HC Deb 12 June 1953 vol 516 cc637-42
Mr. Hay

I beg to move, in page 7, line 23, to leave out from "requiring," to the end of line 33, and to insert: the owner or occupier of a building to provide a dustbin, and the grounds upon which the appeal is brought include the ground that the notice ought to have been served on the occupier of the premises instead of on the owner, or on the owner instead of on the occupier—

  1. (a) the appellant shall serve a copy of his notice of appeal on the other person upon whom he alleges that the notice under the said section seventy-five ought to have been served; and
  2. (b) on the hearing of the appeal the court may make such order as it thinks fit with respect to compliance with the last-mentioned notice either by the appellant or by the said other person.
Hon. Members will see that the effect of the Amendment is to restore the original wording of the Bill. In Standing Committee, the hon. and learned Member for Kettering (Mr. Mitchison) moved an Amendment which had the effect of taking out the major part of subsection (4) and inserting the words which now appear in the Bill as printed. The essence of the change is that if when a person who is served with a notice to provide a dustbin wishes to appeal, he includes as one of his grounds of appeal that it was not equitable that notice should have been served upon him, the court, if it chooses to do so, may make an order that the other party, whether it is the occupier if the owner appeals or the owner if the occupier appeals, shall have to provide it instead. That is my understanding of the present wording of the Clause.

As I see it, under the new wording this would be the sequence of events. Imagine that it is the owner who is served with a notice under Section 75 of the 1936 Act to provide a dustbin. He does not think it is fair that he should have to provide it and, therefore, he appeals. He puts forward as one of his grounds of appeal that it was not equitable for him to be called upon to provide the dustbin. If he does that, if he happens to choose that ground of appeal, the Clause says that he must serve notice upon the occupier. When the court eventually has to consider the matter, it must have both parties before it and it makes such order as it thinks fit, saying which of the parties shall provide the dustbin.

There are a number of questions, however, which are left unanswered, and it is for this reason that my Amendment proposes to restore the original wording. Suppose, for example, that it is not equitable for the occupier to provide the dustbin either. The owner appeals and says that it is not equitable for him to provide it. Perhaps he is in grave financial difficulties. He may be getting quite insufficient revenue from the property to enable him to provide a dustbin, as is often the case in these days. But suppose equally that it is inequitable, unfair and unjust for the occupier—the other person envisaged by the Clause—to have to provide one. He may be unemployed and in great financial difficulty himself. If that happens, there are two people before the court and it is inequitable for both of them to provide the dustbin.

The court is, therefore, faced with what I conceive to be an almost impossibly difficult task. Presumably, although the Clause does not say so, the court would be obliged to decide between them, and we would be getting a repetition in this field of the miserable sequence of events, with which so many of us are familiar, when the county court has to make possession orders in Rent Restrictions Acts cases, deciding whose hardship is the greater, whether the owner's through being kept out or the tenant's by being turned out. It is quite wrong that we should bring forward this new wording.

Let me contrast the new wording in the Clause with the original wording upon which the House gave the Bill a Second Reading. The original wording was to provide that it is only where the appellant—the person complaining about the notice served upon him—specifically claims that it should have been served on the other party, that that other party comes before the court. If he appeals because he says, "It is not fair that I should have to provide it," that is an issue which the court can decide; and it is an issue quite uncomplicated by the question whether or not it is equitable that somebody else should provide it.

In Standing Committee, the hon. and learned Member for Kettering mentioned a case from Yorkshire in which an owner, having been served with a notice, appealed on the ground that it was not for him to provide the dustbin. The hon. and learned Member said that that went only half-way. What in effect was being done was to say, "It is not for me to provide it. It is for the other fellow to do so." That, however, is not so. What was being said by that appellant was precisely what he did say: "It is not for me. It may be for somebody else, it may be for the occupier, or it may be for the local authority as the guardians of the public health, but it is not for me."

I suggest that that is a far more satisfactory way of dealing with the matter. It is much more satisfactory than a confused hearing before magistrates as to whether it is equitable that A should provide a dustbin or whether B should provide it, and whether A's equity is greater than B's equity. I think that we should adhere to the original wording of the Bill to which the House gave a Second Reading, and for which, incidentally, there are a number of precedents in Private Acts and local legislation. I prefer the original wording and I hope that the hon. and learned Member, having listened to what I have said, will agree to go back to his own first thoughts on the matter, which I believe to be very much better than his later second thoughts which now appear in the Bill.

Mr. Finlay

I beg to second the Amendment.

Mr. Mitchison

As the hon. Member for Henley (Mr. Hay) has reminded us, this is exactly the point which arose in Committee. What happened then was that the words which the hon. Member now seeks to put back into the Bill were taken out of the Bill and the words that now appear in it were inserted. That decision was come to, without a Division, after the hon. Member had put forward what, although rather differently expressed, are substantially the same points as he has put forward today.

I hope the hon. Member will feel that having consented, as he did consent in the Committee, by silence or otherwise, to the present language, he might at any rate not push his disagreement with the present language so far as to persevere with the Amendment now. I do not think that there is any substantial difference between the effect of the two forms of wording. As I said in Committee, I very much doubt whether the police court concerned in the case I mentioned came to a right decision. It is not my business to criticise the administration of justice, but I am entitled to say that I regarded it as a rather doubtful decision.

The decision was made and this wording was put in to meet it. I think it does meet the difficulty felt by the local authority associations, particularly the Association of Municipal Corporations, with regard to the wording which the hon. Member opposite wishes to reinsert in the Bill. I feel that on a matter of this sort, if I may again quote the unusual combination of the late Miss Marie Lloyd and the hon. and learned Member for Ilford, North (Sir G. Hutchinson), "A little of what you fancy does you good," even in the provisions which local authorities will have to deal with and which they ask should be worded in some such way as this.

Mr. Hay

Will the hon. and learned Member not agree that while it may well be that local authorities would very much like to have this form of wording because sometimes they are a little embarrassed by the fact that they serve notices which are not complied with, local authorities are not the only people to be considered? It may be that it would be proper and right for the local authorities themselves to provide dustbins, as they are guardians of the public health. It is a great pity we did not have an opportunity of discussing the matter this morning.

Mr. Mitchison

I am much obliged to the hon. Member for his comment, and. this being a Friday morning, I will refrain from making any observations about the point of view which seems to appeal particularly to him. I hope he will remember that he did agree with, or at any rate did not dissent from, the present form of wording being substituted in Committee for that which he now seeks to have reinserted. Having regard to the fact that this does not involve any question of principle but is a question of language, and the drafting was inaccurate in Committee, I hope the hon. Member will withdraw his Amendment.

Mr. Hay

I do not propose to ask hon. Members in other parts of the building to leave what they are doing and come to vote in a Division again so soon. I accept what the hon. and learned Member says, but I am not altogether happy about this. As a matter of personal explanation, I would point out that when we discussed the matter in Committee I made a protest, but we did not necessarily divide the Committee on every matter on which we felt at variance. I believe we had only two or three Divisions in the whole of the proceedings.

The actual form of words in the Bill was a somewhat complicated matter when it appeared before the Standing Committee. Now that we have had a chance of seeing the Bill reprinted with the new form of words, I must admit that all my fears have been revived. I do not wish to detain the House now, but I hope that in another place there will be an opportunity of looking at this matter again. I feel there is a certain difficulty in which persons may be placed, particularly magistrates, when they have to decide between two persons, both of whom say that the requirement is unfair. It may be unfair that they should have to provide a dustbin. I think it would be better to leave the law as it stands, if that is the case. Nevertheless, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.