme, which is designed for their assistance and benefit.
The other limb of the dilemma is that there is a possibility that the unassisted litigant who is just above the ceiling from getting assistance, will think that it is not worth while fighting proper cases to be fought, cases which he would like to fight and which indeed if he had been a bit poorer he would have had assistance in fighting. He might say to himself, "If I win this case, I shall still have my own costs to pay and that will impoverish me to the extent that it is not worth fighting this case although right is completely on my side." That is the dilemma that arises. I think that the right hon. and learned Gentleman has gone a long way towards the right solution—to leave it to the court to exercise its discretion as to what it is reasonable for the assisted but unsuccessful litigant to be ordered to pay in the way of costs, having regard to his means and to the conduct of the parties. I think I am right in saying, and I think that the right hon. and learned Gentleman will correct me if I am wrong, that in addition to this discretion which is left to the court, there is the intention of making regulations providing that the court can, if it thinks proper, revoke the legal aid certificate which would make the person who had received that certificate then liable for the full costs. I think that the right hon. and learned Gentleman made some statement to that effect in the course of the Committee stage. If that be so, and I take it that it is, it is, in my opinion, an important factor to be borne in mind. With reference to the second Amendment, that again brings the Bill more into line with the Report of the Rushcliffe Committee. I myself think it right that there should be that power to which the right hon. and learned Gentleman referred in the case of a man having a substantial freehold which is unencumbered and which might be charged for the purpose of providing some funds towards his costs of litigation. Therefore, so far as I am concerned, both these Amendments are acceptable.
I will not detain the House for long on these Amendments, because in relation to them I stand in the position of an unsuccessful unassisted litigant. I fought and lost this battle in the Committee almost alone. My hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) had signed the Rushcliffe Report which was inconsistent with my Amendments, and the right hon. and learned Gentleman the Attorney-General was sticking to the Bill, which was equally inconsistent with them. While I would be the first to recognise that the Amendments now proposed, go some way to meet the criticisms which I made then, I confess that I cannot express myself as wholly satisfied either with them or with the reasoning which has led the Government and the Opposition to find them sufficient. We must remember exactly what it is that we are discussing in relation to this matter. I think everybody is greed that one of the defects of this scheme is the very sharp line of demarcation which exists between those who are just within the limit for assistance and those who are just outside it.
I invite the House for a moment to consider what will be the result where a person who is just outside the limit for assistance is fortunate enough to prove that he was right all along—either that the claim of his more fortunate assisted opponent was false, and ought never to have been brought, or that the defence which his more fortunate and assisted opponent had put forward to his claim was bad, and the action ought never to have been resisted. In such circumstances the situation is this: despite the Amendments the unassisted litigant, who may be very little richer than the assisted litigant, will not have the protection he has at present, that is to say, he will not get his full party costs. He will have to find something—and it may be considerable where the claim was put forward in good faith—out of his own pocket. What is worse is that all the time he fights against his opponent, knowing that he was right all along, all the time he fights his case for justice, the whole power of the State and the Legal Aid Fund is trying to stop him. That is not an altogether very satisfactory position. 7.30 p.m. That is where I start in this matter. I have been a supporter of this scheme throughout, but when it becomes law what is known as maintenance will be extended. Maintaining other people's cases, as it is known, has been not only not considered always meritorious but, in certain cases, has been considered a crime against the State. By virtue of the Bill we are now nationalising maintenance on a gigantic scale. We are making matters a great deal worse by ensuring that one party may well have to pay—and in a great many cases will have to pay—a substantial sum towards his own costs in establishing his just rights. Let us see how that will affect the matter in practice: The man who is faced with a claim for, say, £200 or £300, put forward by an assisted litigant, says to himself, "I know this claim is false and ought not to be made. There has been misrepresentation of the facts, or a mistake in law by the State employed counsel. But it will cost me £200 to fight it, and even if I win I shall not be able, thanks to the Legal Aid and Advice Act, to get the money out of the other side. I will, therefore, pay something to settle the case." Alternatively, put the man in the position of the plaintiff, claiming £200 against the assisted litigant. He says, "I know I am owed this money, but if I am to establish my claim it will cost me all that and perhaps more to do it, and I shall never get the money out of the Legal Aid Fund, or out of the defendant, thanks to the Legal Aid and Advice Act." In both cases there is an injustice. The proposal made in Committee, which was rejected by the Attorney-General, was simply that the difference between what the man would have got but for the Bill and what he would get under the Bill in order to recoup his own expenses in establishing his rights, should be borne by the Legal Aid Fund. The Attorney-General rejected that suggestion on grounds which, I must say, I find somewhat unsatisfactory. First, he said that cases which ought to be settled will be fought. I wonder. I cannot myself see that of necessity the situation will be any different under the alternative proposal than it is at the moment, when two substantial people are fighting one another. Each knows that if he wins he will get his costs, such as they are, out of the other side. I do not think that is a bad thing; my own view about litigation, uncertain and unreasonable as it is as a pastime, is that so far as possible the wealth or poverty of the litigant should not be either an advantage or a disadvantage in law. I cannot see that under the alternative suggestion, with the State underwriting the difference, there would be any greater likelihood of cases being fought which ought to be settled than there is at the moment between two substantial litigants. It is said that in these circumstances both would know that the State would underwrite the expenses of both sides. I do not find that to be the case. Under the Bill the assisted litigant will have to make his own contribution to his own costs—certainly if he is unsuccessful. That may well be substantial, especially when he comes somewhere near the line of what does or does not constitute entitlement to assistance. The unassisted litigant will have to bear the whole costs of the litigation if he is unsuccessful, and I can testify that that fear has a very considerable deterrent effect in practice. For these reasons I regret to say that I still remain of the same opinion. However, as I explained when I began, I recognise that in this matter I am an unsuccessful unassisted litigant and, having recorded my opinion, I will say no more.I think the Amendment goes a long way to meet any such objection as the hon. Member for Oxford (Mr. Hogg) has just raised. One would think, listening to him, that there has been no such thing as Poor Persons' Rules. The same objection that has just been advanced by the hon. Member lies with equal force against the system as it works today. The only difference is that that system is being extended inasmuch as new categories can become assisted litigants. The hon. Member forgets that it will not be as easy as he thinks to impose upon the scheme.
The person who seeks legal advice must, by the provision in Clause 1 (6), show that he has reasonable grounds for being a party to the litigation. That is not merely a question of making a recommendation to the committee before whom he goes; he has to demonstrate that he has reasonable grounds, and it is clear that the committee will not allow him to become an assisted person unless he does that. He also has to go further; the particular circumstances of the case have to be taken into consideration. How we are to do more than is being sought to be done now, if we are to have legal aid at all, I do not know. It obviously must provide for the person whose circumstances are such that they require legal aid. Because it happens that certain people have got assistance is no reason in the world why other people, who are perfectly able to meet the costs of litigation, should find any advantage in that. There is only one point I would emphasise, and that is that a person ought not to be able to impose on another party some litigation which is obviously groundless, and in that way force him to incur expense. The only thing that can be done to avoid that is to take as careful steps as possible to prevent it happening. It seems to me that in the machinery of this Bill that is being done as far as it can be done. In addition, in my respectful submission, the Attorney-General's present Amendment goes a long way, even in circumstances of hardship, to visit the consequences of a person's needless act, should he rush into litigation when he has no grounds for doing so.Although I agree with neither, I must admit that I see more force in the arguments advanced in favour of the Amendment by the Attorney-General than in those advanced by the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels). I do not want to pursue the hon. and learned Member's particular line of argument, because that would take us into the operation of the system at present in force under the Poor Persons Act and the Legal Aid Advice Bill procedure, which is outside the scope of this particular Amendment.
I want to express a certain amount of support for the view advanced by my hon. Friend the Member for Oxford (Mr. Hogg). I find myself in a real difficulty like he does. I fully appreciate the force of the argument that if a successful unassisted litigant is enabled to recover his costs from the Legal Aid Fund then litigation is being financed at the expense of the taxpayer. Personally, I think that that is a bad principle, though why hon. Members opposite should not approve of it I fail to see, because it is exactly the same thing in law as the Government have done for medicine. Everyone in this country is entitled to a health service at the expense of the taxpayer and the proposal made by my hon. Friend the Member for Oxford is entirely analogous, and would enable substantially everyone to obtain, up to a certain limit, legal aid at the expense of the taxpayer. I differ from the Attorney-General in the remarks which he made about the: desirable possibility which he foresaw of litigation being brought to a conclusion, as a result of a settlement being forced upon a party through his fear of the costs involved. That is not a good principle, and does not help to establish the purity of justice or of the law. If we are proceeding upon a system in which that influence is intended to work upon the mind and pocket of litigants, we are detracting from the merits of our own judicial system. I feel we are embarking upon a system of that sort, and I hope that the Attorney-General will go back to the straight and narrow path and not take into account that there are advantages in such an argument. 7.45 p.m. On this actual question I cannot see that it can be right for the mind of a man to be influenced by the fear of the costs that he may have to pay as against one who has not so to do. Take the case of two neighbours, A and B. Both of them may be in practically identical circumstances, although one is five years older than the other and therefore five years more advanced in life. He may have through those five years a greater increment in his grade in the Civil Service, if they are in the Civil Service, as well as five years more savings. He is just outside the assistance limit, whereas his neighbour is just inside it. One has a case against the other. The first goes to the Legal Aid Committee, and is advised that prima facie he has a good case. The second goes to his own solicitor, and is similarly advised. What is, in fact, going to happen? In the assisted case the husband and wife are going to discuss it to see whether or not this law suit is going to be worth while. The factors which are going to guide them well are, first, that they have been advised they ought to win; secondly, the possible chance of what they are going to benefit by it; and, thirdly—and this is the all-important factor here in the average household—what they stand to lose. In the first household they know to a pretty exact degree their maximum liability and they can judge whether it will be great or small. In the other household, where the circumstances are practically identical except that the case is unassisted, the risk is far more difficult to assess, and the liability, which may be imposed upon the household if they lose, is certainly going to be considerably greater. But it is much more difficult for the householder himself or his solicitor to see at that time what the liability will be. It is that element of unknown risk which is going to influence the man who is unassisted to say to his wife, or vice versa, that it is not worth while for the sake of their home and their children to run that risk. They will say that it will be better to find out what the case can be settled for. "When we know for certainty how much it involves," they might say, "then we can decide whether or not to go on with it at all." Those are the actual facts as I see them which will influence the mind of two people. This fear of costs has become a factor in litigation, and is a matter which we ought to do everything to avoid. I appreciate that some steps have been taken by the right hon. and learned Gentleman in the Amendment he has moved, and they are steps in the right direction though to my mind they do not go far enough. I hope it may be possible in another place for further consideration to be given to this matter, so that these difficulties may be overcome.I could not agree more with the hon. Member for Chichester (Mr. Joynson-Hicks) in his views that fear of having to pay costs ought not to add to the difficulties of litigation of just causes. I do not think I follow him in his argument that there should be a significant difference between the position of assisted and unassisted litigants in assessing in advance their potential liability for costs. I should have thought that in practice they would be in substantially the same position. The assisted litigant will know that if he succeeds he will, at most, have to pay whatever contribution has been fixed at the time of his application, and that he will not even have to pay that, if he succeeds in recovering his costs from the unassisted opponent.
He will know at the worst that he will have to pay whatever contribution has been fixed in connection with his application for legal assistance, and in addition such sum—it may be the whole amount—of costs awarded against him by the tribunal, or such sum as the tribunal thinks reasonable that he should pay towards the costs of the successful defendant. That will be his position. He will not be able to assess exactly what the defendant's costs will be nor what proportion of their total he will be ordered to pay. He will know that he will have to pay a substantial amount. The unassisted litigant, on the other hand, will know that if he wins he will get from the court an order in respect of some part of his costs. He will be able to assess, with as much accuracy as I suppose he can assess now, whether he will recover those costs. Even now, when a person is sued in the courts he may find it very difficult to know whether or not, if he wins his case and gets an order for costs, he will be able to collect them. The unassisted litigant will be in the same position in regard to that matter. He will know that if he loses the litigation he will be in the same position as if his opponent were not assisted at all, because he will have to pay the whole of the costs. I do not think there is much difference between them in that respect. This is a most difficult problem. I agree with the hon. Member for Oxford (Mr. Hogg) that it is so. He says that he is of the same opinion still. I wish I could convince him against his will. It really is a most difficult dilemma. On one point I think that the hon. Member for Oxford did not state with complete accuracy the position which arises in practice. In practice in the great majority of cases—not, of course, in all—we find that on the one side there is a comparatively wealthy party, supported by an insurance company, a newspaper, or a big company. On the other side there is a party less wealthy. The Rushcliffe Committee realised, as I think we realised upstairs and as I hope the House will realise, that the would-be litigant who was not wealthy but was not penniless, the man who had saved up £200 or £300 and perhaps had a house subject to a mortgage, even if assisted in regard to his own costs under the scheme, would still be deterred from entering upon litigation, even if advised that he had a good case, by the risk that if he lost he might be sold up. That risk does not apply to a man who is penniless. He can pursue his litigation without regard to the consequences to himself. He knows that if he loses he will not be any worse off. A man who, by thrift, has saved a little money and who is likely to be compelled to pay his costs if he fails in his action, is often deterred in pursuing his action, not because of his own costs but because of the risks of the law and the danger that if the law turns out to be against him he may have to pay the costs of the other side. It was the fact that that kind of risk operates in practice and is a very serious deterrent, that led the Rushcliffe Committee, and led us, to take the view that some protection must be given to the assisted litigant. I agree with my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) that we are really only expanding somewhat further the principle that has been recognised under the Poor Persons Rules. We are expanding it further in the sense that we are applying it now to what will no doubt be a vast number of cases, whereas in the past it has applied in practice to very few. We are not expanding it to the same extent as it exists already in those very few cases. In those very few cases, virtually no costs can be ordered against an assisted party. Under the provisions of the Bill the amount of costs which may be ordered against an assisted but unsuccessful litigant can be very substantial.I think the Attorney-General will agree that, in the existing situation, against those who get poor persons' assistance an order for costs on anything like a High Court scale would be impossible.
That is quite true, but that does not make the injustice, if injustice it be, to the successful defendant any the less. If aid were not given to the poor person in this case, the wealthy defendant would not be exposed to litigation and no question of costs would arise. When aid is given under the Poor Persons Rules and the plaintiff fails, the successful defendant is unable to recover any part of his costs from his opponent and has to pay the whole of his own costs. It really is the application of a principle, the necessity for which has been recognised in our procedure for a very long time. I would only add that I did not, I am afraid, deal with this matter, under the Amendment which I am proposing in page 3, line 20, when I moved the Amendments all together.
The position now will be that the assisted litigant will have to satisfy the tribunal as to his means. He will have to go into the witness box and he will be subject to cross-examination as to his means. The tribunal will consider what his means are and how far he has acted honestly and reasonably in bringing the claim, and the general conduct of the litigation. I commend the Bill to the House. Faced with this troublesome dilemma we think that on the whole that we have adopted the solution which will result, I do not say in no injustice, but in the least injustice.Amendment agreed to.
Further Amendments made: In page 3, line 28, leave out "and."
In line 29, after "prescribed," insert:
"and except as aforesaid."—[The Attorney-General.]
Clause 3 — (Contributions From Assisted Person And Charge On Property Recovered)
Amendment made: In page 4, line 23, after "order," insert "or agreement."—[ The Attorney-General.]
Clause 6—(Solicitors And Counsel)
I beg to move, in page 6, line 32, at the end, to insert:
"(3) Where a barrister or solicitor is aggrieved by any decision excluding him (whether permanently or temporarily) from the panels or any of them, he may appeal against the decision to the High Court and the High Court (whose decision shall be final) may confirm or quash the decision appealed against or may substitute such decision as the court thinks fit.
The House knows that it is intended, as part of the legal aid and advice scheme, that tribunals should be established for dealing with complaints which may be made against the conduct of solicitors or banisters who are members of the panels to be established under Clause 6 and who act improperly in one way or another. We had some considerable discussion of this matter upstairs. I then gave an assurance that an appropriate appellate tribunal would be established for hearing appeals from those bodies. At the same time, appropriate steps would be taken administratively to ensure that the complaints tribunals, as we call them, would not deal with cases which were more proper to be dealt with under the existing disciplinary machinery of the professions, either by the Inns of Court or by the Disciplinary Committee of the Law Society. In regard to that matter, steps have been taken or will be taken to ensure that the complaints tribunals will not deal with cases which can and will be heard by the Benchers or by the Disciplinary Committee, and this Amendment is designed to create a right of appeal to the High Court. 8.0 p.m. The High Court, under the existing law, is also the appellate tribunal from the existing disciplinary committees, that is to say, from the Benchers or from the Disciplinary Committee of the Law Society. Consequently, that appellate tribunal will be able to adminster uniform rules and principles in dealing with these cases, and all appeals, whether from the existing disciplinary bodies of the profession or from the complaints committee, will come up eventually to the High Court which will have jurisdiction in regard to them all. I need only add that the Inns of Court, the Bar Council, the Law Society, and also the Lord Chief Justice, have been consulted in regard to these proposals, and I am authorised to say that they think them appropriate as far as their interest is concerned.Provision shall be made by rules of court for regulating appeals to the High Court under this subsection, and those rules shall provide for limiting the time within which appeals may be brought."
We are grateful to the right hon. and learned Gentleman for meeting us on this point on the lines that were suggested in the Committee. I do not know whether the Attorney-General has declared his interest on this occasion but, if he has not, he and I ought to do so, and I shall do it on his behalf as well as on my own because as Benchers of an Inn of Court we are concerned with the matter of this Amendment. While disclosing that interest, may I say that I am grateful, and also assure the House that I believe it will be an excellent thing that those matters which are proper for the ordinary disciplinary procedure—whether it be at the Bar where the matter goes to the Benchers, or in the solicitor's branch of the profession where it goes to the Statutory Committee—should be kept in the hands of these bodies, and we welcome the assurance of the right hon. and learned Gentleman on that point.
On the other group of cases, those which will deal with points which would not in the ordinary way be the subject of complaint, again I think that letting the different tribunals meet in the appellate tribunal of the High Court is the most satisfactory solution that could be found. As the right hon. and learned Gentleman said, this was discussed for some time upstairs and I have no desire to detain the House except again to thank the right hon. and learned Gentleman for meeting us on this point.Amendment agreed to.
Further Amendments made: In page 7, line 30, after "aid," insert
"or of an agreement for costs so made which provides for taxation."
In line 31, after "order," insert "or agreement."—[ The Attorney-General.]
Clause 8—(Functions Of Law Society)
I beg to move, in page 9, line 22, after "Society," to insert "but who are barristers or solicitors."
This is a drafting Amendment which makes it clear that the persons to be appointed to the committees administering legal aid will be qualified barristers or solicitors.I cannot agree with my right hon. and learned Friend that this is a drafting Amendment. Upstairs we discussed some other aspects of this subject and although as a non-lawyer I speak with bated breath on a Bill of this kind, I feel that the point of view of the non-lawyer ought to be put. In order to make myself clear, I will read the original subsection:
If my memory serves me aright, my hon. and learned Friend the Member for North Aberdeen (Mr. Hector Hughes) moved an Amendment upstairs to delete the word "may" and to insert the word "shall." What we had in mind upstairs would be completely ruled out if the Amendment just moved were accepted. I suggest that while the subsection stands as it is, there is an opportunity for people who are not lawyers to be represented on those committees, but this Amendment would mean that only lawyers can sit on committees which are to give legal advice and assistance to prospective litigants. I want briefly to express the view which some of us expressed upstairs, that it would be desirable to have on these committees people who were not members of the profession in either branch. I envisage people who have had experience of the administration of the law in a magisterial capacity. I envisage people who are clerks to local justices who may not be lawyers by examination. Amongst those people are men and women of tremendous experience and knowledge in the administration of the law, and they should be represented on the committees. Good as this Bill is, it is becoming a sew-up between two branches of the legal profession. When it is a question of people coming for aid and advice in times of distress and difficulty, it would be advantageous to have someone on the committee who understood things from more than a purely legal point of view. If this Amendment is carried, all that will be left to the non-lawyer is what is provided in Clause 13, namely, the establishment of an advisory committee which will be appointed ultimately by the Lord Chancellor. This would probably mean that in the whole of our land only one or two people would have any part in the administration of this Measure who are not connected directly with the legal profession. Whilst I know that at this stage of the Bill it is difficult to persuade my right hon. and learned Friend to provide for what I am now advocating, or to get him to withdraw his Amendment, and whilst I would never think of asking the House to divide on the Report stage on such a matter, I would remind you, Sir, that we had a Division on it in the Committee. I sincerely hope that before this Bill is disposed of—in another place—perhaps something will be done to ensure that people who are not lawyers may take a fairly prominent part in the administration of this important Measure."Any committee set up as aforesaid may include persons who are not members of the Law Society.…"
I think that perhaps I did mislead the House a little in saying that this is a drafting Amendment. It is, perhaps, a little more than that, in the sense that it makes the Bill clearly embody what was at all times to the knowledge of the House and the Committee upstairs the intention of the Bill. It is perhaps a little doubtful whether the Clause as drafted fulfilled that intention.
The intention of the Bill—and this was made clear on Second Reading and in Committee—was that these committees, which are to be established to operate the legal aid scheme, should be professional committees. I agree with my hon. Friend the Member for West Salford (Mr. Royle) that it is most desirable that we should have on these committees, to use his phrase, "people who understand things." It is always desirable to have on committees people who understand things, and the kind of people who understand particular things depends on the things to be understood. These committees have to understand legal matters; that is all. They are not concerned with matters of a non-legal character. They are concerned simply with the question whether or not an applicant who comes before them for assistance has a prima facie case which ought to be litigated. The committee which decides that will consist of three, or at the most five, people; they will deal with it quite informally, and as lawyers who are being consulted by a client. When I want legal advice, I do not go to lay persons. I go to a solicitor, and I ask him to guide me and assist me with his great knowledge. If he insisted before giving me his advice on calling in some social worker or some outside person I should probably be exceedingly annoyed about it. I see no reason why a person who is unable to employ his own solicitor and pay for him, but has to seek to take legal advice under the provisions of this scheme, should have lay people inflicted upon him when he wants to obtain legal advice and assistance. Nor do I see any possible way in which lay members could assist on these committees. These committees will have to decide whether the would-be litigant has a good case, whether he has got an action for negligence against a motorist, whether he has got a right of action against a shopkeeper, or whether he has got some other form of action. What possible assistance would it be to him or to the working of this scheme to have a motorist or a shopkeeper or a local councillor sitting on committees whose sole function was to advise on the legal rights of the would-be litigant? Accordingly, while appreciating the point which has been made with, if I may say so, great persistence by my hon. Friend the Member for West Salford, we must maintain the position that these committees are legal committees which will deal with litigants or would-be litigants in exactly the same way as their own lawyers would and on which it would be quite inappropriate to introduce lay representation.Amendment agreed to.
I beg to move, in page 9, line 31, at the end, to insert:
This, I think, is a drafting Amendment. It makes it clear that the committee to make or to vary the legal aid scheme shall be set up by the Law Society under the existing powers of the Solicitors Act."of the Council of the Law Society."
Amendment agreed to.
I beg to move, in page 9, line 32, to leave out from "shall," to the end of line 33, and to insert:
This Amendment gives effect to the arrangement which hag been reached between the Bar Council and the Law Society that three members of the Bar shall be appointed to the scheme-making committee, and it emphasises the joint responsibility of both branches of the profession in connection with this matter."(except during any vacancy) include not less than three persons nominated by the General Council of the Bar and a person nominated by the Lord Chancellor."
8.15 p.m.
I should like to ask the Attorney-General a question. I do not quite follow how this will work out in practice. As I read the Clause as it will finally be amended, it will state:
and now I paraphrase—include not less than three members of the Bar Council. I do not quite follow how a committee consisting of members of the Council of the Law Society can include persons on the other side of the profession, even though nominated by the Lord Chancellor. I feel that I have probably misread the matter somewhere, but if I have, possibly others will do so as well."The functions of the Law Society in making or varying any scheme under this section shall be performed by a committee whose members shall"—
Before we part with this Amendment, I should very much like to congratulate my right hon. and learned Friend and the hon. and learned Member for Daventry (Mr. Manningham-Buller) on having solved their difficulties as to whether the figures should be three or two in this case.
If my hon. Friend the Member for West Salford (Mr. Royle) agrees, may I ask the Attorney-General if he would consider making a change so that this provision would read:
That would be a much more democratic body."not less than three persons nominated by the General Council of the Trades Union Congress"?
Amendment agreed to.
I beg to move, in page 10, line 9, after "operation," to insert "and finance."
Perhaps at the same time I may deal with the two Amendments in page 14, lines 7 and 8. These all deal with similar matters. They are designed to carry out an undertaking which I gave in Committee that the annual report which the Law Society will make to the Lord Chancellor, and which has to be laid before Parliament, shall be accompanied, when it is laid, by the report which the Lord Chancellor's Advisory Committee will make to him upon the Law Society's report, and also that it shall deal with the financial position of the scheme so that Parliament will be able to discuss the whole matter of the working of the scheme and will have a proper appreciation of how the scheme is operating in regard to finances and other matters without waiting for the report of the Comptroller and Auditor-General on the purely financial aspects.I should like to express my thanks to the right hon. and learned Gentleman for tabling these Amendments. I think they meet a rather important point, and I hope that perhaps in other instances this procedure may serve as a precedent. It is useful to get before Parliament a report coupled with a financial statement earlier than we often do now with regard to some other matters about which, if I said anything now, I should certainly be out of Order.
Amendment agreed to.
Clause 12—(Regulations)
Amendment made: In page 13, line 4, after "order," insert "or agreement."—[ The Attorney-General.]
I beg to move in page 13, line 22, at the end, to insert:
This is in substance a drafting Amendment to deal with the point about which we had considerable discussion in Committee upstairs. I think it follows the general sense of the Committee, and it clarifies the position as it arises under the Clause. It makes it clear that before refusing legal aid to an applicant on the ground that facilities are available to him, the committee has to be satisfied that there is a reasonable expectation of receiving financial or other help from a body of which he is a member."or has a reasonable expectation of receiving financial or other help from a body of which he is a member."
Amendment agreed to.
Clause 13—(Advisory Committee)
I beg to move, in page 13, line 46, to leave out "legal procedure," and to insert "the work of the courts."
This Amendment follows the exact wording of the Rushcliffe recommendations, and makes it clear that people with knowledge of the courts, although they are not lawyers, will be eligible to advise on the Advisory Committee—such as social workers, magistrates and persons of that kind.Amendment agreed to.
Further Amendments made: In page 14, line 7, after "operation," insert "and finance."
In line 8, at end, insert:
"and when the committee have considered it shall lay before each House of Parliament a copy of it and of any comments or recommendations made by the committee."—[The Attorney-General.]
Clause 14—(Offences)
I beg to move, in page 14, line 18, to leave out "three," and to insert "four."
The purpose of this Amendment is to enable persons who are charged with offences under this Clause to go to trial by jury if they so desire.Amendment agreed to.
I beg to move, in page 14, line 18, to leave out from "both," to the end of line 19.
I suggest that it would be to the convenience of the Committee if we also discussed the Amendment, in line 25 at the end, to insert:Under this Clause, a person who wilfully makes a false statement is liable to fine or imprisonment by the court before which he is tried in respect of that statement. In Committee I accepted, perhaps too hastily, an Amendment providing that in addition to that criminal penalty such a person should repay to the legal aid fund the whole amount of the net liability which that fund had occurred on his account, and that amount should be recoverable in the same court before which the man had been convicted of making the false statement. On consideration, we came to the conclusion that that was too harsh a penalty for the circumstances envisaged here. I think that the hon. and learned Member for Daventry (Mr. Manningham-Buller), who moved the Amendment in Committee, will probably agree with the view we have taken about the matter. The Clause as it stands, following the Amendment in Committee, might result in this: that a man may have to repay to the legal aid fund moneys it had expended or expenses it had incurred on his behalf quite irrespective of the false statement, and, indeed, quite possibly before the false statement had ever been made. An appropriate principle it seems to me is the principle which applies ordinarily in this field of law, that the person who makes a false and fraudulent statement should pay the damages which that statement caused to someone else, which in this case is the legal aid fund. It may be that a false statement, although it would be an offence under this Clause, would not cause damage to the legal aid fund and would not lead the Law Society to take any action, or incur any expenses, which it would not otherwise have taken. In such a case, to require the assisted litigant to repay the whole amount of the liability would really be an undisguised punishment imposed over and above the criminal punishment provided by the Clause. Accordingly, we thought it proper to table the present Amendment, which will substitute what is in fact the ordinary rule where false or fraudulent statements are made; that if the legal aid fund incurs any loss by reason of the false statement which the assisted litigant has made, then it may recover it and the court will determine how much the amount of that loss following upon the false statement actually is. In order to ensure the matter may be dealt with expeditiously and cheaply, because in this case, ex hypothesi, the person assisted will have no means because he will have been an assisted litigant, we have proposed the matter should be within the jurisdiction of the county court. In most cases it would in any event fall within the jurisdiction of the county court, but there may be some cases where costs have been incurred which would otherwise just fall outside the county court's jurisdiction and would have to go to a higher court. We thought it better for all these cases to go to the county court so that they can be dealt with at the minimum expense and as quickly as may be."(3) A county court shall have jurisdiction to hear and determine any action brought to recover the loss sustained by the legal aid fund by reason of the failure of a person seeking or receiving legal aid or advice to comply with any such regulations as aforesaid, or by reason of a false statement or false representation made by such a person in furnishing information for the purposes of this Part of this Act, notwithstanding that the claim in the action is for a greater amount than that allowed under section forty of the County Courts Act, 1934."
I think that this Amendment is an improvement to the Bill, although I must admit that the words we are now moving to leave out are the words I moved to put in during the Committee stage. I think the Committee accepted the principle behind the words that now appear in the Bill which we are going to leave out, and that in substance this Amendment says in greater length and with greater accuracy what it was we were trying to achieve by the Amendment in Committee.
I have only two points to raise in regard to the Amendment, and that is that, in addition to giving a right of recovery for any loss that may fall on the legal aid fund by reason of a false statement or false representation made by the person seeking or who has obtained legal aid, there is a right of recovery of any loss sustained by reason of failure to comply with any regulations as aforesaid. I am not quite certain whether the wording of the first part of the Amendment is adequate to give the Law Society, who presumably will be the plaintiffs, a right of action in respect of a breach of any one of those regulations. I do not think there is any need to say more on that point, because it is obviously the intention that the Law Society should have that right of action. I merely refer to it so that the right hon. and learned Gentleman may have an opportunity of considering the wording to see whether the point is adequately covered. I recognise the force of the argument for saying that the county court should have jurisdiction in this matter even though the amount may exceed the amount within its normal jurisdiction. There are, of course, arguments in favour of adopting that in this particular instance, although I would not be inclined to assume that the assisted litigant who has obtained legal aid by false representation may, because he has received assistance, be impoverished. The false statement may be one about his means. He may have possessed considerable wealth and the loss sustained by the legal aid fund may be due to his having made false representation in regard to his means. I think it would be convenient if this matter should be determined in the county court, and for these reasons I support both these Amendments.Amendment agreed to.
Further Amendment made: In page 14, line 25, at end, insert:
"(3) A county court shall have jurisdiction to hear and determine any action brought to recover the loss sustained by the legal aid fund by reason of the failure of a person seeking or receiving legal aid or advice to comply with any such regulation as aforesaid, or by reason of a false statement or false representation made by such a person in furnishing information for the purposes of this Part of this Act, notwithstanding that the claim in the action is for a greater amount than that allowed under section forty of the County Courts Act, 1934."—[The Attorney-General.
Clause 17—(Right To Free Legal Aid)
8.30 p.m.
I beg to move, in page 17, line 38, at the end, to insert:
"(3) Before a person is granted free legal aid under any of the Acts mentioned in subsection (1) of this section he may be required to furnish a written statement in the prescribed form about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid, and if a person in furnishing such a written statement as foresaid (whether required so to do or not) knowingly makes any false statement or false representation he shall be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding four months or to both.
The procedure for applying for legal aid in the criminal courts is somewhat different from that which will be introduced by this Bill in connection with civil proceedings and there will not be the same opportunity for any examination as to the means of the applicant for legal assistance. In Committee the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) suggested for that reason that there ought to be a statutory declaration as to the means of the applicant. We felt that there might be delays and difficulties of one kind and another in having a statutory declaration in every case, but this Amendment will enable the Secretary of State to prescribe a form on which applications for legal aid will have to be made under a penalty for false statements. That form will contain a number of questions in a simple form likely to be readily answerable by the kind of persons who may have to fill it in so as to give information about their means and so forth, and on receipt of that form it will in the discretion of the justices whether to have further inquiry made. Indeed, it will be in the discretion of the justices whether or not to insist upon the form itself being filled in. They may be satisfied without having the form filled in. They may have other information as to the man's means and may be able to grant legal aid without it, but they will have the right to ask for the form and to pursue inquiries under it.The form for the purpose of this subsection shall be prescribed by the Secretary of State by regulations to be made by statutory instrument."
I want to say "Thank you" to the right hon. and learned Gentleman. This, again, is an important Amendment, and it should be effective in preventing to a large extent and, I hope, completely, abuse of the system with regard to legal aid in the criminal courts of the country.
I want to ask the Attorney-General a question about this. It applies also to an Amendment we recently discussed. If a person signs a statement and makes a false return in it he can be prosecuted but probably the prosecution will take place after he has received legal aid for the case in respect of which he applied for assistance. Between the time of the trial of that case and the discovery of the fraud, his circumstances may have changed and his fortunes may have fallen, so that when he is being prosecuted for signing a false statement he may be in a position to sign a correct statement and become eligible for legal aid. In that case, will he receive legal aid in connection with the prosecution for fraudulently getting legal aid?
I admire, as I always do, the ingenuity and imagination of the hon. Member for West Fife (Mr. Gallacher). In that case I think it would be possible for the man to apply for legal aid. Whether he got it or not would be in the discretion of the court.
Amendment agreed to.
Clause 21—(Cost Of Legal Aid In Magistrates' Courts)
I beg to move, in page 20, line 6, "after "taxed," to insert "or assessed."
This is really a drafting Amendment. There will be a number of cases in which the costs are very small and in which, consequently, it would be inappropriate to go to the expense and complication of having a formal taxation by a taxing officer. Consequently the Law Society must have power to make arrangements for ascertaining the cost in such a case without the formality of a taxation. An Amendment we have done to the Third Schedule provides what arrangements should be made, power being given to the Lord Chancellor to deal with the matter by regulation.Amendment agreed to.
Third Schedule—(Remuneration Of Persons Giving Legal Aid Under Part I)
I beg to move, in page 26, line 30, at the end, to add:
This Amendment is associated with that to Clause 21 in page 20, line 6, and is consequential. It enables the Lord Chancellor to make regulations in the terms of the Amendment."5. Regulations may provide that for the purposes of this Schedule, instead of costs being taxed in the ordinary way,—(a) they shall be taxed by the prescribed person (whether an officer of a court or not); or (b) the amount of the costs shall be fixed (whether by an officer of a court or not) by an assessment made without a taxation but with a view to allowing as nearly as may be the same amount as on a taxation."
Amendment agreed to.
Motion made, and Question proposed, "That the Bill be now read the Third time."—[ King's Consent signified.]
8.36 p.m.
Before we finally part with the Bill and speed it on its way to another place, there are a few comments I should like to make about it. It has, perhaps, not been a very exciting Bill. Its passage through this House has inevitably been characterised by a great many speeches by lawyers, upon whom the lay Members look with healthy suspicion; and it has of necessity involved a good deal of rather technical and legal discussion.
We ought not to underrate the considerable importance of the Bill. It is true that it has not given rise to any of those scenes, which, judging from the headlines, some people think occupy the whole of our Parliamentary time. It has not necessitated the use of the Guillotine or even the Closure, which only goes to show how well we can conduct our legislating activities in this House when hon. Members opposite accept reasonably the proposals, always beneficent, which are put forward by the Government. Judged by any proper standard it really is an important Bill, which accomplishes a much-needed and significant social reform and which is worthy to take its place with the great code of social legislation which has been passed by this Parliament. We attach—and rightly attach—great importance to the rule of law, to the high regard in which the courts and judges are held, and to the fact, particularly after the passing of the Crown Proceedings Act, that the little man can not only have recourse to the courts for the just settlement of his private disputes as between himself and some other citizen, but that he can go to the courts and appear before His Majesty's judges on complete equality with the highest officers and Departments of State. I say that we attach great importance, and rightly so, to these principles, but too often in the past these things have for a large section of the community been theoretical advantages rather than real ones. The cost of litigation, the inability of the poor—and, indeed, of the not so poor—to face the risks and expenses that litigation involves, have in practice, as I think we recognise on all sides of the House, and as was recognised by the Rushcliffe Committee, of which the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) was so distinguished a member, made the courts and the law of the country largely inaccessible to a very large part of the community. This Bill, without in any way encroaching on the freedom and independence of both sections of the legal profession, will go a long way to removing that reproach, as reproach it was, which has previously been made against our system. I say it will go a long way; it will not go the whole way. Later on, by one method or another, I hope we may be able to do more to make the courts readily accessible, and inexpensively accessible, to everybody. I hope, for instance, when the Committee now presided over by Lord Justice Evershed has made its Report, we shall find means of cheapening and simplifying the procedure of the courts so that the burden imposed upon those—particularly, perhaps, members of the middle classes—who will still have to pay their own legal expenses when they engage in litigation will be diminished. In the meantime, we have gone a considerable step forward and made a very significant improvement in our legal arrangements; we have ensured that those who could not bear the burden of legal expenses at all would at any rate be able to obtain assistance. I think it is correct—there have been figures published about this—that the average wages earned now amount to something of the order of £6 10s. or £6 14s. a week. Such a man, earning that average wage, married and entitled to the various disregards and allowances which are taken into account under this Bill, will now, in a proper case, receive free legal advice and free legal aid. Above that, on a contributory basis, people with a gross income amounting to as much as £700, or perhaps £800, will be able to receive some assistance from the State in the conduct of their litigation. This is a Bill which will bring benefit, improved benefit, to the great majority of the community and will make the theory, that the doors of the courts are open to everyone, rich and poor alike, a greater reality than it has been in the past. Now that the Bill leaves us, after the various Amendments made to it upstairs and here, I think it is a good Bill. It is by no means the last word. The last statute—and I mean not the first, but the last statute—which purported to deal in a general way with the provision of legal aid to the poor was passed in the year 1494. I do not hold out any such expectation of longevity for the present Bill. It may be that before very long we shall find means, either by regulation or amendment, of improving it, because, of course, it is in many respects and of necessity an experimental Measure. It may very easily be that when we have had some more experience of its operation we shall be able to improve upon it. But, allowing for that possibility, I think we can say with some confidence that this Bill, based as it was on the recommendations of the Rushcliffe Committee, will be found by experience to provide at least a framework which will stand the test of time and lead to a system of legal aid and advice unequalled in any other country in the world. Before we part with the Bill I should like to express my appreciation of the great assistance which we have had from hon. Members on both sides of the House, and in particular from the hon. and learned Member for Daventry, who brought to our assistance, in discussing the details of the Bill, the great knowledge which he acquired on the Rushcliffe Committee. There can be no doubt that in accepting the heavy responsibilities which are cast upon them by this Bill, the Law Society and the Bar Council, working as I hope and am sure they will, in very close and harmonious co-operation, are undertaking a task of great importance and difficulty. Fortunately the Law Society have already had great experience in problems of this kind in connection with the operation of the existing schemes under the poor persons' rules. I take the opportunity of saying that it is very gratifying to observe from the report which the Law Society published a day or two ago on the operation of the existing poor persons' procedure that the work under these rules is well up-to-date. The statistics which have been published in the report illustrate that the work of the London Committee is completely up-to-date, and that even in the Provinces, where there is a substantial increase in the number of applications which have been made, the number of cases pending at the end of the year was fewer than it had been at any time for several years past. The Law Society are making every effort to ensure that there may be no arrears of cases anywhere in the country so that when the new legal aid scheme comes into operation the fewest possible number of cases will have to be transferred from the old to the new procedure. The Law Society are, as I am sure the House will agree, much to be congratulated on the way in which they conducted and discharged their duties under the existing rules. I should like to take the opportunity on my own behalf, and on behalf of His Majesty's Government, and I am sure on behalf of the whole House, of expressing our appreciation to the Law Society, and also to the members of the Bar, for all the work they have done both in the operation of the existing poor person's procedure and in the preparation of this great new scheme. I feel confident that we can entrust this great new scheme to the legal profession with full confi- dence that they will administer it wisely, efficiently and successfully.8.48 p.m.
I should like to begin by thanking the Attorney-General for the kind things which he said about me and about such assistance as I have been able to give in making this a better Bill. I should like to express my thanks to him for his receptiveness to the ideas that emanated so frequently from this side of the House. If I might make a rejoinder to one of his other observations, I would say that Bills would leave this House very much better and vastly improved if the Government would always adopt such a receptive attitude to our suggestions.
I should like to make a few observations on the Third Reading of this Bill because it was shortly after my election to this House that I was asked to become a member of the Rushcliffe Committee. That was an interesting and enjoyable experience, although it entailed many hours of hard work. That was in 1944. Five years have elapsed, and those of us who served on that Committee now have the satisfaction of knowing that our work was not in vain—it is so largely embodied in this Bill which, unless any unforeseen event occurs in the immediate future, has a very good prospect of reaching the Statute Book. That is not by any means the experience of every committee. Reports are so often pigeonholed and forgotten. The fact that that has not been the fate of the Rushcliffe Committee's Report indicates two things; first, the merit of the report, and secondly the need for the provision of legal aid. We all agree as to the necessity for legal aid for people whose means are not sufficient to enable them to defend themselves in proper cases, or to commence litigation for the recovery of damages as compensation for serious injury. But any scheme for legal aid should not, of course, encourage quarrelsomeness or bickering, or indeed facilitate the ventilation of every petty squabble in the courts. It would not be in the public interest that legal aid given at the expense of the taxpayer, should stimulate a vast increase of trumpery litigation; or indeed that it should be used as a method of extortion from a wealthy and unassisted litigant. In my belief this Bill avoids those dangers and contains adequate safeguards, both in the fact that the assisted litigant will have to make a contribution from his own income and capital, and from the fact that he has to get the approval of the local committee as to the reasonableness of his conduct in defending or commencing litigation before he receives legal assistance. I agree with the right hon. and learned Gentleman that a great burden will be thrown upon those who staff the local committees. As soon as this scheme commences they will probably get a large number of applications for legal aid which they will have to consider with great care. I believe it is a burden that the lawyers on those committees will shoulder willingly. We have often been the subject of ridicule, but lawyers of both branches have been in the past, and are now, ready to assist those in difficulties. I do not think that any fair-minded person can say that this is a Bill for the benefit of lawyers for it should not be forgotten that in addition to the work they will have to do on those committees, they will be undertaking legal work at considerably less than what is regarded as a reasonable remuneration for the work they do. This Bill had a favourable reception on Second Reading, and I agree with the right hon. and learned Gentleman that it has been much improved in Committee and today. I do not suppose for one moment that this is the last word. We may experience further difficulties which we have not anticipated would arise. But in my opinion this is a good Bill; it is as good as we can make it. At least we have the satisfaction of knowing that it is not leaving this House with a large part unconsidered and undiscussed. I welcome this departure of His Majesty's Government from the precedent which they created in respect of other major Bills, and I hope that it will be followed more frequently in the future. I regret that legal aid is not at present to be available before tribunals, which are numerous and varied in character and have a very great bearing on the life of the ordinary individual. I regret also that legal aid is not to be immediately available in cases of defamation. I appreciate the reasons why the scheme has not been extended to cover—
The hon. and learned Member cannot discuss in a Third Reading speech what it would be desirable to include in the Bill, however much he may think so.
I was discussing what the contents of the Bill show to be excluded.
I was aware of that, but the hon. and learned Member must discuss only what is in the Bill; I think he knows that.
I thought I was keeping within the rules of Order by discussing the First Schedule which refers to excluded causes of action and specifically excludes them. I was regretting their exclusion. I recognise the reasons why that is done, but I hope the time will soon come when instead of being, excluded, they can be included.
This Bill is not just the fruit of the efforts of the Rushcliffe Committee. Many other bodies have from the beginning taken a great part in working out this scheme. The numerous bodies which gave evidence before that Committee obviously took a very great deal of trouble. In particular, I should like to join with the Attorney-General in the tribute he paid to the Law Society, to the Bar Council and to the members of the Bar. This is no party Measure. It would be wrong for any single party to seek to claim sole credit for it. I should also pay a tribute to Lord Simon who appointed the Rushcliffe Committee. I conclude by saying that if it had not been for the disaster which in my view overcame this country in 1945, we should have had the pleasure of introducing this Bill. In my belief, this Bill will go far to prevent the suffering of injustice through lack of means. It has been welcomed in all quarters of this House. It will be welcomed throughout the country. If all the Measures of this Government brought equal benefit to the people, then indeed they might win the next Election.8.56 p.m.
Because of the other Business which we must get through tonight, I do not intend to delay the House for more than a few minutes, but I think it would be a pity if nobody speeded the Bill on its way except the Attorney- General and other Members who are also members of the legal profession. One or two of us have had some part to play in other stages of the Bill, although with our Amendments we have not met with the success which has been achieved by the hon. and learned Member for Daventry (Mr. Manningham-Buller). We who are not lawyers but who have been associated with this Measure wish it well. We regard it, in principle, as an excellent Bill. We feel that it will be of tremendous assistance to vast numbers of men and women. Because of that, as it goes forward to another place, all of us say that we sincerely hope that it may have an easy passage so that it may be put on the Statute Book quickly. That is what I say with regard to the principle of the Bill.
I wish that I could be as enthusiastic with regard to its administration when it becomes an Act of Parliament. I am still concerned. The Attorney-General has already referred to my persistence on one or two points. At the risk of being accused of repetition and persistence, I wish to express regret that the committees as constituted under the Bill will deal with matters which I consider could be dealt with in a much more efficient way if we used other people in addition to lawyers in the administration of this Measure. I would only say that I think that it is regrettable that in civil cases which are heard before courts of summary jurisdiction, the decision whether or not legal aid and advice shall be given will be in the hands of a committee rather than in the hands of the magistrates—I am sorry to interrupt. That is exactly what the House, on the Report stage, decided not to put in the Bill. Therefore, I am afraid the hon. Gentleman cannot discuss it now.
I thought that I was getting dangerously near the line. At the same time, I submit that I might be in Order if I talked about what the Bill is actually doing. The Bill is laying down that these cases will be heard by a committee. I express the view that that is not the correct way in which to deal with the matter. I wish briefly to express that regret and to hope—
However winning his ways may be, I am afraid that the hon. Gentleman cannot go any further than that.
I accept your Ruling, Sir. Some of these points were made during the Committee stage. Therefore, I will content myself by saying that all of us really desire full success for this Measure, and I hope the time may come when people who are not lawyers may have an opportunity of playing a part in its administration.
9.0 p.m.
I am particularly happy to follow the hon. Member for West Salford (Mr. Royle) because I have some special interest in the constituency which he so ably represents. Those of us who are members of the legal profession would be the first to welcome the views of laymen on a subject of this kind. The object of this Bill, namely, to make legal aid and advice more readily available for persons of small and moderate means, is one which will be found commendable in all quarters of the House. Hon. Members will all agree that we hope for a state of affairs where none will be precluded by lack of means from pursuing or defending his legal rights.
In such a scheme, there are two dangers to be guarded against by those administering it. First, there is evasion of the means qualification, and, secondly, there is the question of vexatious litigation. On the first point, it is very proper that there should be a penal clause to deal with those who make false statements and misrepresentations as to their means in order to obtain the aid which we desire should go to those who need it. So far as the vexatious, frivolous and vindictive litigant is concerned—and he does unhappily exist—there are safeguards against him, as the House will appreciate. The exclusions referred to by my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) are directed to this aspect of the matter. Certain causes of action are placed outside the purview of this Measure, and on that point I would like to reiterate a point which I raised on Second Reading and in Committee concerning the words "wholly or partly" in Part II of the First Schedule. The point which I ask should receive some consideration is that one may find two causes of action joined, one which is covered in the Measure and another which is excluded. One knows that there are such cases in which most hon. Members will take the view that assistance should be given, and this Schedule would prevent it. There is here a flaw in the Bill which might possibly receive attention later on. It has been rightly said that the Legislature here is placing a great trust in and a great responsibility upon the legal profession. The Law Society is to prepare and administer the scheme, in consultation with the General Council of the Bar. It is right, of course, that both branches of the profession should co-operate. I merely desire to say that I feel that the profession will respond to that confidence which is being reposed in it. Panels of lawyers who will undertake this work are to be set up but there will be retained to the litigant the right of choice, which is very important. One matter which caused some of us concern was the proposal for the removal of lawyers from these panels for misconduct. Both branches of the profession have their disciplinary machinery for dealing with those members of the profession who are guilty of some misconduct. It would seem that those who are not fit to be upon the panels could well be dealt with in this way. However it is salutary that there is now included a right of appeal to the High Court against removal from the panels. In conclusion, I repeat and feel quite certain that the legal profession will do their best to make this scheme work successfully for the benefit of those whom it is designed to assist.9.6 p.m.
I shall watch with very great interest this experiment by which the State gives this trust to both branches of the legal profession. I may be optimistic, but I hope some day to hear that the Miners' Federation will be given a similar trust in connection with the nations' coal resources. I am extremely interested in the experiment. This is a Measure which will be welcomed throughout the country for the simple reason that people of small means, or of no means at all, will at last have an opportunity of resisting injustice which they have had to accept because they lacked the means with which to defend themselves.
I hope that the regulations will be framed wisely and after full consultation with those voluntary organisations which have done much to help people who could not protect themselves. I refer particularly to the trade unions, which have done much good work in this connection. I am sceptical whether the local committees are sufficient in number for the task they will have to perform. It is a matter of experiment, and I have no doubt that it can be adjusted in the light of experience. However, I should like to see the closest relationship developed between the local committees and the voluntary organisations, particularly the trade unions, with their local offices, because they know in this connection that quick action is the essence of protection, particularly in cases of accident. I wish the Measure success. I hope that those responsible for the regulations will always be ready to listen to those with suggestions to make for improvement, and I shall watch how the legal profession responds to this trust. I hope that this precedent may be extended so that some day the nation will not be suspicious and jealous about the prerogative exercised by trade unions and trade unionists.9.9 p.m.
I only want to add three or four sentences to what has been said. Like other hon. Members, I wish this Bill success, and I believe it will attain it. One of the things which will give it success is the fact that the Government and those responsible for it can count on the loyal co-operation of the members of all branches of the legal profession, an absolute essential for the success of a scheme of this kind. For the profession, it is perhaps, to some extent, a leap in the dark, perhaps more a leap in the dark than people yet realise. But although that is known by members of the profession—and I speak now not so much as a Member of this House, but as a working member of the junior Bar—I know and can testify to the fact that there is no member of the Bar or of the other branches of the profession who will not do his best to see that this scheme wins the success that is hoped for it.
There are dangers. I hope that no one will ever come to think that by the introduction of schemes of this kind litigation can ever be made a good thing. It is, in its nature, an evil and a concession which we make to the follies and wickedness of mankind. It can never be anything else. It can never be other than something which we should wish to avoid, even though we make the courts open to rich and poor alike, paint the doors bright and, as the Attorney-General said in his speech tonight, encourage plenty of people to come in. I hope as few people as possible will come in, but I hope that those who do come in will get justice. It is not only important to realise that litigation is an evil; it is also important to realise that neither speed, nor cheapness nor universality are the ultimate ends of litigation. The ultimate end is justice and the only foundation upon which a scheme of this kind, or any other scheme for the improvement of litigation, can be founded is the knowledge that justice, when it comes, will be the best and nearest approach to the truth and to the right assessment of liability that human wisdom and skill can give. Nothing short of that will give prestige or respect to a system of litigation or dispensation of justice in any country.9.12 p.m.
I do not detract from the excellence of this Bill when I describe it as a skeleton Bill. I do so because it provides a framework around which we all hope, I think, to build up a legal aid service which will give satisfaction to those of our fellow citizens who, through no fault of their own, find themselves in need of the facilities which are to be provided.
In this connection, an important responsibility will devolve in the initial stage upon those who are entrusted with the task of devising the regulations under which this scheme will operate. Those regulations will be of the utmost importance because they will affect the whole tone and atmosphere of the scheme which is contemplated under this Bill. The local committees will have a particular responsibility, especially the certifying committees. Before these certifying committees will appear the applicants for legal aid. I trust that, as the first contact between the applicant and the legal aid scheme will be the certifying committee, very great pains will be taken by those who sit on the certifying committee to make the applicant feel at home and not to subject him to any unnecessary strain or unnecessary examination. I feel we all want to avoid a situation in which the applicant feels that he or she has, in the first instance, to undergo some sort of trial in the case before the certifying committee and then to undergo a trial before the particular court in which his or her case will ultimately be heard. Perhaps I may, at this juncture, remind my right hon. and learned Friend of the very excellent work which hitherto has been done by the poor persons' committee of the London Law Society. This Committee has been operating for very many years and it has been able to dispense legal aid on the most extensive scale without the necessity of having the applicants appear before it at all. My right hon. and learned Friend knows that certificates were granted in very many cases by the London poor persons committee without the committee seeing the applicant in person at all. I hope that this particular form of administration will, as far as circumstances permit, be followed also by the certifying committees that are to operate under the new legal aid scheme. One further point to which I should like to draw the attention of my right hon. and learned Friend, and which I mentioned on Second Reading, is that this scheme owes something to the experience that was gained in the Services' legal aid scheme, which was the first attempt on a large scale to provide legal aid to a very diverse and numerous section of the community. I trust that those persons who have voluntarily stayed on in the Forces for the purpose of continuing the Services' legal aid scheme until this new scheme comes into effect will not have their claims overlooked when it comes to filling the various paid appointments which will have to be filled under this scheme when it is put into effect. The date of the implementation of this scheme we do not know. That is left, so far as the civil side is concerned, to the Lord Chancellor who will, by Statutory Instrument, appoint the date of the official commencement, and, so far as the criminal side is concerned, to the Home Secretary, who will appoint the date by Statutory Instrument. I hope that that date will not long be delayed. I know that considerable preparations have already been made to narrow the gap between the passing of the Bill and the actual implementation of the legal aid scheme. It is rather a shock to me to learn from the rather bulky correspondence I have been having lately that very many people do not know yet that the legal aid scheme has been under consideration and is likely to be put into operation in the not-too-distant future. I would ask the authorities concerned in the matter to make quite sure that the widest possible publicity is given to the date on which this scheme is put into effect. It is quite suprising how many many people do not know even that the Legal Aid and Advice Bill has been under discussion at all in this House. I should like, in conclusion, to congratulate my right hon. and learned Friend on the successful accomplishment of his labours in this regard, and to express the hope that when he looks back on his record of achievement in this Parliament he will—as I think and hope he may—place fairly high upon the list the putting into effect of this Legal Aid and Advice Bill.9.18 p.m.
I feel that this House can seldom have given any ex-Lord Chancellor such a happy birthday present as we are giving tonight to the right hon. and learned Lord Simon; for it is exactly five years to the day since he appointed the Committee which came to be known as the Rushcliffe Committee, and it really is a very great tribute to the Chairman of that Committee, to its members, to the legal societies that set about building up the framework of this Bill, and, ultimately, to the Government as well as to the Opposition and all Members of this House, that within a period of five years from the day of the appointment of that Committee the Bill passes its Third Reading in this House. A good deal has already been said about the general contents of the Bill to which I thought I myself might refer. Consequently the House will be saved the time and the trouble of listening to it again.
I desire to draw to the attention of the Attorney-General some points in connection with the Third Schedule to the Bill. I do not propose, Mr. Deputy-Speaker, to fall into the trap of enabling you to call me to Order by making referance to the Amendment which I had down for the Report stage to that Schedule and which was not called. I desire to make some reference to the actual contents of the Schedule which deal particularly with the remuneration of lawyers who are operating this scheme. Needless to say, what I shall say emanates solely from myself and I have no idea whatsoever whether my views will be in conflict with the opinions of the Law Society or whether they might share them. The point which I particularly want to bring to the attention of the Attorney-General is with regard to the right of the solicitor to recover, in circumstances in which it is applicable, 85 per cent. of the costs, taxed upon a solicitor and client basis as payable out of a common fund. I do not want to go deeply into this matter but, as the right hon. and learned Gentleman made clear upstairs, there is a great number of scales of costs to which the law is subjected. For the purposes of ordinary litigation in the High Court there are four scales. They can roughly be described as; the solicitor and own client scale; the solicitor and client scale when costs are being paid out of a common fund; the solicitor and client scale: and the party and party scale. If I may put those scales into language which the House will understand, they may be translated in this way: Those various scales give to the solicitor remuneration upon the following basis: the party and party scale gives him his bread; the solicitor and client scale gives him bread and scrape; the solicitor and client scale when paid out of a common fund gives him bread and butter; the solicitor and own client scale gives him bread, butter and jam. [An HON. MEMBER: "And caviare."] The scale which is applicable under the Bill is the solicitor and client scale when paid out of a common fund, which I have described as bread and butter scale.Both subsidised.
I do not desire to suggest that the legal profession should get any greater benefit from the costs than is proposed under the Bill. The House knows that they are getting only 85 per cent. of that scale, which was the figure proposed by the Rushcliffe Committee. In the days when the Rushcliffe Committee reported—this is worth observing because it was more than four years ago, in the early part of 1945—to the effect that 85 per cent. of the scale represented about one half of the actual profit which the solicitor would otherwise get, they were working upon the assumption that, on a total bill of costs paid to a solicitor, the overhead expenses for wages, stationery, rent, and so forth, absorbed approximately 70 per cent. Upwards of four years have passed since that time and the rate of overhead expenses has increased very considerably indeed. Now it is not unreasonable to assume that the overhead expenses absorb about 80 per cent. of a bill. Consequently the remuneration proposed to the solicitor cannot be considered excessive being, roughly speaking, a five per cent. rate of profit on the whole of the bill submitted.
So I would like the right hon. and learned Gentleman to consider, before the Bill goes to another place, whether this rather complicated basis of taxation which, after all, emanates mostly from the Chancery Division and is not in common practice on the King's Bench side—the taxation of the cost as between solicitor and client paid out of a common fund—will not impose upon solicitors, particularly in the country, a rather greater burden that it is worth. To begin with, it may be that they are not familiar, or their staffs are not familiar, with the technicalities of the basis of the taxation and that they have to employ outside assistance which is costly. In any event it will generally be necessary for them to prepare two bills of costs; first, the party and party scale for taxation itself in connection with the litigation; secondly, the solicitor and client scale bill for submission for the recovery of their own costs. That will involve a substantial amount of additional work. In addition to the actual preparation of the bill it may well be that the copying of the bill alone will occupy a typist a day and a half. It may well be that the occupation of that time, together with the possible delay in getting bills on that scale taxed or assessed, may make the solicitor feel that it would be better to sacrifice the slight benefit which he gets from that scale at 85 per cent. and resort solely to the ordinary party and party scale with much less complication. May I, therefore, leave this thought with the right hon. and learned Gentleman for his consideration: whether or not it might not be feasible to give the solicitor the option of choosing which of these alternatives he prefers. With those remarks I should like to join with my hon. and right hon. Friends in their commendation of the Bill, and particularly of the societies who have put in such a tremendous amount of work and such a high degree of skill in order to build up this framework which we shall now proceed to implement through the legal profession.9.28 p.m.
Successive Parliaments and all parties over the last 50 years have been endeavouring to build up a wall of security for the common man. It started in 1897 with protection against the hazard of accidents at work. That was the Workmen's Compensation Act, and then came various other Acts to protect him against the hazard of unemployment. In this Parliament we have protected him against the hazard of sickness, but the one hazard against which he has not been protected to any degree in the past has been the hazard of needing the services of the law.
This Measure will not affect such a large number of people as those who are afflicted by sickness or even unemployment. Anyone with imaginative sympathy and anyone who has played any part in assisting in the social services, particularly in large towns, will know that the social worker was on many occasions completely frustrated by the man or woman seeking his aid on a legal problem. In the big cities there were poor men's lawyers who could give advice, but they were lamentably short of money and legal help, and on most occasions they were unable to give the help and succour the little man needed. I welcome the Bill. I am glad that the Government have found time to add this further cornerstone to the security of the little man. It is a great Measure of reform and it ought to be recognised as such. This is not a small matter. Free legal aid has been available in the criminal courts, and on the whole it has been satisfactory, although this Bill improves it; but unfortunately on the civil side there has not been that aid for the man who could not afford the benefits of legal advice and legal help, particularly in the courts. The poor man's lawyer in the big cities could give advice, but in most of the countryside and most of the small towns the man went unaided because he could not afford legal advice. I am glad that by this Measure that kind of thing will cease to happen and that anybody who reasonably requires the help of the law will be able to secure it.9.32 p.m.
I am in rather a difficulty in following the hon. and learned Member for Crewe (Mr. Scholefield Allen) who has mentioned a further "cornerstone" of the Bill. I rather gathered that the Bill, judging by its welcome, had already achieved four cornerstones, and therefore I did not anticipate our being able to lay a fifth or sixth. I feel that this is really an unusual Parliamentary occasion. There is almost balm breathing over the benches.
While I am not prepared to agree with my hon. Friend the Member for Chichester (Mr. Joynson-Hicks) in the technicalities into which he entered, I should like to say that the scales of remuneration proposed by the Bill are adequate and in many respects represent a practical expression of the old saying:This Bill must inevitably have come along. It is built upon something which has been rather forgotten not only tonight but throughout the proceedings on the Bill, and that is the tremendous amount of work done by both branches of the profession to help very many men and women under the existing poor persons' procedure. A great deal of very noble legal and social work has been done under that procedure, but it was not wide enough, and I feel—I am certain that the Attorney-General will agree with me—that the Bill at last brings within the purview of possibility and practicability everything that should be available to the unfortunate litigant. I could not help feeling that the hon. Member for Oxford (Mr. Hogg), who has unfortunately left the House, rather set the seal on the Bill, in a speech which for him, was in utterance, unusually equable. However, it must not be forgotten that whatever work has been done within this Chamber or upstairs, tremendous work towards the achieve- ment of getting this Bill on the Statute Book has been done by those outside the House who unfortunately must remain unnamed, that is, those within the Bar Society and the Law Society. A tremendous amount of work has been done and a tremendous amount of contact has been achieved with those whom the Bill will affect. It is through those efforts that this Bill should prove a success. I would issue this warning. The tonsorially-perfect Member for Oxford warned against litigation. Litigation is an evil thing. [Laughter.] Yes, litigation is an evil thing. We are told that in the perfect State, into which we are about to emerge if we are not there already, it will be impossible; that in the perfect social sphere litigation disappears. But let it not be thought for one moment that the Bill will be followed by a tremendous upsurge of litigation—I do not believe it; I think and hope that it will result in no greater amount of litigation than exists now. In passing this Bill through its final stage in this Chamber, let us not think that we have tied the knots, put down the amulet and affixed the seal. It is a beginning, an experiment; we must not think it is the answer. It is an experiment to produce what those who have to seek litigation should have—the assurance that they can seek that recourse with no handicap and with the assistance which will be generously and most ably afforded to them by both branches of the profession and by all those who serve on the various committees. But let us hope that, whatever may be the results, it will not bring about more litigation than we have now, because what we have now is sometimes more than we can stomach."A bird in the hand is worth two in the bush."
9.37 p.m.
I should like to join briefly in the hearty welcome which has been given to the Bill. I could not let this occasion pass without referring to the very kind reference by the Attorney-General to the Law Society. In my constituency the branch of the Law Society—the Merthyr and Aberdare Law Society—have rendered an enormous service, particularly in the inter-war years, when for 15 years the overwhelming proportion of our men were unemployed. In those days they rendered service to hundreds of people and carried on their splendid work without a break. I shall never forget the small pride I felt in this House when on one occasion in the years immediately before the war the Home Secretary paid an unsolicited tribute to those splendid members of the legal profession who gave their services so ungrudgingly to the people who were so badly in need of them. Very rarely does a person who is not a member of the legal profession ever pay a compliment to that profession, but I cannot let this occasion pass without paying whatever tribute I can, and with all sincerity, to those splendid men who served our people during those long, dark, lean years.
As a supporter of the Government I take considerable pride that the present Government have at long last come along to place upon the Statute Book a Measure that may protect the poor man when litigation is thrust upon him. There can be no shadow of doubt that this is a Measure for which people in such areas as mine will feel very grateful, as it provides a sound foundation for a structure which, I hope, will be built upon it as occasion calls.9.40 p.m.
I wish to say a couple of pleasant words on the Third Reading of this Bill. This is a Bill to enable people to get into court. I do not require aid for that; I could do with aid to keep out of court. Nevertheless, the Bill will have its values because we have to face the fact that, under this deplorable system of legal robbery of man by man, litigation is a necessity and legal aid will be required. I was interested to hear the hon. Member for Oxford (Mr. Hogg) set before us the very high standard which will be maintained by the legal fraternity. The hon. Member for Caernarvon Boroughs (Mr. Price-White) and others weighed in and associated themselves with the hon. Member for Oxford. We all have hopes that the lawyers will rise to this high eminence set before them, but I would remind the hon. Member for Caernarvon Boroughs of what Daniel Quilp had to say when Samson Brass asked for a glass of water:
I think the Bill will be very useful and I am certain that lawyers, with all their limitations—which are manifold—will try to do a good job for those who have to seek their assistance."Water for a lawyer? Molten metal for a lawyer."
9.43 p.m.
The interest taken in this Bill by both hon. Members of the Communist Party will, we hope, convert them to the idea that the rights of the individual are important and should be upheld in all cases. The debates on this Bill seem to prove that our discussions proceed most smoothly when carried out by lawyers and when lawyers are spending a great deal of time patting each other on the back. It was certainly a very pleasant contrast to occasions when doctors who are Members of this House have a go at each other.
It would be a mistake if it were to go out from this House that in this Bill we have a simple form of redress for all people who have rights to assert and are of modest means. The truth is that the scheme envisaged by the Bill, which I fully support as a useful social reform, is divided into three parts, for which there are three different sets of fairly complicated regulations, which it will not be easy for the members of the Law Society to explain to the public in pamphlets. There are three separate rules in regard to contributions and three separate means tests. So we should not give people the impression that they have only to attend at a legal advice centre and say that they have limited means and all will be well. As we who have had to study the Bill know, the matter is fairly complicated. In the first stage it will not be too difficult and anyone wanting legal advice will go to the centre and take reasonable steps to satisfy the solicitor there that he is not a person of great means and, presumably, will be asked to bang half a crown on the table and, provided he is not too well dressed, he will get the advice straight away. But when we get to the next two stages we find that people will have to go through a most complicated procedure. It is as well that they should at this very early stage be warned about it. The hon. Member for Merthyr (Mr. S. O. Davies) claimed this Bill as a great triumph for his party. It should be recorded once more, as it has already been recorded earlier tonight, perhaps when the hon. Member was not present, that the work without which this Bill would have been impossible was begun by a National Liberal Lord Chancellor some five years ago. That is a fact which should not be forgotten. Also, we must bear in mind that great as has been the very valuable work which has gone on during the past five years, to which all parties and both branches of the legal profession have contributed, it is only a beginning and will prove to have been comparatively easy compared with the very difficult practical work which now faces the Law Society in getting this scheme on to its feet and working properly. The hon. and learned Member for Crewe (Mr. Scholefield Allen) appeared to think that this Bill was adding to the already extensive list of human rights. He seemed to see that the Bill was granting freedom from fear of being fleeced by lawyers. But lawyers have been of value in many ways which are frequently not recognised. They were recognised by the hon. Member for East Walthamstow (Mr. H. Wallace) when speaking about the work of the trade unions. I should like to follow up one or two of his remarks. The trade unions, whose work in dealing with the claims of their members is to be praised, as is also the very large amount of help given by both branches of the legal profession for very little remuneration, will have to be radically altered when this Bill becomes law and the operation of its provisions gets under way. It is not for me to venture to say what the policy of the trade unions will be but the success of this scheme will to some extent be measured by the way in which the trade unions decide to make use of the scheme and thereby perhaps save their funds some money and reduce to some extent the contributions from their members. This will mean a big departure from trade union practice, and it will be very interesting indeed to see which way it goes.I would not like it to be thought that I suggested that lawyers fleeced their clients. I neither said nor suggested anything of the kind.
I trust that the hon. and learned Gentleman will forgive me if I misunderstood his speech, but to me he seemed clearly to give that impression.
9.48 p.m.
I wish to make only one observation in connection with Part II of the Bill, which deals with legal aid in criminal cases. That is the part of the Bill which will have the greatest impact upon the common man. It is the part of the Bill which has been least discussed in this House. It certainly affects the rights of the common man so far as his liberty is concerned far more than does any other part of this Bill. I have some doubts as to the adequacy of that part of the Bill in dealing with legal aid in criminal cases because the existing procedure for the provision of legal aid is only altered in certain small particulars. The discretion which is to be exercised in the giving of legal aid is to be exercised by precisely the same people as before, although the machinery is slightly different.
Under Clause 17 the guiding principles in accordance with which that discretion must be exercised are different, but that discretion is still vested in the same people who have previously exercised it. How that discretion is to be exercised will determine the success of that Part of the Bill. It is a matter which has already been observed by many people that the discretion as it has been exercised under the existing regulations has been exercised in such a way as to give legal aid in only a comparative minority of cases. I hope that magistrates will exercise their discretion under this Clause in the spirit which I believe is intended. I hope the Government will keep an eye on the administration of this Clause, which can make a very valuable contribution to the effectiveness of the Bill. I wish to add my voice in commending the Bill as an important addition to our whole system and structure of social service in this country.Question put, and agreed to.
Bill read the Third time, and passed.