Examination of Witnesses (Questions 4060
- 4071)
4060. That brings me back to the discussions
of law—and I know that although lawyers get very interested
by these things sensible people do not. Can I deal, I hope fairly
and accurately, with the points that my learned friend has made?
My learned friend says that we are in Section 10 of the Compulsory
Purchase Act 1965—that is common ground. He says we can
get compensation for loss of profits by reference to the loss
of value of land. As we demonstrated in the evidence, the leases
held by the market traders are effectively very small value leases.
You have seen their ten-year leases, you have seen the values—that
is all in the evidence—and the scheduled works 2008 starting
in the Smithfield area is about two years before the expiry of
the lease. What that means is that we do not even come within
the qualifying schedule for entering into a settlement deed. Our
property interests are so limited, albeit protected by the 1954
Act, that the value of the land we hold is almost worthless. Of
course, what my learned friend cannot deal with was the example
I gave you yesterday: the dust suppression measures do not work,
dust gets into the market, the meat is contaminated and condemned,
who is going to pay for that? Answer: not the nominated undertaker
under the Compulsory Purchase Act 1956 because that does not relate
to the value of land. What does that mean? Off to the common law
action in nuisance. What does that mean? What I submitted yesterday
and what in my submission is plainly the case, that the only people
who will benefit from that are lawyers, and in my submission it
is not the function of Parliament to enrich lawyers any more than
they are already.
4061. That brings me to the Human Rights Act
point. All I cited yesterday was S v. France and Dennis
for the proposition that a fair balance needs to be struck between
the interests of the Promoter and the public protected by them,
and the interests of the market traders. But the striking of the
fair balance is not something that is for the courts to do; the
courts do it by default. But this is what was said in Trailer
and a paragraph cited with approval by the Court of Appeal: "Courts
should have in mind that theirs is a reviewing role. Parliament
is charged with the primary responsibility for deciding whether
the means chosen to deal with a social problem are both necessary
and appropriate. Assessment of the advantages and disadvantages
of the various legislative alternatives is primarily a matter
for Parliament," which is why we are here asking you to take
into account. We respectfully say that we have identified all
the problems the market traders have under the Acts which generally
will work well. We have very minimal land rights; we are not in
a position where any of our land is being taken, so we are not
protected in that situation. We have works going on below us and
we have works going on beside us. We have a whole series of undertakings
that have been offered for our specific protection which, when
they do not work, will be worthless in the sense that we will
not be able to get money for any breach of them. We might have
uncertain remedies of approaching the Secretary of State for enforcement,
Judicial Reviews, claims for damages in nuisance to try and show
the breach of the common law duties. We do respectfully ask the
Committee to bear all that in mind and to consider seriously the
three proposals we have made. The first is, as you know, that
these undertakings are offered and exchanged with the market traders
and, as you know, there are 36 of them. The alternative is to
ensure that the Promoter offers an undertaking that these undertakings
can be enforced by those market traders under the Contracts (Third
Party Rights) Act. That was the whole point of the Law Commission
Bill; it was very unfair to have contractual provisions for the
benefit of one party who is not the party who can enforce it.
All we are trying to do is meet an anomaly which has already been
recognised publicly by the Law Commission and by Parliament in
1999 in the Contracts Act. The third possibility, which we press
for independently, is the limited compensation provision. My learned
friend says the Railway Clauses Act is applied by the National
Compensation Code. Of course that is right, but the effect of
the clause, we have suggested, is to give us a right to claim
under it. Under the existing law, under those provisions we do
not have that right because there is no taking.
4062. So those are the respectful points we
continue to urge on behalf of the Association. That said may I,
as I think I have already indicated, thank the Promoter for all
the undertakings which have been offered and which are recorded
in P50.
4063. That leaves me with one final point, which
I have discussed very briefly with your clerk. I am afraid it
is another nightmare area, which is the question in relation to
costs. There are at the moment real issues and interesting comments
about whether or not a Committee such as this even has power to
order costs, and just for your learned clerk's note Erskine May
deals with it at paragraph 533, page 1061, and I know that those
provisions have been drawn to your attention. The matter is also
helpfully summarised in the explanatory notes to the Parliamentary
Costs Bill. If you do have the power then we do ask that you do
take into account and consider whether it would be appropriate
to order any sum, or even a proportion of the sum to take into
account the fact that we have come here and we have obtained undertakings.
Although, as was made plain in the evidence, financial resources
amongst market traders vary and the turnover can be significant,
not all of them are in the situation that they are able to afford
that easily. Those are our submissions.
4064. Chairman: Thank you. Can I just
say that we do not know whether or not under the Hybrid Bill terms
that it actually applies? We will check on this and we will get
back to you, either in our response on the report—indeed,
as well as that we will write to you to let our judgment on that.
But we have to check.
4065. Mr Dingemans: I certainly understand
that, sir. May I say that while my learned friend was reading
French last night we were trying to find out what powers you do
have, and I am afraid none of us were much better informed.
4066. Chairman: As I understand it in
the Act it is only where the Committee may decide that you had
been unnecessarily called in defending your Market Tenants' Association.
4067. Mr Dingemans: If, which is uncertain,
the Parliamentary Costs Act 1865 applies to the Hybrid Bills then
what I need to do is show two things. First of all, that there
has been an alteration for the protection of the Petitioner, and
we would submit we have shown that because of the undertakings.
The other thing is that the Petitioners have been unreasonably
or vexatiously subjected to expense. We do not promote the suggestion
that there is any vexation here, but we do respectfully submit,
taking into account all the matters, that we have had to engage
our experts to review what has happened, and other ways to suggest
Lindsey Street. Before we had even started there was not even
an undertaking to keep anything at Lindsey Street open. Of course
that is not vexatious and of course it just reflects the very
hard work that has been done by the Promoter, but we would respectfully
submit that that is an unreasonable expense that the Petitioners
had to bear. Those are our short submissions as to if there is
power, on which, as I say, better minds will be working.
4068. Chairman: Mr Dingemans, without
prejudice in any way I do not think any Member here is unsympathetic,
but we do not know whether it applies or whether we have the powers.
But we will get back to you.
4069. Mr Dingemans: Thank you very much.
4070. Mr Elvin: Sir, might I just say
something about that? I think this is probably one of those issues
that we will address you on comprehensively at the end of the
Committee hearings in our final closing, but we have our doubts
that this applies to the Hybrid Bill procedures. In any event,
alteration in the Parliamentary Costs Act, our view, for what
it is worth at this stage—and I am doing it on the hoof—is
that that means an alteration in the Bill, not simply the giving
of an undertaking. So if the Committee were satisfied that no
amendments needed to be made to the Bill then of course the jurisdiction
would not be invoked in any event. Sir, I think the best thing
to do, rather than my address it on the hoof, is to deal with
it, if that is convenient to the Committee, when we finally close
at the end of the hearings. If you would like me to deal with
it earlier of course I will do so.
4071. Chairman: I think that is very
helpful. Thank you very much. That concludes today's hearing and
we will next come together on 8 March at 10 a.m.
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