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Agricultural Fertilisers

Volume 499: debated on Tuesday 22 April 1952

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Motion made, and Question proposed,

That the Draft Fertilisers (United Kingdom) Scheme, 1952, a copy of which was laid before this House on 21st March, be approved.—[Sir T. Dugdale.]

10.9 p.m.

I do not want to detain the House for more than a few minutes, but I feel that before the House approves this Scheme it is my duty to draw its attention to certain observations made by the Select Committee on Statutory Instruments with regard to the form of this draft Scheme because, in certain respects, its form is unprecedented and introduces a novel and rather surprising element into the jurisprudence of Statutory Instruments.

The House will recollect that this draft scheme, which requires the affirmative approval of the House, is made under the Agricultural Fertilisers Act, 1952, to which the House devoted a considerable degree of attention in view of the widespread interest and importance which that Act attracted. It will be remembered that the Act envisaged that the scheme to be laid before our Parliament would enable the Minister to make certain payments to certain people.

Quite shortly, the object of this particular Scheme is indicated in paragraph 3, which provides that where any fertiliser specified in the Schedule was purchased for use for adding to agriculture land to improve the fertility of the soil by an occupier of the land or by an association acquiring fertilisers in bulk, then the Minister could make a certain specified contribution to the purchaser to be calculated in accordance with the provisions of the Schedule.

Speaking on behalf, I believe, of all my hon. Friends, we welcome the speed with which, since the passage of the Act, the Minister has laid this scheme before the House. We have no criticism to make of the substance of the payments which are proposed, but there is an entirely novel paragraph at the end of the draft Scheme which attracted the attention of the Select Committee on Statutory Instruments. It reads as follows:
It shall be a condition of the making of any payment under this scheme that there shall be repaid to the Minister any sum which, if a payment under this scheme were a debt accrued due to the person receiving it, it would by reason of any mistake of fact be recoverable by the Minister from that person.
The gravamen of the observations of the Select Committee, if I may summarise them, concerns a principle of the law of England which has been in existence for a great many centuries. I am glad to see that we have the presence of the Attorney-General to help us on this subject. It is also a principle of the law of Scotland, and I have no doubt that the Attorney-General will also be able to help on that subject if necessary because this draft scheme applies to Scotland as well as England and is of no less interest to the Scottish agricultural community than it is to the English agricultural community.

As I was saying, it has been a principle of the law of England for a great many centuries that any sum paid under a mistake of fact is recoverable by the person who paid it from the person to whom it has been paid. That being so, the Select Committee thought that prima facie it was very undesirable to throw any doubt upon such a well-established proposition of law by seeming to make it necessary in the Statutory Instrument to have an express provision to that effect. So the Select Committee, in pursuance of the duties entrusted to them by this House, asked the Ministry of Agriculture and Fisheries to submit a memorandum explaining why paragraph 7 had been inserted, and the memorandum of the Ministry is now before the House as an appendix to the 5th Report of the Select Committee dated the 7th April, 1952.

I invite the attention of the House first of all to the observations made by the Minister of Agriculture before I offer any comments upon them. The memorandum from the Ministry of Agriculture points out, quite correctly, that the Select Committee on Statutory Instruments were not clear, first, as to the exact purpose of paragraph 7 of the draft Scheme; second, whether there was any need for it; and, third, whether there was any precedent for it.

The memorandum then goes on to explain, quite correctly, that the payments which are to be made by the Minister under the Scheme are voluntary payments. I do not know whether that information will be received by the House with any surprise, but it is, of course, a legal expression that they are voluntary payments as distinct from debts due to the applicant for which he can sue the Minister. If in any appropriate case the Minister did not make a payment which he is authorised to make under the Scheme, there would be suitable remedies open to the person entitled which would enable him to collect the money from the Minister which Parliament has authorised the Minister to pay. Anyhow, as a matter of form the payments are no doubt voluntary payments.

The memorandum goes on to say, quite correctly:
"A payment made under a mistake of fact in pursuance of a legal liability to make payment may be recovered."
As I have said, that is a basic proposition of the common law of England. The memorandum goes on:
"In certain circumstances, a voluntary payment made under a mistake of fact, may likewise be recovered."
As far as I know, there is no distinction between the two cases.

Then comes the surprising part of the memorandum:
"It is submitted however, that in spite of recent decisions by the Courts, the circumstances under which voluntary payments made under a mistake of fact can be recovered are not yet clearly determined, and it is, therefore, advisable on legal grounds in statutory schemes for the payment of subsidies to make clear to the recipient the conditions under which the Minister may claim to be repaid, namely the same conditions as would apply to recovery of a debt paid by mistake."
It is most important that people who receive payments under the Scheme should know whether they are entitled to keep them or not. I hope we can expect from the present Minister of Agriculture the safe efficiency that we enjoyed under his predecessor, for we should then not expect many mistakes to be made. If mistakes are made, they will not be due to any fault of the recipients but will presumably be the result of some mistake made in the Ministry, and I am not at all sure that as a matter of equity or common sense it would be right for any member of the public to suffer from any Departmental mistakes made by the Ministry of Agriculture.

The concluding paragraph is important, because it really admits that there is no precedent for a provision of this kind in a Statutory Instrument. Paragraph (3) of the memorandum says:
"Although it is not unusual for statutory schemes for payments to contain provisions for the recovery of money paid contrary to the provisions of the scheme … there is no precedent for this paragraph, except in so far as its wording resembles that of Section 15 (3) of the Hill Farming Act, 1946. It is submitted that the condition contained in the paragraph making clear the respective rights of Minister and recipient, where a mistake is made, is both fair and reasonable."
I want to conclude with this general observation, with which, I hope, the Attorney-General will agree. Where the law of England has been clear on a certain subject for a very long time, it is desirable that nothing should be introduced into any Statutory Instrument which should cast doubt upon it. If there is any doubt about the general law of the land as to the circumstances in which money paid under a mistake of fact, whether it be a voluntary payment or not, is recoverable, that is a subject in which the general law of the land ought to be clarified. In so far as there is any doubt about it—I do not think that there is—it is not right for doubts to be increased by the insertion of a paragraph such as this in a Statutory Instrument which ex hypothesi is not necessary and which, by its inclusion, suggests that it is necessary and thereby throws some doubt on the general proposition of law.

It is for that reason that I have thought it necessary to draw the attention of the House to the matter. While I in no way wish to detract from the merits of this Statutory Instrument, the matters to which the Select Committee have drawn attention reveal, it seems to us, a principle to which Parliamentary draftsmen ought to have regard in the general framing of subordinate legislation.

Under paragraph 3 of the Scheme, it appears that applications will have to be made by an association which is regularly in the way of business of acquiring subsidies. I wish to get the point clear, because questions have been put to me about it. I take it, for instance, that a grazing constable or a leading man in a crofting district will not be able now to apply for the subsidy, but that it must be applied for by an association which regularly deals with these matters.

The Under-Secretary has gone a long way to meet the point of crofters and smallholders, and I do not wish to take up any more time, but it would be an advantage, as these questions will arise, if the hon. Gentleman would confirm that mine is the correct interpretation and that the wider interpretations put upon paragraph 3, or upon the equivalent subsection of the Bill, are now to some extent narrowed down by the Scheme.

10.22 p.m.

We should not pass from this Scheme without some remark being made upon a point on which I said some words when the Act under which the Scheme was laid was before the House. That was, the necessity for allowing the subsidy to be available to small farmers and crofters who would only have occasion to use comparatively small amounts of fertiliser.

It appears that the Minister has taken that point very fully into consideration and that the Act will make it possible for crofters and smallholders to make use of the subsidy and, we hope, to improve their land by the application of fertilisers. I only hope that the Department in Scotland and the Ministry of England will make it widely known to these people that they are now in a position to gain advantage from the Act and will encourage them to do so.

The only other point to which I want to refer is one that arises under paragraph 3 (b), to which matter, again, I referred in the debates on the Bill. This paragraph is to the effect that the subsidy will be available to
"an association which acquires fertilisers in bulk for redistribution to its members."
I think that the Joint Under-Secretaries of State would agree that in the debates on the Bill, there was, perhaps, at one time some doubt as to exactly who could apply for the subsidy. At one time it was suggested that any man could apply for it on behalf of his neighbours: that is to say, one smallholder or crofter could apply and could then share out the subsidy to those in his township. It now seems, under the terms of this Order, that only an association which regularly deals in fertilisers can apply for the subsidy. I do not want to labour the point, but I should like to be certain as questions are sure to arise.

10.25 p.m.

I propose to follow what my hon. Friend the Member for Islington, East (Mr. Eric Fletcher) said. This seems to be a quite serious matter. The 1952 Act authorises the payment of contributions in accordance with the scheme. Here we have the Scheme and in Section 4 of the Act a scheme may restrict the amounts of contributions in any manner and make the payment of contributions subject to any conditions.

There are then given a number of instances for cases which are really nothing to do with the point my hon. Friends have been putting. What, in fact, has happened is that the Scheme has appeared with paragraph 7 at the end of it. I go back to paragraph 7 which makes it
"a condition of the making of any payment under this Scheme that there shall be repaid to the Minister any sum which, if a payment under this Scheme were a debt accrued due to the person receiving it, would by reason of any mistake of fact be recoverable by the Minister from that person."
That is supposed to be and intended to be a condition for the making of what must be a second payment and, in effect, it uses the making of the second payment to enable the Minister to make a recovery in respect of what I will call the first or earlier payment. One of two things happens, either the payment under the first Scheme is recoverable anyhow, in which case I can only call this condition an exceedingly misleading and unnecessary condition, or it is not recoverable, in which case the Minister is using the making of the second payment and this paragraph in the Scheme as a means of recovering a debt which otherwise he could not recover.

There remains the further alternative, and it is rather significant that that is the alternative upon which the Ministry rely. I hope that the Attorney-General is not objecting to my finding three alternatives—I agree that it is illogical—but, if I may continue to be illogical, it is that there is some doubt about the matter. The point which strikes me as of some real importance is that if there is some doubt about the matter surely it ought not to be resolved by a paragraph in a Scheme; it ought to be resolved in the courts in the usual and proper way in the circumstances of each case, or on the circumstances of some test case. The way to resolve doubts or clarify the law is not that of putting a paragraph in an administrative Scheme.

Either it adds nothing to the Minister's rights, in which case it is quite unnecessary, or it adds something to the Minister's rights, in which case it seems beyond the language and intention of the original statute and somewhat unconstitutional or, in the third alternative—which is the one the Ministry apparently prefer—it clarifies the position. I take the strongest objection to an administrative Scheme being used to clarify a point of law. It is not the right way to do it, and it is an evasion by the Executive of the powers of the judiciary, which, even in such a small matter as this, ought not to be supported.

I say quite seriously to the Minister that I think this Scheme ought not to proceed with this paragraph 7. I cannot see that it does any good; I can see that it is a dangerous precedent, if a precedent on quite a small point. Lastly, as a matter of common sense, if one is trying to find out the rights of the subject under an administrative order, if a farmer is getting some fertiliser subsidy, does one write or go to the Stationery Office and read carefully through the Scheme to find out what the rights of the subject are? One does not do anything of the sort. One either tries to find out from the official concerned, or consults legal authority in the district.

Surely, if nothing more can be said for those who thought of this method of instructing the subject, one can only conclude that it is a silly method and an inefficient one. On all of those grounds, though I agree the point is quite small, and though it does seem a tiny matter about which to keep the House, I think that this is a matter we should take seriously, and discourage this innovation—for it appears to be a complete innovation—and be grateful to the Select Committee for having fished some of the remarkable characteristics of this Scheme out of the Scheme itself and out of the responsible Minister.

10.31 p.m.

I find myself in a little difficulty because when the matter was debated there was a fairly clear understanding given to the right hon. Gentleman, who was then present, with the Parliamentary Secretary, that when the Scheme was introduced, we should not go over the debate again. I did not know then that the Statutory Instruments Committee would find so many things in the Scheme on which to comment, but I prefer to keep to the undertaking fully, and not follow the points raised by my hon. Friends.

I was a little surprised, some days ago, when the debate was suddenly adjourned, whether by the oversight of the Patronage Secretary or the exhaustion of the Leader of the House I do not know, because they had had an assurance and none of us had any malicious intentions at all.

I only want to thank the right hon. Gentleman for the full way in which he implemented that undertaking which he gave in the debate. I think it was ungenerous of the hon. Member for Orkney and Shetland (Mr. Grimond) to lavish praise on the Government for amendments all of which resulted from Amendments put down by my right hon. Friend the Member for Belper (Mr. G. Brown) and some of my hon. Friends on this side of the House. It really is a little hard, after we had debated the matter for a variety of mornings, because of the incompetence of the Leader of the House, that any of those encomiums should be passed at all. I am, therefore, proposing a vote of thanks to myself—

I should like to second that vote of thanks. I do not remember that, but let me be the first to second it.

I am much obliged. The debate carried on after ten o'clock for a number of nights, and I have paid tribute before to the very able way in which the right hon. Gentleman conducted the debate, which certainly facilitated and shortened our discussions, and I commend that example to some of his right hon. Friends who have not yet learned the secret.

There were three main points that were very amply implemented. There is the whole widening of the definition of the persons entitled to benefit; there is the reduction of the figure of 10 cwt. to 4 cwt.; and there is the definition of land which was produced on the Report stage. For all these things we are extremely grateful. I think it is a great improvement and subject to what has been said tonight I have pleasure in welcoming these amendments.

10.35 p.m.

The Joint Parliamentary Secretary to the Ministry of Agriculture
(Mr. G. R. H. Nugent)

I thank the hon. Gentleman the Member for Oldham, West (Mr. Hale) for recognising the implementation of the undertakings given. The reason why the last debate was adjourned was because we were waiting for the report of the Statutory Instruments Committee, which, in fact, was only published the day before the House went into Recess. It is true that the Scheme could have come on that night, but the course of events was not altogether predictable.

Although I accept that the Scheme was put down for that day, why put it down when it was known that the report was not available?

I think it is a fair comment to say that the course of events for that day was not altogether predictable, and I was not entirely clear what attitude hon. Gentlemen opposite wished to take in the debate. It seemed better to take it tonight when we could have a more convenient occasion for discussing it.

With regard to the technical point raised by the hon. Gentleman the Member for Orkney (Mr. Grimond), associations are only as defined in the Scheme. Informal associations cannot qualify. We feel that in reducing the minimum quantity to 4 cwt. we have really brought it within the reach of every bona fide smallholder.

I congratulate the hon. Gentleman the Member for Islington, East (Mr. E. Fletcher) and his hon. and learned Friend the Member for Kettering (Mr. Mitchison) on the vigilance of the Statutory Instruments Committee in bringing the matter before the House. The hon. and learned Gentleman asked what would be the reaction of the farmers to this kind of Scheme. The answer is that the farmer knows roughly what the subsidy is worth now. It is worth 30 per cent. of the phosphatic content of the fertiliser, and I think he would accept, if he made a mistake in his application that he would probably be required to repay that portion of the subsidy due to that mistake. I think any ordinary and reasonable person would accept that.

That is all this Scheme sets out to do. The offending paragraph—paragraph 7—only tries to qualify the position. There is some doubt in the minds of our lawyers whether a voluntary payment is always recoverable as, in fact, a debt due would be. There was one point on which the hon. Gentleman the Member for Islington, East, was not correct, and that was if there is a mistake by the Minister—a mistake of law—in the administration of his Scheme that is not recoverable. The farmer who has benefited from the mistake can retain the benefit. This applies where there has been a mistake of fact in the application for a subsidy.

With regard to the precedents, I think the case set out in the Department's reply to the Statutory Instruments Committee does give as complete an answer as we can. There is some doubt in the minds of our legal experts whether a voluntary payment is always recoverable and it is to remove that doubt that we have done that.

If I understand the hon. Gentleman rightly, and I hope he will correct me if I am wrong, the position is that there is some doubt whether some of these payments would be recoverable at law. Accordingly, the intention of this paragraph 7 is to make recoverable payments about which it is at least doubtful whether they would be recoverable otherwise. Therefore, if I am right, this Scheme is being used to extract from the subject payments which might not otherwise be recoverable from him, and that without any specific authority to that effect in the Act.

No, it does not go quite so far as that. There are cases—and the case of Lamer v. the L.C.C. was a particular one—which exactly support what I was going to describe as the philosophy, but which at any rate is the reasoning, in this paragraph. Nevertheless, although there is case law to support this, it was felt there was a sufficient element of doubt to make it desirable that there should be something to clarify it in this Scheme.

The hon. Member for Islington, East, will recollect that in the last paragraph of the reply to the Statutory Instruments Committee we referred to the fact that there was some similarity in the Hill Farming Act, 1946. Although the wording is not exactly the same, I think it is right to say there is to some extent the same device there. This arrangement replaces the provision in the 1947 Scheme relating to lime, which required an audit. It was felt that that was such a clumsy and inconvenient method of dealing with the possibility of recovery in the event of overpayment due to a mistake of fact by the applicant that it was better to put it in the way now proposed, so as to provide a simple process of recovery which it was felt would be understandable to all. I trust that with that explanation of our honest intention, and I hope the clarification of the Scheme, the House will consent to this Motion.

10.43 p.m.

No one has greater admiration for the Joint Parliamentary Secretary than I have. We served as colleagues together on a great local government authority, and as one of the senior members I watched his steady rise in the counsels of that authority with great admiration and a feeling that it was well merited. But I do not think that even he would claim that on a difficult point of law, as it appears to the laymen, raised by my hon. Friend the Member for Islington, East (Mr. E. Fletcher) and amplified by my hon. and learned Friend the Member for Kettering (Mr. Mitchison), we could accept him as an unchallengeable authority.

In fact, the hon. Gentleman relied on the doubts that were felt by his legal experts, by whom I understood him to mean the legal advisers inside the Ministry. But, after all, we have a greater legal expert than even the very skilled lawyers who advise the hon. Gentleman's Ministry on the way to assist the agricultural community. We have the right hon. and learned Gentleman the Attorney-General. In view of the important question of general principle—as I as a layman understand it—that if one does something in this way in connection with what has been regarded hitherto as a quite unchallengeable principle in law, one may cast doubt on all the statutes where this might have been included but was not, it would be to the interest of the House, and in the interest of a clear understanding of the exact position, if the Attorney-General gave us the benefit of his views on the matter.

Also, on the point raised by the hon. and learned Member for Kettering that there is nothing in the law on which this Scheme hangs which justifies the introduction of this particular paragraph, I would point out that an Instrument of this kind cannot go beyond the provisions of the Measure which authorises its making.

We are all indebted to the right hon. and learned Gentleman the Attorney-General for attending throughout this discussion; and I say to him that this point has been raised as one of general law, and not as a pernickety criticism of this Scheme. It was made by the Statutory Instruments Committee of the House, which is a body charged with the duty of drawing the attention of the House to any unsual features which may appear in any of these Statutory Instruments and, for the reasons put forward, I hope that the right hon. and learned Gentleman will feel that, without being prompted by the Parliamentary Secretary—who, in any case, is not even a solicitor and is not, therefore, entitled to brief the right hon. and learned Gentleman—will give us an elucidation of the facts as he sees them. I hope that he will do that as a Law Officer of the Crown, charged with the duty of advising the House on issues involved in a discussion of this kind.

10.46 p.m.

I am grateful for the kind words of the right hon. Gentleman, and I am particularly honoured to be the third representative of the county of Surrey to speak in succession on a matter of this kind; and to speak in a non-party spirit, as we often do on matters of public interest in the county of Surrey. The county sets a very good example …

Well, I was born and brought up in Lancashire, so that is all right.

First of all, I am asked, is this Scheme within the powers of the Act at all? I would remind the House of the words of Section 4, which are that:
"A scheme under this Act may restrict the amounts of contributions in any manner and make the payment of contributions subject to any conditions, and may, in particular,"
and then there follows (a), (b), (c), (d), and (e).

When an enactment of this kind has been made, it is intended that it shall fulfil this purpose; first, to give a general power to do anything which comes within the terms of the wording, and then, to remove any doubt, to make particular reference to certain matters. This Section clearly gives this, I suggest to the House, within the words:
"may restrict the amount of contributions in any manner and make the payment of contributions subject to any conditions."
The condition here is that there should be repayment if there had been payment in mistake. In the other parts, we are dealing with specific matters which, at first sight, might not be thought to come within it. But, in this case, we are dealing with something which, I think, does come within it. The first point is that the Scheme comes generally within the Section.

Secondly, I am asked why it is found necessary to say this at all. With the greatest respect to the hon. and learned Gentleman who has raised the point, I do not think there ought to be any doubt about it at all. In the case of Lander v. the London County Council in 1949, after a considerable amount of discussion, I agree, it was decided in the case of a voluntary payment that there was this right of recovery. That was decided in that case, and that is the law now, but, unfortunately, it is not realised by a large number of people. I do not believe that we are doing anything unconstitutional in pointing out to the readers of this document that this is the case.

There may be some people, though I do not suppose that the hon. and learned Member for Kettering (Mr. Mitchison) is one of them, who might be embarrassed or who might be rather worse off in their legal profession because there is less doubt about the law. Some people might think it rather a good thing. There might be something in the Roman saying, "Ut sit finis litium." It certainly leaves no doubt in the mind of the reader. We have often been told—the unfortunate man reads this awful document—but how is he to know? The wretched man will know if he reads paragraph 7 that if he receives money he ought not to have got, he has to pay it back again. We do not think that is a bad thing. That may not be an ultra legal point, but it seems to be one of common sense, and it seems to me sometimes not to be a bad thing if common sense and law go together.

I quite appreciate the force of what the right hon. and learned Gentleman has so wittily said, but what I quite fail to understand is why in these circumstances this very curious paragraph goes into the Scheme. It proposes to put on a new condition and the right hon. and learned Gentleman has pointed out, quite rightly, what I had already read out of the Act, that there is power to put conditions of that kind into the Scheme. Surely it is the wrong way to do it. If you wish to say to a farmer, in plain English, "If you have received any money in mistake, you have to pay it back" the right thing is not to put it in a footnote to the Scheme. What the right hon. and learned Gentleman told us is pretty clear already. Why put it in the Scheme as a condition, and above all, when the Minister is called upon to account for this unprecedented innovation, why do it in a memorandum and say, "We have done it to clarify the situation?" It does not clarify it; it makes it far more obscure, if it is a mere statement of the law.

It may make it more obscure to a lawyer, but it makes it clearer to members of the general public.

Question put, and agreed to.

Resolved,

That the Draft Fertilisers (United Kingdom) Scheme, 1952, a copy of which was laid before this House on 21st March, be approved.