LOCAL AUTHORITIES (CHARGES FOR DUSTBINS) ORDER (Hansard, 28 February 1949)

§ Sir John Mellor (Sutton Coldfield)

I beg to move, That an humble Address be presented to His Majesty, praying that the Order, dated 25th January, 1949, entitled the Local Authorities (Charges for Dustbins) Order, 1949 (S.I., 1949, No. 120), a copy of which was laid before this House on 27th January, be annulled. This order has been the subject of consideration by the Select Committee on Statutory Instruments, and has been reported by them to the House in the following terms: Your Committee have considered the Local Authorities (Charges for Dustbins) Order, 1949 … a copy of which was presented on the 27th January, 1949, and are of the opinion that the special attention of the House should be drawn to it on the ground that it appears to make an unusual and unexpected use of the powers conferred by the Statutes under which it is made. 101 The order makes the following provision—I think the simplest way would be for me to read the explanatory note— Under the Public Health Act, 1936 local authorities may make an annual charge not exceeding 2s. 6d. for each dustbin provided and maintained by them. Maximum charges of varying amounts are also prescribed for similar services under local Acts. To enable local authorities to meet the increased costs of this service the order prescribes a maximum charge of 5s. in all cases where the present maximum is less than that amount. This order is made, or is purported to be made in pursuance of certain statutory powers. It commences: The Minister of Health, in exercise of the powers conferred upon him by paragraph (10 of Regulation 56 of the Defence (General) Regulations, 1939, as having effect by virtue of the Supplies and Services (Transitional Powers) Act, 1945(a), … hereby orders as follows.… When one looks at Regulation 56 (1B) one finds this: For any of the purposes specified in Subsection (1) of Section one of the Supplies and Services (Transitional Powers) Act, 1945, the competent authority may by order relax any obligation or limitation imposed, with respect to any public utility undertaking … by virtue of, any Act … determining the functions of the undertakers, and in particular may authorise the undertakers to make in connection with the carrying on of such undertaking, charges in excess of, or in addition to, those which they would otherwise be authorised to make. … It will be observed that the governing words are at the beginning: For any of the purposes specified in Subsection (1) of Section one of the Supplies and Services (Transitional Powers) Act, 1945. The words in that Act upon which the Ministry rely for the validity of this order are considered in the memorandum which the Ministry submitted to the Select Committee on Statutory Instruments at their request. Paragraph 1, as I have said, deals with this very vital question as to the particular purpose prescribed by the Supplies and Services (Transitional Powers) Act, 1945, within which the Ministry claim that this order is made. The first paragraph of the memorandum is as follows:

"1. The first point upon which the Select Committee have asked the Department to submit an explanation is the question whether the Order falls within the scope of Section 1 (1) of the Supplies and Services (Transitional Powers) Act, 1945, …
2. It is the view of the Department that the purpose of the Order, which is inherent in that expressed in the Explanatory Note, is to enable Local Authorities to continue the service of the provision and maintenance of 102 dustbins under Section 75 (3) of the Public Health Act, 1946, without financial loss. This purpose appears to fall within that expressed in Section 1 (1) (a) of the Act of 1945 as 'the purpose of so maintaining, controlling and regulating' services essential to the well-being of the community as 'to secure … their availability at fair prices'."

The question, therefore, is whether this order, in empowering local authorities to charge more than the 2s. 6d. per annum which is prescribed in the Public Health Act, 1936, comes within the purposes laid down by the Supplies and Services Act, 1945, and whether the contention of the Ministry is right that this order secures the availability of dustbins at fair prices. That is where I join issue with the Ministry. It is also where the Select Committee on Statutory Instruments, to put the matter most modestly, had grave doubts about the validity of his order. In my submission, this order does nothing to secure the availability of dustbins. What it does, or what it claims to do, is to save local authorities from loss. That really is all that the Explanatory Memorandum claims, but when the Select Committee took note of this the Ministry of Health put forward a much more complicated argument. I cannot see how they can reasonably claim that this order does anything to secure the availability of dustbins either at fair prices or any other prices.

I am informed that there is no shortage of dustbins. I do not think that has been suggested. If this is a question of fair prices, if it is suggested that the existing market prices of dustbins are too high, then surely the Government should deal with the matter by means of price control, for which they have the most adequate and extensive powers. Again, it is not obligatory by this order, or by the Public Health Act, 1936, for local authorities to supply dustbins. It is purely optional. Under the Act of 1936, the local authority can require any owner or occupier to provide a dustbin for the premises. If the owner or occupier fails to do so, the local authority can provide a dustbin at the expense of the owner or occupier. It is purely an alternative option which the local authority has to provide dustbins on hire. Therefore, I cannot see that this order does anything to secure the availability of dustbins.

It may be a very desirable course to save local authorities from loss. It may 103 be that this order in its intention, in aiming to prevent local authorities from suffering any loss in providing these services, is well intentioned, though in my submission, however good is its intention, it is not within the powers under the Statute. For the purpose of my argument, I am prepared to assume that the order is reasonable, although I say that without prejudice to the argument which will be put forward by my hon. and gallant Friend the Member for Finchley (Captain Crowder), who will argue the question more on its merits.

If we assume for the purpose of argument that this order is desirable and that it is within the powers, why does the Ministry stop at local authorities? Local authorities are not the only people who provide dustbins. Many landlords of rent-controlled premises are obliged to provide dustbins and are precluded under the Rent Acts from charging any increase in rent in respect of that service, notwithstanding the increase in the cost of dustbins. Therefore, if it is reasonable to enable local authorities to charge more for dustbins, surely it would also be reasonable to make the same provision for private landlords of controlled premises. If the Ministry of Health are entitled by this order in effect to amend the Public Health Act, 1936, surely they have equal power by a similar order to amend the Rent Acts so as to enable landlords to charge more in respect of services provided by them—such as dustbins.

In my submission, assuming that this is a desirable proposal, it should be done by Bill and not by statutory order. The order is of a temporary nature because under the Supplies and Services Act it can only continue until 1950, unless the Act is extended by Resolution of the House. I imagine that the intention is that this provision should become permanent, because if we refer to paragraph 7 of the Memorandum by the Select Committee—and this is where the Ministry let the cat out of the bag—we find this: A further point upon which the Select Committee have requested an explanation is the question why the object in view was not attained by an amendment by Act of Section 75 of the Public Health Act. 1936. As to this, the course suggested would have been taken by the Department had there been any 104 legislation in view in which the relevant amendment could be properly incorporated. No such opportunity presents itself at present, but it is intended that upon the first suitable occasion that course will be taken. In the meantime many Local Authorities are incurring increasing losses upon the maintenance of this service at an unfair price and, in order to remove that prohibition or deterrent from the continuance of a highly expedient practice, it was deemed necessary to have recourse to the powers specially contained in that behalf in the Defence Regulations. I am aware that there has been great confusion as a result of the ambiguities in Section 75 of the Public Health Act, 1936. There have been many cases in the courts and conflicting decisions have been given. In some cases it has been determined that the responsibility is upon the occupier, and in some cases the responsibility for providing dustbins has been put upon the owner. It is desirable that all that should be cleared up, but it can only be cleared up by a Bill. In view of the strictures which the Select Committee on Statutory Instruments have made in regard to this order, I hope that the Ministry will be prepared to revoke it and to introduce a Bill to deal with this involved and complicated problem. I submit that this order is not within the powers under the Statute.