HC Deb 24 May 1939 vol 347 cc2411-20

8.42 p.m.

The Lord Advocate (Mr. T. M. Cooper)

I beg to move, in page 56, line 41, to leave out "not exercise," and to insert "before exercising."

This Amendment should be read with the Amendment which immediately follows, and the purpose of the two Amendments, read together, is as follows. Under Part II of the Bill, which deals with the designation of shelters, in Scotland the local authority in a small burgh is the small burgh itself and not the county council as is the case in England. Obviously, it is essential that there should be a measure of co-ordination between the county council and the small burgh which would be exercising the functions under Part II of the Bill. As the Clause is drafted, provision is made for the small burgh to exercise its functions only with the consent of the county council. As a result of representations and discussions based upon the type of questions to which my hon. Friend the Member for East Fife (Mr. Henderson Stewart) referred a little earlier in the Debate, a compromise has been reached by substituting for the consent of the county council a provision that there should be consultation. I think that will meet the type of difficulty to which my hon. Friend referred.

Mr. Henderson Stewart

This is an Amendment which, as the representative of a good many small burghs, I welcome with great pleasure.

8.44 p.m.

Mr. Westwood

Having some little knowledge of local administration in Scotland, I must say that this Amendment goes in the right direction, in that it will bring about that close action which is necessary at this time in regard to small burghs, and in county burghs, as I presume it will be necessary to have consultations with them. I assume that similar consultations may be necessary with the large burghs if we are to get the full benefits that ought to accrue as a result of consultations.

Amendment agreed to.

Further Amendments made:

In page 56, line 42, leave out "otherwise than with the consent of," and insert "consult with."

In page 57, line 30, leave out paragraph (f).—[The Lord Advocate.]

The Lord Advocate

I beg to move, in page 58, line 5, at the end, to insert: 'easement' means servitude; 'sell' includes feu. These are customary adaptations of English technical terms.

Amendment agreed to.

The Lord Advocate

I beg to move, in page 59, line 27, at the end, to insert "or of the common law."

This is the first of several Amendments all of which find their justification in this fact. In Scotland, the Dean of Guild court, which is the authority over building regulations and matters of that kind, in some instances derives its authority from the common law, apart altogether from express statutory enactments or bylaws. The Dean of Guild Court is, I should say, a feature of burghal administration.

Amendment agreed to.

Further Amendments made:

In page 59, line 40, leave out "conform to," and insert "comply with."

In page 62, line 25, at the end, insert: (13) In Section forty-six, Sub-section (2) shall be omitted."—[The Lord Advocate.]

The Lord Advocate

I beg to move, in page 62, line 38, at the end, to insert: and for paragraph (b) of Sub-section (7) there shall be substituted the following paragraph: (b) notwithstanding anything in Subsection (9) of Section thirteen of the Act of 1937, the provisions therein referred to of paragraph 4 of Part II of the Third Schedule to the Town and Country Planning (Scotland) Act, 1932, shall not apply. The sole purpose and effect of this Amendment is to avoid an unnecessary piece of legislation by reference.

Amendment agreed to.

Further Amendment made: In page 62, line 41, after "substituted," insert "respectively."—[The Lord Advocate.]

The Lord Advocate

I beg to move, in page 63, line 27, to leave out from "functions," to the end of line 4, page 64, and to insert: (b) where by an Order under this Section the Minister has transferred to himself any functions of a defaulting authority any expenses incurred by him in discharging those functions shall be paid in the first instance out of moneys provided by Parliament, but the amount of those expenses as certified by the Minister shall on demand be paid by the authority to the Minister, and shall be recoverable by him as a debt due to the Crown; and that authority shall have the like power of raising the money required as they have of raising money for defraying expenses incurred directly by them; (c) any Order made by the Minister under this Section may be varied or revoked by a subsequent Order made by the Minister, but without prejudice to the validity of anything previously done under the Order, and when any Order is so revoked, the Minister may either by the revoking Order or by a supplementary Order make such provision as appears to him desirable with respect to the transfer, vesting, and discharge of any property, debts, or liabilities acquired or incurred by the county council or by him in discharging any of the functions to which the Order so revoked related. Once again the purpose of this Amendment is to set out at length certain provisions which previously had been incorporated by reference to another Statute.

8.47 p.m.

Mr. Westwood

I think it right that in all Measures of this kind there should be a defaulting Clause and I have no objection to a Clause which gives power to the central authority to take action in the event of a local authority failing to do its duty for the purpose of defending, it may be, the lives of the people in its area. But there is a point on which I wish for further explanation. Powers are being taken here by the central authority to charge the local authority for expenditure incurred by the central authority in carrying out duties which ought to have been carried out by the local authority. There is no definite provision, however, for the payment of the grants which would otherwise have been earned by the defaulting local authority, against which is being charged the full cost of the carrying out of these duties by the central authority. I say, frankly, that an authority which does not do its duty cannot complain too much if it is fined for that default, but the burden may be too severe for the local ratepayers who will have to suffer for this lack of action on the part of their elected representatives. I would like it to be made clear that even if the work has to be done by the central authority, and the cost charged against the defaulting local authority, consideration will be given to the grants which would have been earned by the local authority if it had carried out its statutory duty.

8.50 p.m.

The Lord Advocate

The point raised by the hon. Member should have been raised on Clause 58 and not as a separate Scottish point, on the Scottish application of the Measure, but I do not press that technical objection. I am bound to point out, however, that under Clause 58 (6) and under the corresponding Scottish provision in Clause 74 which I now propose to amend slightly, it is part of the deliberate policy of the Bill that a defaulting authority should not have expenditure for work carried out on its behalf treated as ranking for grant. That has been passed by the Committee as regards England in Clause 58, and all that is proposed in the Amendment is that similar provision should be made for Scotland. I think it was made clear by my right hon. Friend the Minister of Health when we were discussing Clause 58 that the powers under that Clause were purely reserve and emergency powers and that there was no reason to anticipate that it would ever be necessary to put them into operation. My right hon. Friend further stated in plain terms that he was unaware of any case at present which would render necessary the exercise of such powers. I must be perfectly definite, however, in saying that is is not by inadvertence, but of set purpose that a defaulting authority is being treated as not entitled to grant if its work has to be done by somebody else.

8.52 p.m.

Mr. Westwood

Having listened carefully to the explanation given by the Minister of Health on Clause 58, I still think that an injustice may be done under this provision to local ratepayers, who are not to blame for the inaction of their local authority, if it has defaulted in the circumstances contemplated. I do not intend to press this matter to a Division. I have already indicated my view that a local authority ought to be fined for not doing its duty, but at the same time justice ought to be applied, not only to the local authority itself, but to the ratepayers of its area, and the burden imposed under this provision may be far too heavy for the local ratepayers to bear. All I ask is that between now and the Report stage some further consideration should be given to this point with a view to avoiding unnecessary hardship to the ratepayers. It was made clear by the Minister of Health, that although this defaulting provision is contained in many Acts of Parliament, it has never yet been found necessary to use it. That is not because it ought not to have been used, because I have in mind many cases in which such a provision ought to have been applied by the central authority in the interests of good administration, where authorities were defaulting in their statutory duties. In this case, in the interests of the safety of people living in the areas of these local authorities, it ought to be even more speedily exercised, but I still maintain that a grievous hardship may be imposed on the ratepayers unless some provision is made for allowing some form of grant in respect of what the authority would have received, had it carried out its duties properly. I hope that in the interests of already overburdened ratepayers in many parts of Scotland, further consideration will be given to the matter.

8.55 p.m.

Mr. Henderson Stewart

The technique to be adopted in the case of a local authority defaulting in its functions is the holding of a local inquiry by the Minister, which means in effect by the Department. That means that the Department will decide whether or not the local authority has defaulted, and upon the decision of the Department the local authority will lose its functions and will be penalised. That is a very serious proposal to make, and I think my right hon. and learned Friend might do well to reflect upon it between now and the Report stage.

Mr. Logan

I am a little hazy on this question, and I should like to know where we stand. Who is the authority that is mentioned here? Is it to be the council? There is a question as between the ratepayers and the council. Which is the authority?

Mr. Watson

I should like—

Mr. Logan

On a point of Order. I want an answer to my question.

The Deputy-Chairman

I think, perhaps, the hon. Member might wait until the Minister replies.

8.57 p.m.

Mr. Watson

When the Minister of Health was dealing with the earlier Clause, I was concerned about this defaulting provision and the power that a certain local authority would exercise over another because of this defaulting. I would not have intervened now, however, if it had not been for what I consider the rather remarkable doctrine laid down for our country with regard to the responsibility of the ratepayers. My hon. Friend the Member for Stirling and Falkirk (Mr. Westwood) appealed to the Lord Advocate to reconsider the matter in order to safeguard the local ratepayers where a local authority has defaulted. I think the local ratepayers, if they are conscious of their duties, have opportunities of bringing their views to the notice of their representatives on the local authority, and if the ratepayers have not taken the avenues open to them to bring pressure to bear on their representatives, I do not see how any more responsibility rests upon the councillors than upon the ratepayers. The ratepayers are in a position, as well as their representatives on the council, to know whether or not those representatives are defaulting, and I must confess that I was rather surprised at the appeal that was made by the hon. Member for Stirling and Falkirk to reconsider this matter in the interests of these poor overburdened ratepayers. I think the responsibility has as much right to rest on the ratepayers as on the members of the town council. I think there should be a fair distribution of the responsibility.

I believe we are discussing something that is absolutely unnecessary, because I do not think any local authority will default to such an extent as to cause another local authority to come in and take these powers out of their hands. I believe that each local authority will do its duty without any defaulting at all, and that these provisions are merely precautionary. I was surprised at the suggestion that a burgh might have to have its powers taken over by a county council. If there is any default at all, I believe that we shall have a county council being placed under the charge of some large burgh, and that that is the direction in which things will go if there is any defaulting under this Bill. However, if the Lord Advocate is prepared to listen to the appeal of my hon. Friend, I am prepared to wait and see what the right hon. and learned Gentleman brings forward in the shape of an Amendment to meet the point.

9.0 p.m.

Mr. David Adams

There is only one point that I would like to raise. I quite agree that in the case of defaulting local authorities the Minister or another authority should have power to proceed with these works, but it seems to me unreasonable that if such works are carried out, the local authority should lose the benefit of grant. That seems to me not to be just. Every scheme that is carried out ought to bear the grant that would attach to it, whether it is carried out by the Minister or by another local authority. The case is, we hope, very remote and will possibly never occur, but it seems to me that to penalise the ratepayers still further by loss of grant is unjust and that the grant ought to be added in any case, no matter who carries out the work.

9.1 p.m.

The Lord Advocate

I find myself in some little difficulty in replying to the questions put to me, because, with all respect to you, Colonel Clifton Brown, I cannot see how the question of the grant to the defaulting authority arises on the Amendment before us.

Mr. Adams

The Minister referred to it.

The Lord Advocate

If I may, in answer to the questions put, I would point out, in the first place, that if one looks back to Clause 58, one will see that the only local authorities whose functions can be transferred under the default power to the county council are the council of a county district in England or a small burgh in Scotland. In the case of large burghs in Scotland, in answer, I think, to the hon. Member for Dunfermline (Mr. Watson) and the corresponding authority in England, the transfer is to the Minister himself, so that the fear expressed from certain quarters that there would be wholesale transfers to county councils is not well founded. The second observation that I would make is that this question, if it has any merits, as to which I am not in a position to speak, is a question which is common to both Scotland and England, and one which arises properly for consideration on Clause 58. I approach the matter, as I am bound to do at this stage of the Bill, upon the footing that this Committee has passed Clause 58 and has declared that for England Clause 58 is to be the rule that is to apply, and, that being so, the only question to which I have to address my mind is whether any other rule ought to apply in Scotland and whether any case can be made out for differentiation on the two sides of the Border. To that question I can see only one answer, namely, that if the defaulting authority is not to be allowed to have the benefit of grant in England, I cannot see why the defaulting authority in Scotland should be treated in any other way.

On the wider question, I would venture to agree, and I would adopt the argument of the hon. Member for Dunfermline (Mr. Watson) when he pointed out with considerable force that this Clause, if it operates, will operate only in the most extreme circumstances, when there has been some really flagrant neglect on the part of a local authority to carry out its duty. I cannot imagine such neglect resulting in the exercise by the Minister of the default powers until that neglect had lasted for such a long time that the ratepayers had been led to demand some action.

Amendment agreed to.

Further Amendments made:

In page 64, line 22, leave out from the second "section," to "shall," in line 24.

In line 31, leave out "and paragraph (a) of Sub-section (2) shall not apply."

In line 36, leave out from "sixty-six," to "dean," in line 38, and insert: any reference to requirements or restrictions imposed by or under any enactment as to the matters specified in that Section shall include a reference to any requirement imposed by or under any enactment, or by virtue of the common law as to the presentation of a petition to a.

In page 65, line 6, leave out "local authority," and insert "county or town council."

In line 9, leave out "authority," and insert "council."

In line 10, leave out "local authority," and insert "county or town council."—[The Lord Advocate.]

The Lord Advocate

I beg to move, in page 65, line 18, at the end, to insert: (24) Where by virtue of the Rating Exemptions (Scotland) Act, 1874, or of the corresponding provisions of any local Act, any exemption from payment of local rates is enjoyed in respect of any lands and heritages such exemption shall not cease by reason only of their being used for any of the purposes of the Act of 1937 or of this Act, if such use is granted gratuitously or subject only to a reasonable payment in respect of cleaning, heating, lighting, or other services, and no profit is derived from such payment. The purpose of this Amendment is one which, I think, will commend itself to the Committee in that it will encourage the free use for A.R.P. purposes of religious halls and similar buildings. The obstacle which at present exists to such free use is a rule of Scots law, depending on a decision interpreting the Act of 1874, to the effect that the exemption from rating enjoyed by such halls is lost if they are used for purposes other than religious purposes. It does not depend on the receipt of money or the making of profit, but on the nature of the use. Accordingly, in the Amendment it is proposed to preserve the exemption from liability to rating if a hall is used for A.R.P. purposes and its use is granted gratuitously or in return for a payment to cover out of pocket expenses.

9.9 p.m.

Mr. Westwood

This is a vast improvement on things as they are at present. I know of churches which have been willing to give their church halls for A.R.P. purposes, but they have had to withdraw their offer because they found that if they made a reasonable charge for cleaning, lighting, and so on, it would bring them within the law as to rating. It is, therefore, impossible for them to give the assistance they desire to give. This Amendment will help as in connection with A.R.P. work in Scotland.

9.10 p.m.

Mr. R. C. Morrison

Is this Amendment drafted widely enough to include the use of halls for the social and recreational activities of A.R.P. volunteers? Recreational organisations are being set up throughout the country for A.R.P. volunteers, and the first thing they look for is a suitable building in which to hold their social gatherings.

The Lord Advocate

This new Subsection is deliberately linked up with the Rating Exemptions (Scotland) Act, 1874, which applies only to Scotland. The law in England differs from the law in Scotland in this respect. I cannot, therefore, commit myself to an answer so far as England is concerned. This Amendment is definitely adapted to meet Scottish requirements.

Mr. Morrison

In Scotland, as in England, there are being set up social organisations for A.R.P. volunteers to enable them to meet together for social purposes. The Lord Privy Seal's Department is giving great encouragement to that movement. In the event of church halls in Scotland being required for whist drives, social gatherings, re-unions of volunteers, and so on, will the Sub-section be wide enough to enable them to be let for that purpose?

The Lord Advocate

The Sub-section allows the halls to be used for any of the purposes of the Act of 1937 and of this Bill. I cannot recall any provision in either Measure which deals with whist drives and such purposes, but I have no doubt that they will be given a wide interpretation. I am not, however, prepared to commit myself.

Mr. Morrison

I suggest that as the demand for church halls will be greater for social and recreational purposes than for any other purposes in connection with A.R.P., perhaps the Government will consider before the Report stage whether this provision is wide enough for that purpose.

Amendment agreed to.

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

Clause 75 ordered to stand part of the Bill.