HC Deb 15 April 1937 vol 322 cc1296-305

9.37 p.m.

Mr. Garro Jones

I beg to move, in page 14, line 12, after "assistance," to insert "exceeding fifty per cent. per annum."

This Amendment is designed to restrict the operations of this Clause in view of the danger of unreasonable demands being made under the authority of the Clause upon local or harbour authorities. This Clause empowers the appropriate Department to require any harbour or local authority to whom a grant or loan of any kind has been granted to execute works designed to restore that harbour to an efficient condition and a proper state of repair. The important aspect of the Clause is that whatever the assistance by way of loan or grant that may have been given to the harbour or local authority, the appropriate Government Department is for ever afterwards entitled to require that authority to carry out works of repair on the most extensive scale. I realise that in subsequent provisions there are certain rights of appeal which entitled the harbour or local authority to appeal to the sheriff, and the sheriff has power either to cancel the requisition or to modify it.

I would submit, however, that that is not an adequate safeguard having regard to the fact that local or harbour authorities are generally very responsible bodies, in many cases as responsible as the appropriate Department which may call upon them to execute these words. Under Clause 31 the appropriate Department which is vested with these great powers means, as regards any marine work, the Fishery Board for Scotland or the Department of Agriculture for Scotland, according as the Secretary of State may nominate. It is a reasonable request that the appropriate Department should not be invested with these powers unless the grant or loan which has been made by the State exceeds 50 per cent. of the cost of any given work.

I should like to comment upon the rather anomalous and inconsistent attitude of the Government when dealing with local authorities in comparison with their attitude towards private organisations to which State money is granted. We repeatedly find examples of vast sums being paid to private organisations and the Government are not concerned to impose any restrictions upon them. Here, however, if they give a pound towards the execution of some harbour work, they seek power for ever afterwards to require the harbour or local authority to execute vast works of repair or renovation. It seems to me reasonable and more appropriate to the standing of the authorities that they should not be liable to be called upon to execute these vast repairs unless the State has made more than 50 per cent. grant or loan. I trust that the Lord Advocate will not refer me to the safeguard of appeal to a sheriff because, after all, a sheriff is only a private individual. The local authority is a publicly elected body capably advised by the most eminent professional advisers, and responsible in many cases to the public for the administration of public money.

Mr. R. Gibson

I beg to second the Amendment.

9.42 p.m.

The Lord Advocate

Before addressing myself to the arguments on this Amendment I should like to inform the House of one or two facts which I did not have available when this point was discussed upstairs, but which it is desirable to have as a kind of background to our discussion. I have obtained particulars of the actual grants and loans provided either by the Fishery Board for Scotland, or the Development Commissioners, or the Department of Agriculture for Scotland during the last three years. Without going into the matter in detail, I think I can accurately summarise the situation when I say that out of some 35 or 40 cases the commonest percentage of grants, as far as I can see from glancing down the list, is 100 per cent. It is only in one or two isolated cases where there is a special extension to be made, as for instance at Stornoway, where a special extra grant was made, where the figure falls below 75 per cent. A typical figure is 75 per cent., in other cases it is 85 per cent., and in many cases 100 per cent.

Mr. Johnston

Are there any under 50 per cent.? If not, would it not be very easy to accept the Amendment?

The Lord Advocate

I will deal with that in a moment. There is one case where the percentage is 47 and one case, which is footnoted as a special case—Stornoway, a very large undertaking—where a special grant of 10 per cent. of the total expenditure was made. These were exceptional. In all the other cases the lowest figure I can find is 65 per cent. With these figures at the back of our minds, it is not much good arguing that if the Government give a shilling to a harbour authority we assert the right to insist on repairs in the future. The fact is that in the normal case, when the Government give anything at all, they give a very large proportion of the cost of the particular operations. Putting that aside, I will come to the Amendment. The real difficulty is to accept any percentage figure in relation to an operation which varies so widely. If the Amendment were accepted the Clause would read: Where any assistance exceeding 50 per cent. by way of grant or loan. The difficulty is that normally grants are given not for entirely new construction but for improvements and repair work, and I have a great difficulty in deciding in my own mind what it is of which you are to take 50 per cent., because as the years go by there may be a pier or harbour with a patch here to which the Government contributed £10,000 and a patch there to which the Government contributed £500, and in 10, 15 or 20 years would it be possible to say as regards any harbour or project what percentage of assistance had been given? Should we have to look at the harbour as a whole, or regard each operation separately; and are we to build up a kind of history of the works and the sums expended on them and the proportions in which they have been contributed by the harbour authorities and the Government? I am confident that that system would not work, and for that reason that we have pinned our faith throughout this discussion to the method in Sub-section (2), which seems to provide all the safeguards required, of appeal to the sheriff, with a power and duty on the part of the sheriff to take into consideration all the circumstances of the case in determining whether or not it is appropriate that a requirement sought to be imposed on the local authority must be complied with. I think that is the correct method of dealing with the matter, and that the attempt to apply an arithmetical percentage to an undefinable factor must really fail.

9.48 p.m.

Mr. Garro Jones

The same difficulty which the Lord Advocate envisages in respect of this Amendment will be encountered in deciding whether assistance of any kind has been given to the marine work, because the marine work is not defined as meaning the whole comprehensive work, but may be a part of the marine work, such as a pier, ferry or boat slip, and there may be half-a-dozen piers, ferries or boat slips. However, I do not wish to press this matter, and, therefore, with the permission of my hon. and learned Friend, I will not carry it to a Division.

Amendment negatived.

9.50 p.m.

Sir A. Sinclair

I beg to move, in page 14, line i8, after "that," to insert: "apart from damage due to storms of exceptional severity."

This is the first of three Amendments standing in my name, and I understand that it will be in accordance with your wish, Mr. Speaker, and with the wish of the House if I consider as one proposal this Amendment and the two others which follow. The position under this Clause is that once assistance has been given by the Government it will be the right and, indeed, the duty of the Department to see that the work upon which public money has been expended is properly maintained, and it throws upon local authorities which accept assistance the responsibility for keeping the work permanently in proper repair. It frequently happens that on what the Secretary of State has called the rock-bound coasts of the far North of Scotland we get very heavy storms. In each of the last two years very serious damage has been done to the harbour of Lossiemouth, and many other harbours have also suffered tremendous damage. The fear is that there may be some wholly exceptional storm which will almost destroy a particular harbour and the local authority will then be faced with a tremendous bill for its repair. The Lord Advocate says the safeguard to a local authority is contained in Sub-section (2), that if the demand of the Department is excessive the local authority can appeal to the sheriff, and the sheriff, taking all the circumstances into account will see that it is not hardly used.

We carried the argument so far when the Bill was discussed in Committee, and the Secretary of State then invited me to communicate afresh with the Associations of County Councils of Scotland, who had already raised this point, and inquire whether they were not satisfied with an Amendment which he himself had introduced to strengthen Sub-section (2) and also with the assurances which the Lord Advocate gave to the Committee. I have done so, and I understand that the Secretary of State has also done so, and I find that the local authorities are still not satisfied. The Secretary of State rightly said that the Lord Advocate is the greatest lawyer in Scotland, and he is so regarded by local authorities and people all over Scotland, but even the greatest of lawyers may find himself in a minority, may find that the judges take a different view. If there is any doubt about the interpretation of a Measure we often find the judges differing, even in the Court of Session of Scotland, and the local authorities are afraid unless this Bill is made abundantly clear that a majority judgment may be given against them and the opinion of the Lord Advocate may not be upheld. Therefore, they wish the matter to be put beyond peradventure.

The Lord Advocate said that the ordinary grant given by the Department to harbours was one of 100 per cent., and he quoted from a list of harbours. Is that list confidential, or could it be laid before the House or put in the Library, because it is certainly not in accordance with my experience that the normal grant which a harbour receives is as much as 100 per cent.—not nearly as much. If, for example, there is a harbour which is worth £100,000 and the grant given is 50 per cent. or 75 per cent., the remaining £50,000 or £25,000 may prove to be an overwhelming burden for the ratepayers in the locality. Local authorities want to be quite certain that when their case goes to the sheriff he will not only consider it from the point of view of whether the repairs required by the Department are reasonable in themselves, but also take into account whether the burden of the expenditure involved will not be an unreasonable one to throw upon a small and impoverished community.

In short, will the sheriff say when he receives the demand of the Department, when he is considering the scheme of the Department for the repair of the harbours, "Well it is a very reasonable scheme; the Department has obviously taken every Measure to reduce expenditure to the lowest possible level consistent with the efficient reconstruction of the harbour. It is the most moderate and reasonable scheme which the Department could have devised if the harbour is to be put once more into a proper state of repair. That being so, whatever it costs the ratepayers, I must put that burden upon them. They have undertaken the responsibility for the maintenance of this harbour, and, provided I am satisfied the Department has exercised all possible care to keep the cost of reconstructing down, I must call upon the local authority to foot the Bill." Or will he say "I will not only consider whether the proposals of the Department are moderate and whether they have reduced the cost as far as possible, but I will also consider whether it is wholly exceptional damage caused not by any ordinary storm but by some thoroughly exceptional storm."

What I have said in my first Amendment is "apart from damaged caused by storms of exceptional severity." Let the sheriff have power to exclude storms of that kind. Let that be a qualification of the general undertaking the local authority is accepting in this Bill. Also let the local authority not have to undertake any new construction. For example, the Department might say "Properly to safeguard the structure of your harbour you must build a breakwater." Let them be safeguarded in that event. The third of my Amendments would ensure that when the sheriff is considering the scheme of the Department for the reconstruction of the harbour he will quite definitely take into account the vital question of cost, involving what might be an almost intolerable burden upon the ratepayers of that locality.

9.59 p.m.

Mr. Garro Jones

I would like to utter one or two very brief comments upon the proposal made by the right hon. Gentleman the Member for Caithness and Sutherland (Sir A. Sinclair). I entirely approve of the object of this triple Amendment but I would like to point out that the first and last of the three proposals might have been more carefully considered by the right hon. Gentleman. I make this comment only in the hope that it will assist the Lord Advocate to achieve the object that I am sure we have jointly in view. The first exception the Amendments would make is that it would except damage due to storms of exceptional severity. A storm of exceptional severity may do very small damage and a storm of moderate severity very large damage. We have in the area which I and my hon. Friend represent several sea walls and this winter a sea wall was severely breached by a storm of exceptional severity, but the damage involved was almost negligible from the point of view of the resources of the harbour commissioners. Therefore, I would say some more carefully chosen words would be desirable. I would make a similar comment in regard to the last of the three proposals. It asks the sheriff to have regard, inter alia, to the cost involved. Would it not be wiser not to have regard to the cost involved but to the resources of the local authority? A small cost might be a large burden on one authority and a large cost might be a small burden on another authority.

Sir A. Sinclair

Perhaps the hon. Gentleman would allow me, while I accept with becoming humility the rebuke for not giving greater care to these Amendments, to assure him that in drafting them I received advice from the Association of Local Authorities in Scotland, which is composed of very practical men who know the circumstances, not only in Aberdeen but in the ports which do in fact come under the Bill.

Mr. Garro Jones

This is a matter of common sense. I quite appreciate the right hon. Gentleman's intention to transfer the responsibilities for these proposals to the local authority, but nevertheless what I have said stands. It is perfectly clear there is reason in the comments I have made, and I made them not with the object of rebuking the right hon. Gentleman but to strengthen his plea. Therefore I hope the Government will in some way give additional safeguards to the harbour and local authorities.

10.3 p.m.

The Lord Advocate

With the permission of the House I shall deal with the three Amendments together, as the right hon. Gentleman has done, as they are all directed to obtaining the one object of ensuring that no undue burden will be placed by this Clause on the shoulders of the local authorities. The suggestion I have to offer is to concede something, not perhaps in the language he has used, but in substance the third of these Amendments. I have previously stated that according to my conception it will be the duty of the sheriff to have regard to all the circumstances of the case, including the cost involved in relation to the resources of the local authorities concerned. These would be inevitably considerations for the sheriff to take into account, but in order to meet the perfectly legitimate fears which are held, I should be prepared to insert the provisions that the sheriff should "have regard to all the circumstances of the case including the cost involved." If the right hon. Gentleman is agreeable I shall be prepared myself to move an Amendment in place of his third Amendment in that form, but having done that I still feel bound to resist the other two Amendments.

As regards the first Amendment, referring to damage due to storms of exceptional severity, the right hon. Member for Caithness mentioned the possibility of the judges of the Court of Session differing on a point of interpretation. I put it confidently that if we insert in an Act of Parliament a phrase like this imposing an obligation dependent on the existence or non-existence of damage due to storms of exceptional severity, we shall have gone a long way to ensuring that there will be a real difference between them when they have to apply their minds to such an incalculable factor as a storm of exceptional severity. I am obliged to the hon. Member for North Aberdeen (Mr. Garro Jones) for pointing out that it is not always the storm of exceptional severity which does damage, but I see in this case the possibility of controversy which it is undesirable to introduce into a Clause dealing with a liability of this kind. I would, therefore, press upon the right hon. Member for Caithness the desirability of leaving the contingency to the general discretion of the sheriff, extended in the manner which I have ventured to suggest.

As regards the second Amendment, if "new construction" means new works altogether, that will not arise under this Clause, which is limited, in terms, to operations dealing with repairs; but if by new construction the right hon. Gentleman merely means replacement and repair work the whole object of the Clause is defeated. I suggest that the first and second Amendments proposed on behalf of the County Councils Association, so far from being calculated to advance the object in view, might easily frustrate it, and I hope he will see his way to accept my amended form in place of the third Amendment.

Sir A. Sinclair

I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

10.9 p.m.

The Lord Advocate

I beg to move, in page 14, line 37, after "fit," to insert, "having regard to all the circumstances, including the cost involved."

Sir A. Sinclair

I have looked at this Amendment which the right hon. Gentleman has moved. We went over this ground on the Committee stage and I know the extreme difficulty of finding adequate words. We discussed different methods of attaining this object, and I am convinced by the Lord Advocate that there is no solution of the problem of defining exceptional storm damage. I think the only way is to adopt the Amendment which the Lord Advocate has proposed, to insert the words "having regard to all the circumstances, including the cost involved. "That entirely meets the view which I expressed and I very gladly accept it.

Amendment agreed to.