CLAUSE 30.—(Modification of local acts to provide for seaplanes.) (Hansard, 15 April 1937)

§ Mr. Foot
I beg to move, in page 23, line 3, to leave out "seem to him," and to insert "be."
It seems to me this Clause as it stands is open to objections. First, the Secretary of State is given power by order to modify or adapt the provisions of Acts of Parliament. I appreciate that the objection is not so strong since they are only local Acts, but even so, it seems rather undesirable that the Secretary of State should have power by order, without any inquiries or representations from interested parties, simply to modify the provisions of an Act. It is also an objection that the power to make any adaptation or modifications that may seem to him necessary is one which gives the Secretary of State complete discretion. When he has exercised that discretion, it is impossible to challenge anything he has done before any tribunal whatsoever, because he is able to say that it seems to him necessary. I do not know why we are always getting Clauses such as this which are so widely drawn. There seems to be no excuse for it at all. It would remove some part of my objection if we cut out the words "seem to him" and say that the Secretary of State may make such adaptations and modifications as may be necessary in order to enable the use of these marine works by seaplanes.

§ Mr. Croom-Johnson
I am bound to say that in the last six or seven years I have watched Clauses in a large number, of Bills of this sort with growing apprehension. The Lord Advocate will acquit me of any desire to cause any embarrassment to those desirous of getting through a piece of local legislation of a very desirable sort. But the necessity of watching the power of the executive to amend legislation which has been discussed very carefully by committees and by this House is one which the House as a whole will desire to consider very carefully. It may be said of this Clause that "It is only a little one," to use the language of 1306 Captain Marryat in a well-known work, which we all read in our youth, about the small child born under a cloud. I do not think that this sort of Clause ought to pass time after time without some attention being directed to it, not only by those who in normal circumstances oppose the Government's programme but also by the Government's friends.
I hope that it may be found possible to give consideration to this particular Clause, so that it will not be left merely to the discretion or the ipse dixit of the particular Minister involved, however we may feel that he will be careful to see that what is being done is done with particular regard to the protection of things which people desire to protect. I hope also that he will be very careful to see that the Clause does not go through again and again, without giving individuals who think they may want to make some general amendment in the law an opportunity of uttering their opinions in the place where those opinions ought to be uttered, upon the Floor of the House of Commons, as distinct from making recommendations to Government Departments. It is for that reason only that I think it is desirable, as one of the few English Members who have ventured to intervene in what is, I gather, a Scottish occasion, to call attention once again to the point, to which I have called attention more than once during the time that I have been a Member of this House.

§ Mr. Malcolm MacMillan
This is said to be an enabling Bill, but so many disablements or potential disablements are included in it that we cannot let it pass unchallenged. The Secretary of State may, under this Clause, by order apply these qualifications and adaptations, and it may be a rather costly business for the local authority concerned, particularly in the North of Scotland, where the local authorities are among the poorest in the country. I should like to see some sort of Amendment included. Throughout the Bill we have provisions for consultation with the Minister of Transport, the Board of Trade, and so on, but here is no mention of consultation with any other Minister in the matter of adapting and modifying the provisions of a local Act applying to a marine work, in order to facilitate the use by seaplanes. There should have been provision for consulta- 1307 tion with the Board of Trade and possibly with the Ministry of Transport. The local Act must have been regarded as necessary by Parliament when it was given effect to. Local opinion is the very thing that should be consulted, and this is the place where local opinion should be consulted. I hope that some sort of alteration will be made by the Secretary of State.

§ Mr. Henderson Stewart
I do not follow the arguments of the Mover of this Amendment. I should have thought that the purpose of the Clause was to facilitate the action desired by local people. I can imagine in my constituency some modification of the harbour works being desired to meet the requirements of aviation, and the harbour authority or town council seeking some change in the local Act, but being unable to effect that change without going through most cumbersome procedure and coming to this House for the necessary legislation. They seek some easier way to get what they want and so they approach the Scottish Office. As I understand it this Clause would give the Secretary of State power to grant their request without delay or expense. Its effect therefore will be not to hinder or interfere with local authorities but rather to help them. Surely that is a desirable thing.

§ Mr. Foot
May I explain that the Amendment is to leave out the words "seem to him," and to insert the word "be"? It will still be open to the Secretary of State to make adaptations or modifications by Order, but they will have to be modifications which are actually necessary, and not merely modifications which seem to him to be necessary.

Mr. Stewart
I do not see how it is possible to know whether a thing is or is not necessary unless it seems to be necessary.

§ Mr. Foot
The courts will decide.

Mr. Stewart
The Secretary of State is to make this decision to meet the will of the local authority, and he must be persuaded to regard it as necessary. I should have thought that the Clause would be weakened by this Amendment.

§ Colonel Gretton
If I may, as another English Member, intervene for a few 1308 moments in this Debate, it is somewhat startling to see these drastic and practically unlimited powers being conferred upon the Secretary of State to override legislation and to decide by his own fiat, without challenge or question, that certain alterations have to be made in previous enactments of this House. I do not understand the intervention of the hon. Member for East Fife (Mr. H. thing which is apparently not there. He says that the Secretary of State is to act Stewart). He reads into the Clause something which is apparently not there. He says that the Secretary of State is to act on the motion of local authorities, but there is nothing of that kind in the Clause. One recognises that, with new developments in transport, and particularly the importance of an aerial defence, some action may have to be taken in certain directions, and one would not oppose this Clause as a matter of high principle; but I regard it is an encroachment on the part of the Executive that they should have power to modify legislation of this House. The acceptance of this Amendment would mean that the Secretary of State, instead of having unchallenged power, would have to exercise his powers on reasonable grounds, which might be challenged elsewhere, possibly in the courts. It is only a drafting Amendment, and I hope that the Government will be able to give it serious consideration and to meet the opinion which has been expressed that these powers go rather too far, and are more than is necessary.

§ The Lord Advocate
I shall be very glad, on behalf of the Government, to accept the Amendment which the hon. Member for Dundee (Mr. Foot) has moved. I think a certain amount of misconception prevails in some quarters as to the purpose and effect of this Clause. With reference in particular to the remarks of the hon. Member for the Western Isles (Mr. M. MacMillan), I would like to point out that the whole object of Clause 30, either in its original form or as it will be if this Amendment be accepted, is to save expense to the small harbour authorities, and to avoid the necessity, which would otherwise be incumbent upon them, of applying by Provisional Order or Private Bill for an amendment of their local Acts. I think the House has possibly overlooked the 1309 fact that in Clause 10 (2) of the Bill we extended the old Act of 1847 so as to include seaplanes, and that in a Clause which we have not yet reached, Clause 31, we defined the term "vessel" so as to include a seaplane. The whole purpose of Clause 30 is to enable the Secretary of State to make such consequential amendments in local Acts as to bring them into conformity with this Act when it is passed.
I feel that in this case the English Members, whose intervention we so cordially welcome, have attributed to the Government motives which are quite aside from the question of principle, to which they have properly directed their attention. This Clause is more on a parallel with Clauses to be found in the Local Government Act, 1929, with provisions to the effect that various local water rating Acts should be amended to bring them into conformity with the new de-rating provisions. You have to do it that way, because by any other method the Schedules to the Bill would be greatly extended.

§ Sir A. Sinclair
With reference to the criticisms of the hon. Member for the Western Isles (Mr. MacMillan) of course it is true—and no one that I have heard has said anything to the contrary—that this Clause as amended by the Lord Advocate might be very usefully employed in co-operation between the local authorities and the Secretary of State, and in so far as that is the use that is going to be made of it we welcome it. But as it was originally drafted, it would have been possible for the Secretary of State to do anything that seemed to him necessary whether he had the co-operation of the local authorities or not. The Lord Advocate suggested that he was only going to work in co-operation with local authorities, but there is no safeguard of that sort in the Bill as it stands. We very much welcome the courtesy of the Lord Advocate in accepting the Amendment and we think it is a real improvement to the Bill.