Clause 11. — (Powers of Search.)

– in the House of Commons at 12:00 am on 24th January 1951.

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Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton 12:00 am, 24th January 1951

I beg to move, in page 4, line 42, to leave out "officer," and to insert "person."

It is desirable that Clauses 10 and 11 should be consistent in their wording. In Clause 10 (5), it will be seen that reference is made to any person appointed by the Secretary of State whereas in Clause 11 we refer to any…officer appointed by the Secretary of State. It is desirable to make the wording consistent, and therefore we propose to continue the word "person" throughout.

Amendment agreed to.

Photo of Mr David Pryde Mr David Pryde , Midlothian and Peeblesshire

I beg to move, in page 5, line 15, to leave out subsection (4).

The subsection reads: Where a water bailiff has reasonable grounds for suspecting that an offence against section three or section four of this Act has been committed.… I wonder whether the Lord Advocate would explain just how far it will be possible to estimate what the water bailiff considers to be "reasonable grounds."

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

The expression "reasonable grounds for suspecting" is in common form. We must allow discretion to a person who is exercising powers of this nature. If a person who is given such powers uses the powers wrongly and invades the property of a third party, he will become liable in the civil courts for damages for that invasion of the property rights. Therefore, at the end of the day it might be a question for the courts to determine whether he had exercised his powers reasonably and whether he had reasonable grounds for suspecting, but unless we give a person latitude which is in common form, such as we have used in this Clause, it is completely impracticable for him to carry out the powers.

We say that if he has reasonable grounds he may do these things, albeit as a result of the search it is found that there is no evidence to justify a subsequent charge; but those and just the sort of powers the police have at the present time. Therefore, we must allow such a man the latitude of having reasonable grounds for suspicion. On the other hand, if he carried out a search and the person aggrieved could satisfy the court that no reasonable individual could have had grounds for suspecting him and that the man had abused his powers under the subsection to inflict damage on him by the invasion of his property, he would be able to obtain a civil remedy and damages. It must be left on that basis. To try to make it any more restrictive would make the Clause quite inoperable.

Photo of Sir Charles MacAndrew Sir Charles MacAndrew , Bute and North Ayrshire

Does the hon. Gentleman the Member for Midlothian and Peebles (Mr. Pryde) seek to withdraw his Amendment?

Photo of Mr David Pryde Mr David Pryde , Midlothian and Peeblesshire

I do not wish to press the Amendment, though I would remind my hon. and learned Friend that he is creating a section of society comparable to the Ogpu in Russia. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Photo of Mr Niall Macpherson Mr Niall Macpherson , Dumfriesshire

I beg to move, in page 5, line 18, to leave out "private."

The subsection reads: …evidence of the commission of the offence is to be found in any vehicle on any private land adjoining any water within his district. As I understand the Clause as drafted, a water bailiff may search a vehicle parked on private land and stop, if he can, and search a vehicle moving on private land, including, I presume, a private road; but what he cannot do is search a vehicle parked on a public road or on public land and far less stop a suspected vehicle on a public road. This seems to be an open invitation to anyone taking active preparatory steps for any kind of large-scale expedition to avoid parking a vehicle on private land.

Considering, first, that the vehicle is in any case most likely to be parked on a public road so that it can get away quickly, if need be, without calling excessive attention to itself; second, that in remote parts the water bailiff would have the greatest difficulty in conveying a description of the vehicle to the police in time to be of any use at all; and third, that even if he could do so the evidence would by that time almost certainly have been destroyed, there seems to be a strong case for allowing a water bailiff powers to search vehicles parked on the highway or on public land—that is, just off the highway. I suggest that the Lord Advocate should look into this to see whether words can be devised to make that possible. I cannot see how any abuse could arise therefrom.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

This Amendment goes a little too far. After all, we and giving the water bailiffs considerable powers in giving them the power to search a vehicle which happens to be parked on private land. The vehicle in most cases would be there without any authority or right. They and given here the power to search that vehicle, but to give them the right to search a car on the public highway really seems to me to run a serious risk. I should have thought that no private citizen who has occasion to be driving along a country road which happens to run alongside a river in which there is salmon or trout being poached should be in a position to be held up and to have the vehicle searched by someone who is not a uniformed constable, someone who has not normally the authority of the law to search.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

The hon.…Gentleman talked about the power—

Photo of Mr Niall Macpherson Mr Niall Macpherson , Dumfriesshire

Even as the Amendment is proposed there is no power to stop the vehicle, and someone even in uniform would have difficulty in doing so.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

Yes, but if we accepted the Amendment, it would give the water bailiffs power to search a vehicle on any land. The hon. Gentleman surely has in mind that they would have the power to search a vehicle standing on the public highway.

Photo of Mr Niall Macpherson Mr Niall Macpherson , Dumfriesshire

Or adjoining any waters.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

Or adjoining any waters. We have said "on any private land" because we believe that the vehicle which the bailiff might properly be given the right to examine and to search would be one which would be found on private land in the vicinity of waters that were being poached. To give that person the right to search vehicles on the public highway seems to me to be a different thing. Whether or not he could successfully stop the motorist driving along the highway, I do not know, but if he accosted the motorist who was parked on the public highway, I think as often as not the driver of the vehicle would resent this non-uniformed person demanding the right to search his vehicle and there would in many cases be a serious altercation between the non-uniformed person who is a water bailiff and the owner or driver of a car.

We have gone so far in this Bill that we run the risk of serious abuse of motorists being troubled unnecessarily, and we would be accused of being irresponsible if we gave the water bailiff the right to search a vehicle on the public highway. Therefore, I beg the hon. Gentleman not to press his Amendment.

Photo of Mr Colin Thornton-Kemsley Mr Colin Thornton-Kemsley , North Angus and Mearns

This is not a great matter, but the Joint Under-Secretary of State has made rather a point about the public highway. One envisages a large arterial road, but what happens in so many places in Scotland is that a farm road of secondary importance runs down to a river. It is a public road, but it is on private property. Of course, no water bailiff would have a power of search unless the terms set out in the subsection were complied with, namely, that he had reasonable grounds for suspecting that an offence had been committed. He must have those reasonable grounds for suspecting an offence before he exercises the power of search.

8.45 p.m.

My hon. Friend who framed the Amendment suggested, very reasonably, that he was not entirely wedded to the particular words of his Amendment, and he asked the Government to look at this matter and see whether some such words could not be incorporated in the Bill. That seems a reasonable request, bearing in mind that so many of these small secondary roads which run down to rivers in Scotland and not private roads but and roads which belong to the inhabitants at large. It is on exactly that kind of road that a car would be parked, and we think it reasonable to give to water bailiffs the power of search if they have reason to suspect that an offence has been commit-ted in respect of that car or vehicle. I support the Amendment.

Photo of Mr David Robertson Mr David Robertson , Caithness and Sutherland

My hon. Friend the Member for Angus, North, and Mearns (Mr. Thornton-Kemsley), did less than justice to the Amendment when he said that access roads, like farm roads, running down to the river, and those which and mainly concerned. The public highway, which has been built up throughout the ages invariably follows the course of a river through the valley; that applies all over Scotland, and I could give countless instances.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

Mr. T. Fraser indicated assent.

Photo of Mr David Robertson Mr David Robertson , Caithness and Sutherland

I see that the Ministers on the Front Bench agree with me. This question is worthy of a little further thought for that reason. The power of search is qualified by the fact that the bailiff must have reasonable grounds for suspecting an offence and that the search must be on land adjoining the river where the offence is suspected to have taken place.

As one who took some minor part in locating a consignment of stolen salmon, I should inform hon. Members that that salmon was detected, not on the public highway, but on the railway. I had some little difficulty in persuading the railway authorities to meet my request to open the suspected packages, which contained, not white fish, as had been supposed, but salmon. For those reasons, I appeal to the Government Front Bench to give this matter further thought before making a final decision.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

In view of the success of the hon. Member for Caithness and Sutherland (Sir D. Robertson) in tracing lost property some time ago, we might invoke his assistance in relation to some more recent lost property: Hon. Members will appreciate that there and difficulties in this matter. As the hon. Member for Caithness and Sutherland pointed out, many of the roads concerned and main roads which follow a river. An instance which leaps to my mind immediately in connection with a salmon river is the road from Ballater to Braemar, which is a very popular road and more or less follows the river the whole way between those places.

If, however, people using that road by car, and who stopped to look at Balmoral or other beauty spots, were liable to have their cars searched by a water bailiff who had no uniform but merely produced something which might look like either a warrant of authority or a season ticket for a football ground, there might arise a great deal of difficulty and not a few breaches of the peace. That is our great difficulty in the matter.

On the other hand, we quite appreciate that cars may be available adjoining the part of the river where the poaching has taken place and be accessible as a means of quick getaway. It is difficult to reconcile the two points of view. We will certainly look at the matter before the Report stage, but I impress upon those who have spoken that by giving in, as it were, to one side we should be taking away rights which should be enjoyed, not by the other side, namely, the poacher, but by the side which is represented by the members of the public, who and not concerned in poaching or even, perhaps, its discovery. The proposal might mean too much of an invasion of the normal rights of the normal individual when, although the bailiff may have reasonable grounds, it still creates a certain amount of inconvenience, although the person who is inconvenienced may not want to go to court to assert his civil rights, even though he has been inconvenienced and annoyed. The position must be looked at from this point of view also. I cannot guarantee that we will give effect to this Amendment, or even anything like it, but we will certainly look at it again between now and the Report stage.

Photo of Mr Niall Macpherson Mr Niall Macpherson , Dumfriesshire

In view of what the right hon. and learned Gentleman has said—and we all appreciate the difficulties he has pointed out—I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Photo of Captain James Duncan Captain James Duncan , South Angus

1 beg to move, in page 5, line 19, to leave out "adjoining any water" and to insert: in the ownership of a riparian proprietor. If hon. Members will look at the Clause with this Amendment they will see that it reads: Where a water bailiff has reasonable grounds for suspecting that an offence…has been committed and that evidence of the commission of the offence is to be found in any vehicle on any private land in the ownership of a riparian proprietor within his district or any district adjoining thereon the said water bailiff may search that vehicle. I am no lawyer but it is thought by those who have some legal experience that the word "adjoining" may be too restrictive and may be interpreted in a court of law as the bank of a river and nothing else. I have tried to draft a form of words which would be less restrictive but not so wide as to include the public highway and public paths. This is a little wider but not unduly wider because it has to be in the water bailiff's district and, therefore, cannot be on a riparian owner's land at the top of a hill 10 miles away.

It has to be within the district and also on private land and it seems to me that within those restrictions it meets what I should have thought was the purpose of the Bill, namely, to give the water bailiff power over private land near the river—appandntly the word "near" is not a good legal expression, but he would have power to search vehicles where there is reasonable cause to suspect that an offence has been committed.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

The hon. and gallant Member said he had tried to find words which were less restrictive than "adjoining any water" and that he thought he had found words less restrictive. We think the words open far too wide a field. Although the hon. and gallant Member says there is a restriction in the words he has used, nevertheless I am inclined to think that in some parts of the country there would be the right of search over a very wide area. One has only to think of some of the large estates of some of the landowners in Scotland, one thinks, for instance, of the Duke of Buccleuch

Photo of Captain James Duncan Captain James Duncan , South Angus

It has to be within the district.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

Yes, but one would find that in the district the water bailiff would exercise his authority over far too wide an area, extending for many miles from his normal area of operation from the riverside. It would be within his district, but many miles from the riverside and we think this much too risky. I think the land on which the vehicle is found, and which the water bailiff has a right to search, must be reasonably near water and must not be five or 10 miles away from the water. I am not sure that it could not be at a much greater distance yet still on the private land of a riparian proprietor.

What I have said of an owner in the south of Scotland could equally be said of an owner in the north of Scotland, where some own very large estates. To say that within his district, and within the land owned by the riparian owner, the water bailiff shall be given power to search vehicles many miles from the water's edge is going too far, and we had better stick to the words "adjoining any water."

Captain 'Duncan:

I should like to ask the Lord Advocate to have another look at this point. It has been suggested to me by persons with legal knowledge that the words "adjoining any water" mean a river bank and nothing else. That is the whole point of my Amendment, to try to avoid that point arising in a court case and the prosecution losing the case on a technical point about the meaning of a bank of a river or what "adjoining any water" means. My attempt to provide against that may not be a good way. I think it is quite a good way, but if it does not meet with the approbation of Members of the Committee I am quite prepared to accept other words, if they can be found. I want an assurance from the Lord Advocate that he will look into this point and see that the words "adjoining any water" and not too restricted in that they mean only the river bank.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

We think that our words will be better than those of the hon. and gallant Member. He has, however, expressed an opinion held by some persons who and knowledgeable in the law that "adjoining any water" means only the river bank.

Photo of Mr Thomas Fraser Mr Thomas Fraser , Hamilton

That would seem to make nonsense of an earlier Amendment. If the land "adjoining any water" included only the river bank I should not have thought that there was any need to amend, as the previous Amendment proposed, by the deletion of "private," the power to search land. The Lord Advocate has given an undertaking that we will have another look at this Clause from the point of view of the land in respect of which water bailiffs and to be given the power to search a vehicle. In making that examination we will, if the hon. and gallant Member will agree to withdraw his Amendment, also take into account the proposition he has put forward in moving his Amendment.

Photo of Captain James Duncan Captain James Duncan , South Angus

In view of that undertaking, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I beg to move, in page 5, line 20, at the end, to insert: (5) Any person appointed by the Secretary of State in pursuance of the last foregoing section may exercise in relation to any water the powers conferred upon a water bailiff by virtue of this section. This is, in a way, a formal Amendment. We feel sure that the Committee will accept the point that a person who has been appointed by the Secretary of State to exercise powers equivalent to those of a water bailiff under Clause 10 should have similar powers to those conferred on a water bailiff by Clause 11, namely, the right to search vehicles on private land when he suspects, or has reasonable ground for suspecting, that an offence under Clauses 3 or 4 has taken place. Unless we make provision for that, no person other than a police constable could have those powers in an area where there is no district board.

Amendment agreed to.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I beg to move. in page 5, line 21, to leave out "warrant issued under," and to insert "search authorised by."

At present the requirements of Clause 11 (5) that a female shall be searched by a female—

Photo of Sir Charles MacAndrew Sir Charles MacAndrew , Bute and North Ayrshire

I would draw the right hon. and learned Gentleman's attention to the fact that the Amendment I called was that standing in the name of the Secretary of State for Scotland, in page 5, line 21.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

Yes, that is the one with which I was intending to deal.

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

On a point of order. Is not the mistake due to the fact that a new subsection has been inserted and that therefore the subsection we and talking about should now be subsection (6)?

9.0 p.m.

Photo of Sir Charles MacAndrew Sir Charles MacAndrew , Bute and North Ayrshire

I thought that the Amendment I called was in line 21, to leave out, "warrant issued under," and to insert. "search authorised by."

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

And I thought I was dealing with that. I am afraid it was just the preamble to my remarks which led to the misapprehension.

At present, subsection (5) provides that a female shall be searched only by a female, but that applies only to a search carried out under the authority of a warrant under subsection (1) of Clause 11. But a search of a person may be made by a constable without a warrant under Clause 11 where it is impracticable for him to apply for one. This Amendment secures that a female will not be searched except by a female in such a case. If we do not make provision for this, what would happen would be that under the Bill a female could only be searched by a female in a case where a warrant had been issued; but a female could be searched by a male in a case where a warrant had not been issued. In those circumstances we feel that is too dangerous a power, and therefore we and seeking this authority in order to protect the rights and interests of the poacheress.

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

I wish to make my usual probe. Does this subsection apply to England, and if so, is it an alteration of the English law?

The Lord:

The point is that if the offence takes place in an area which is covered by the provisions of this Bill, then this Clause will attach. Search will be available provided that the conditions set out in the Clause have been observed. I quite understand that there is a certain amount of disquiet in the mind of the hon. and gallant Member about restrictions, but I am sure that on reflection he will think they and well observed.

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

Is this an alteration of the English law as applied to the district outwith Scotland?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

As the hon. and gallant Member knows, the River Tweed has always been regarded in its entirety as in Scotland for fishing purposes—

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

Yes, but not for searching females.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

It is because I have a heart that we have inserted this Amendment.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

Of course it is a new law so far as the whole Bill is concerned. That is the purpose of our being here tonight.

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

The Lord Advocate is not being quite fair. A short time ago he referred to the question of one instead of two witnesses and admitted that that was an alteration of the Scottish law. Now I am asking him, quite simply, whether this Clause or subsection alters the English law?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

It is enacting new law—

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

For England. in a Scottish Bill?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

For the purposes of this Bill; and this Bill, like all other Bills, embraces—if that is the appropriate word—that part of the Tweed in England.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

Then we really have on interesting submission. Here we have a Bill which apparently is to affect the law with regard to certain English females who and not under Scottish law in other circumstances. I think my hon. and gallant Friend is quite right in drawing attention to this. I would say right away that, as we have this interference in English law and the customs of English life, I hope we shall not have to take it further and set up a real measure of Home Rule for England to prevent encroachments on English law.

Photo of Mr David Pryde Mr David Pryde , Midlothian and Peeblesshire

I wish to appeal to my right hon. and learned Friend to take women out of this Bill altogether. I am sure that no one can visualise the girls from the Peebles weaving mills going on poaching expeditions. While it may be true to say that up in the North of Scotland the people do not lead such a cultured life as those in Midlothian and Peebles, I do not see why it is necessary to go to the expense of appointing female searchers simply because there is a likelihood that women may be caught salmon poaching. Is it not possible to cut women out of this Bill completely? It is bad enough to make war on the men of Scotland, but surely a Labour Government should not make war on the women.

Amendment agreed to.

Photo of Mr David Pryde Mr David Pryde , Midlothian and Peeblesshire

I beg to move, in page 5, line 22, to leave out "except by a female."

This Amendment would have the effect of making it impossible for a woman to be searched in pursuance of any warrant issued under this Clause. However, the Lord Advocate has pointed out that it would be possible for a woman to be searched without a warrant. I have already appealed to him to try to cut women out of the Bill completely. I hope that he will consider my suggestion and not make us the laughing stock of the whole country.

Amendment negatived.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

Photo of Mr James Carmichael Mr James Carmichael , Glasgow Bridgeton

I am rather uneasy about the procedure to be adopted under this Clause, which allows any justice of the peace to grant a warrant authorising any bailiff, constable or officer appointed by the Secretary of State to make a search. I am disturbed by the fact that a week may elapse before this is done. If we allow that time to pass, surely the bailiff, if he has any evidence, will have time to go to the appropriate authority, which is the police, to lodge his complaint. They have the power to make the necessary representations to the sheriff. It is bad at any time to give power to anybody other than the authorised body. the police, to make a search.

While I recognise that the sheriff would be careful before he granted a warrant, there is power here for a justice of the peace to grant a warrant. I do not hold anything against justices of the peace. I am one myself. But I do not think that in many country places a justice of the peace is an appropriate person to have this power.

Mr. McKie:

Why not?

Photo of Mr James Carmichael Mr James Carmichael , Glasgow Bridgeton

I will try to explain. This may be an exaggeration, but a landlord who has a bailiff who wants a warrant may well be the justice of the peace. I do not think that anyone would like the law of Scotland to get into such a state that the landlord would be able to grant a warrant to his own bailiff to make a search. I ask the Lord Advocate to give us guidance. I consider that, as a period of one week is permitted, it would be wise to lay down that the bailiff should go to the appropriate police authority and let the police make representations to the sheriff. Then the process of issuing a warrant could be carried out under the well-established practice in Scotland—through the police authority.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

My hon. Friend has expressed the view that we would not like to make it part of our legislation that a landlord or landowner who was a justice of the peace had a right of giving a search warrant to a water bailiff. In the first place. I do not think that a landlord would exercise that power if he had an interest in the matter. I think it would be contrary to his judicial duties, but, in so far as a justice of the peace may give a warrant to a water bailiff. there is nothing new in that, because, according to my computation, that has been going on in Scotland for 82 years It just shows that our educational process is continuous.

We and not altering the law, but. substantially, merely re-enacting the law to extend the rights contained in the warrant to cover the new conditions which we find in this Bill. Since the Salmon Fisheries (Scotland) Act, 1868, there has been power for a sheriff or justice of the peace to issue a warrant to a water bailiff or constable to enter premises and seize gear or fish illegally taken.

In the Clause we and extending this power further in one respect, because we and covering the various circumstances provided for by Clauses 3 and 4 of the Bill. The reason why we give the right to a water bailiff is simply because he may be the person best able to get the evidence before it disappears. My hon. Friend points out that a warrant will have a life of up to one week and that it can be exercised within that period. The reason for that is that we must make it run for a certain period, because it may not be possible to ingather immediately all the evidence desirable under the warrant.

It may be that the premises and not accessible, and that some time is taken before we can get to the vehicle or store which we wish to search. In those circumstances, the warrant obviously has to have a period of life, and we think that a period of one week is the proper period in those circumstances. In the normal case, one wants to get the evidence as soon as possible, and, therefore, the warrant would be exercised at the very first available opportunity.

My hon. Friend asks why we do not leave it to the police constable, but, in these cases, and particularly in the scattered areas, it may not always be possible to find the constable available at the time to exercise the warrant efficaciously, and if one had to wait for the arrival of a police constable the available evidence might disappear and be lost. In these circumstances, following the precedent which has existed since 1868, we feel that it is perfectly justifiable that the power should be given to people other than constables.

Mr. McKie:

I want to say how very glad I am that the Lord Advocate resisted what I might presume to call the preposterous suggestion of the hon. Member for Bridgeton (Mr. Carmichael) in seeking to impugn the good faith of a justice of the peace in Scotland, who may be called upon to give a search warrant in this respect. I declare that I have no interest in this matter. The hon. Member for Bridgeton said he was a justice of the peace. I am not, so perhaps I can be relied upon to give a more unbiased point of view than the hon. Gentleman. I think it is a very sad state of affairs when a Scottish hon. Member comes here and suggests that a fellow justice of the peace, in certain circumstances, could not be relied upon to discharge his duties without any motive of self-interest, and I hope the hon. Gentleman will take these words to heart, because he must reflect that such a suggestion may very likely prove to be a boomerang. He is at once calling down similar criticisms upon other justices of the peace in Scotland, and perhaps elsewhere.

Clause, as amended, ordered to stand part of the Bill.

Photo of Mr Henry Hynd Mr Henry Hynd , Accrington

As this is the first occasion when my hon. Friend the Parliamentary Secretary is appearing at the Box in his expanded capacity, that is, covering local government, may I take the opportunity of congratulating him on the extension of his responsibilities, and also congratulating the Department on having such a suitable Minister so readily at hand? With his magnificent experience of local government on the Welwyn Garden City Urban District Council, the Hertfordshire County Council and in the wider spheres of local government, I can think of no hon. Member of the House who could so well fill that important office.

The subject I wish to bring before the House may appear at first sight of local application only—though it has tremendous importance to a large number of my constituents—but I think hon. Members will find it of general interest, and possibly with much wider implications, particularly if it is looked at in the light of the fact that there is this hiatus between now and the general reassessment of property which, according to the latest announcement, is due to take place in 1953.

The question with which I am concerned affects 659 post-war houses in Accrington, at three sites at Willows Lane, Richmond Road and Fern Gore Estates. Those post-war houses were assessed by the Accrington Corporation in the normal way in 1948. Unfortunately, Accrington is not yet a county borough, and in this and similar respects they are always subject to the overriding authority of the Lancashire County Council. About 12 months later the Lancashire County Council said, "These assessments are not high enough", and they tabled proposals for higher assessments.

I do not complain that the county valuation officer, in so doing, exceeded his right and, indeed, his duty to seek more uniformity as between the different rating areas of the county, but I ask the House to note the date on which this action was taken. The county valuation officer tabled those new proposals on 25th March, 1949, which means, that under the 1925 Rating and Valuation Act, those proposals had a retrospective effect automatically until the beginning of that financial year. In other words, they would take effect from 1st April, 1948.

It may be considered as very smart work on the part of the county valuation officer to get an extra year at the higher rateable value. I would describe it as slick. I object straight away to what I regard as sharp practice on the part of the county valuation officer in coming along, in the last week of the financial year, and making proposals which back date for 12 months.

Hon. Members can imagine what the effect was on the tenants concerned. I wish to emphasise that this action was taken under the 1925 Rating and Valuation Act and not, as certain people locally have been suggesting, under the 1948 Local Government Act. It was the 1925 Act which had this retrospective effect and which has caused all the trouble. Alarm and despondency was caused not only among the tenants, but also among the local authorities affected. It was not the tenants but the local authorities which lodged objections in the first place to the higher assessments.

Certain assessments at Bacup were taken to quarter sessions. The decision went against the Bacup Corporation and the Bacup assessments were confirmed. The local assessment committee concerned which is the Hastinglea local assessment committee which covers the towns of Accrington, Bacup, Haslingden and Rawtenstall, had postponed the hearing of the objections to the original proposals pending a settlement of the quarter sessions case on the Bacup assessments. That was a perfectly natural thing to do, but it meant that there was delay in deciding what these new assessments were to be.

There was further delay caused by the operation of the 1948 Act involving the change over to the new procedure under which the valuation officer of the Inland Revenue Department comes into the picture. He automatically had to take ever the functions of the county valuation officer. These delays meant that the matter was dragging on, and if the assessments were to be confirmed the arrears were piling up. There was further delay until eventually, on 16th October, 1950, the local valuation court heard seven test cases, representing various types of houses.

Therefore, we had that time from the first proposals on 25th March, 1949—one and a half years ago and, with retrospective effect, a total of two and a half years—during which arrears were piling up. It is obvious that this delay was vexatious. It was unfortunate and it meant a further burden if the assessments were to be confirmed; but this delay was in no way the fault of those tenants. That point is most important when we consider the validity of their complaint. At the local valuation court the case was handled on behalf of Accrington Corporation by the borough treasurer acting, in effect, in the interests of the tenants. In my opinion, he put up a splendid case on their behalf.

The net result of the deliberations of the local valuation court, added to subsequent negotiations, was that of 464 cases involved. 310 had £1 taken off the proposed new assessment; 357 had decreased gross assessments which does not affect their actual payments but does affect the assessment of their water rates; and in the other cases the assessments were confirmed. In most cases there were increases ranging up to Is. 10d. a week in the inclusive rent—that is, rent plus rates —and the arrears amount in most cases to about £12 for each tenant. It will be agreed that £12 is a considerable amount for a working-class family to find in these days. It will cause considerable hardship if it is enforced.

The local council, who have been acting all the way through up to now in the interests of the tenants, have tried to ease the position by offering them a spread-over of 18 months, during which this debt can be wiped out, but, even spread over 18 months, £12 is still a considerable sum. I think the tenants are justified in feeling that they have had rather a raw deal over the whole business. It is perfectly true that the tenants did have the right to appeal to the lands tribunal within 21 days after the hearing by the local valuation court, and it may be put up against them that they did not exercise that right. I am given to understand that they did not do so because they had decided, through their tenants' association, that the time had come when these cases could no longer be looked at individually, but that the matter had become one of principle which should -be decided as a collective matter of principle and not by taking individual cases to the lands tribunals.

This is where I come back to the peculiar position of the Accrington Town Council. They put up their borough treasurer to make a very good defence of the lower assessments, acting in the interests of the tenants. As a result of this decision, the council find themselves in the position of being forced to collect the increased rates from the tenants whom they have been defending up to now. The local council do not want to take this action and do not want to have the assessments of the houses increased, but they are bound, as agents of the county council, to take this action. Therefore, it is very unfortunate indeed, both from their point of view and that of the tenants affected, that they now find themselves faced with a collective protest from the tenants, who, under legal advice, are now refusing, I understand, to pay the increased amounts, as the only possible protest left to them.

The position is one which the hon. Member for Worcestershire, South (Mr. De la Bère), would describe as "thoroughly unsatisfactory." I am not certain what the Minister can do about it. I make no complaint at all about the attitude of his Department, or, rather, of the Ministry of Health, so far, and I acknowledge the very helpful letter which I received from the Parliamentary Secretary to the Ministry of Health some time ago about this matter, but it does seem to me that, in the first place, these new proposals should not have been tabled so far on in the financial year. Indeed, I think that, having got to that stage, it would have been far better to leave the re-assessment of that property until the general re-assessment that will take place all over the country, which was originally fixed for 1952 but has now been postponed to 1953.

If that postponement cannot take place, I suggest that, perhaps, either the whole or part of these arrears might very well be waived. I suppose that that would have to be done by the county council, but, anyway, I think there is a case for consideration either by the Ministry or by some sort of local arbitration, for the whole or part of the arrears to be waived. It may be that the Minister may have some other solution to propose.

The final question which I wish to put to the Parliamentary Secretary is whether this is an isolated case or whether similar action has been taken in other parts of the country; whether this is a widespread action on the part of valuation officers, or whether this is something peculiar to my own constituency and the surrounding districts, because, if it is, it emphasises all the more the injustice which I have been attempting to explain.

10.25 p.m.

Photo of Sir Harmar Nicholls Sir Harmar Nicholls , Peterborough

I am well aware that the hon. Member for Accrington (Mr. H. Hynd) has put forward a very detailed case that calls for a very careful reply from the Parliamentary Secretary, and therefore I shall not trespass for more than a minute or two on the time available to the hon. Gentleman. I think it is not a bad thing to add our hope from this side that the new Department responsible for housing is going to show some results that were lamentably lacking when it was under the hon. Gentleman's predecessor. It is rather a case of King Midas adjudicating in a case between two flautists; he heard the first, and gave the prize to the second. The hon. Gentleman's results likewise cannot be worse.

The hon. Member for Accrington seemed concerned about the dangers of retrospective legislation he showed how it had worked to the detriment of tenants and councils in this particular instance, and I hope he will have a satisfactory reply from the Parliamentary Secretary. The other point I wish to place on record is that assessments are dependent on the value of property, and I believe that, next to the shortage of houses, which is obviously the outstanding social evil of today, the cost of houses and the consequent rents are the next greatest evil. I hope that the new Department will bear in mind that great efforts are needed to keep down the cost of houses so that these assessments which are the subject of tonight's debate are not going to be too high.

I think this is not an inappropriate moment to reinforce our plea for more houses to meet the ever-growing lists by having slightly smaller houses. I do not want to trespass on the time which the Parliamentary Secretary ought to take in answering the very detailed point put to him by the hon. Member for Accrington, but I hope that when this debate is over he will keep the two propositions that I have presumed to underline well in his mind and in that of his right hon.Friend.

10.27 p.m.

Photo of Mr George Lindgren Mr George Lindgren , Wellingborough

I hope the hon. Member for Peterborough (Mr. H. Nicholls) will forgive me if I do not follow him too closely, but I would like to say how glad I am to hear from him that his policy for reducing housing costs is to reduce housing standards.

Photo of Mr George Lindgren Mr George Lindgren , Wellingborough

The hon. Gentleman is not going to get me away from the point raised by my hon. Friend through that interjection.

I am sure that my hon. Friend, whom I thank for his kind remarks at the begin, ping of his speech, will not expect me to deal with the question of the merits or otherwise of a particular assessment. All I can deal with is the machinery for arriving at these assessments, and the machinery used in this particular case was the Rating and Valuation Act, 1925, the valuation principles of which remain in operation right up to the time that the 1948 Act becomes fully effective in 1953. The machinery which was in operation when this first arose, consisted of the local rating authority—the borough council—and the county valuation committee and had the responsibility throughout the whole period to see that there was uniformity of assessment in order that there should be fairness as 'between one ratepayer and another.

In the opinion of the Lancashire County Council rating valuation committee, Accrington had been unfair to other ratepayers in the county by assessing these council houses at too low a rate. Therefore, inasmuch as these people were thereby not only paying less for their own local rate in Accrington, but also a lower proportion of the county rate for the services over the whole county, it was their duty to call attention to this lower assessment, and to give to the body who had the right to determine whether it was correct or not—then the local assessment committee—the opportunity to decide whether the local rating valuation committee—the borough council—or the county council were in fact right in their assessment.

That was put to the assessment committee, as my hon. Friend said, in March, 1949. When it got to the assessment committee for hearing, the committee appreciated that there was another case for the Bacup area in which a similar set of circumstances arose. There the matter had been taken to what was the appeal court for the assessment committee, the Quarter Sessions. Quite rightly, the local assessment committee said that as there was then a similar case or set of cases before the Quarter Sessions which would in fact be a test case, it would defer the hearing until the decision of the Quarter Sessions was made, and that in the light of that decision these appeals would fail or succeed.

Then came the Quarter Sessions hearing and the county valuation committee's opinion of values in the Bacup case was upheld by the Quarter Sessions. That, in the opinion of the local assessment committee determined the line of action likely to be taken in these cases from Accrington. But in the meantime the machinery of valuation had changed. I make this point—just the machinery of valuation had changed. The machinery of the 1948 Act came into operation on 1st February, 1950. That machinery provides that the old county valuation committee goes out, and in fact the valuation officer of the Board of Inland Revenue takes responsibility for valuations throughout the area. Instead of the assessment committee, there is set up the local valuation court to hear questions of differences of opinion.

As in fact the assessment committee's hearing in this case had been deferred, then it was the plain duty of the Board of Inland Revenue's valuation officer to take the case to the new court for decision. That procedure did not take place until 16th October, 1950, when in fact the decision was made that the county valuation committee's original valuation, which was the subject of the appeal, was fair and reasonable, generally speaking. Certain variations were made in the proposals, but in the main they were upheld.

Now I arrive at the point to which my hon. Friend referred, that of taking the re-assessment back to 1st April, 1948. Surely that is right, because what, in fact, had the Lancashire County Council's valuation committee said? It said that these assessments were too low, and because of that these people were paying less than their fair share towards the cost of local government services throughout the county. For one reason or another, the hearing of the county's claim had to be deferred. My hon. Friend said that that is not the fault of the tenants; I agree, but I must point out that it is also not the fault of the county. The delay could have been the fault of the tenants, because, if they had not appealed, the new valuations would automatically have come into force when the assessment was made.

Photo of Mr Henry Hynd Mr Henry Hynd , Accrington

The council appealed.

Photo of Mr George Lindgren Mr George Lindgren , Wellingborough

Yes, but in fairness it should be pointed out that, it having been decided that the assessment was wrong, it was right that it should go back to the time that the proposal to alter it was made. Under the Act of 1925, the new assessment applies, irrespective of the time the actual appeal is made, back to the commencement of the financial year in which the proposal is made.

Photo of Sir Harmar Nicholls Sir Harmar Nicholls , Peterborough

Could the Parliamentary Secretary tell us whether the council have the power to remit the accumulated reserves?

Photo of Mr George Lindgren Mr George Lindgren , Wellingborough

It amounts to this; some people are paying too much or too little in relation to other people, and if one remits to some, one is placing an unfair burden on other persons in the particular locality. This rule of taking back the coming into effect of the new assessment to the commencement of the financial year applied in the 1925 Act, and applies in the 1948 Act, and it applies whether there are increases or decreases. If people have had a decrease in rateable value, then there will be a refund and this principle must equally apply if the assessment goes up. In such cases where, in fact, one had block decisions in the main going before the assessment court prior to the war or during the war years, these were mostly appeals by individual ratepayers against too high assessments and seldom was there an appeal by a local authority for a general re-assessment.

I think that was a correct thing to do. My hon. Friend asked if this was an isolated case or whether it was one which could be found generally over the whole country. Let us be quite clear. It has been the responsibility of the local authorities to apply the 1925 Act; it was the responsibility with the old county valuation officer and it is the responsibility of the valuation officer of the Board of Inland Revenue. To suggest that until the new Act comes into operation no one should be concerned about the fairness of one ratepayer's case compared with another in the incidence of valuation is, I submit, taking things a little far. Counties had in the old days, and the Board of Inland Revenue inspectors have now, to apply the Acts as they exist and where there is unfairness, then the applicants are met. It is not altogether usual to get group cases such as this but they do arise because of differences of opinion between a minor authority and the county council over what is considered to be the proper valuation.

To the hon. Gentleman the Member for Peterborough (Mr. H. Nicholls) I would make the point that this is not a question of retrospective legislation. It is, in fact, a question of the operation of an Act of Parliament which does say that where there is a change in value it should date back to the commencement of the financial year, unless a change in value arises involving a physical change in the condition of the property such as an additional room or garage. In such cases the altered assessment takes effect from the date of the physical change.

I am afraid I have not been able to give my hon. Friend the Member for Accrington (Mr. H. Hynd) much change in reply to the excellent case he put on behalf of his constituents, but I have tried to make it clear that in fact the Lancashire County Council and the valuation department of the Inland Revenue have, in so far as it is within their power, applied the Acts of Parliament in fairness to all ratepayers within the county of Lancashire.

Question put, and agreed to.

Adjourned accordingly at Twenty Minutes to Eleven o'Clock.