§ Mr. Benn
I beg to move, in page 10, line 33, to leave out "weeks" and to insert "months".
I gave a forecast of this problem a moment ago. The position under the Bill is much too drastic. A local authority which is given power or a Minister who is given power to make designation orders, if they make a mistake in fulfilling 1516 the many statutory requirements laid down in the Bill, however great that mistake may be, are still covered by the total indemnity six weeks afterwards.
We discussed this in Committee at length and had a debate which rather horrified me and some of my hon. Friends because we felt that this was not the way to produce the result intended. To give the Minister and the Government full credit, they intend that if there is a mistake made by a local authority, an inconsequential mistake which only comes to light six months or indeed six years after a designation order has been made, the order should not, for that reason, be able to be upset, and the whole question of the operation of the order over a long period should not be brought to nought because of a technical failure.
The Government have decided to write in a provision that after six weeks everything will be all right, even if the law has not been applied. This is unsatisfactory. The only precedent that could be cited by the Joint Parliamentary Secretary was from the Housing Acts after the war. We do not feel that that is comparable. A designation order creates the offence of parking within an area where parking is to be prohibited. We do not think that an order which creates an offence and which is, perhaps, wrongly made and does not comply with the Statute, ought to be upheld by a court subsequently.
We fully recognised in Committee, and we recognise it again now, that we have got to be prepared to overlook certain errors if they occur, in order to safeguard a local authority from frivolous prosecutions of one kind or another, but that is not at all the same thing as saying that to do that we must say that a six weeks' statute of limitation is required.
We had in mind that there should be no statute of limitation at all, but that the Minister should have the power retrospectively by order to legalise a designation order which was illegal provided he brought his order to Parliament. In other words, we were prepared to give him the power under the Bill provided he came to Parliament and explained the case. But the Minister would not budge on it. We had in Committee upstairs a frustrating debate. We put the matter now in rather simpler form, namely, that we think that six 1517 weeks is too short a period and that it ought to be six months.
I know that six months sounds rather a long time if there is a designation order and if there is six months' uncertainty hanging over it, and that a local authority may feel rather anxious. but, after all, it is the responsibility of a local authority, and of the Minister for that matter, to see that designation orders do comply with the law; and if they do comply with the law there is no uncertainty for a six-month period because no action can be brought against it.
Suppose, however, that a man is away on holiday and that a piece of land outside his house is wrongly designated—say, a couple of hundred yards of private road. It could happen. This Clause says that the error shall be legalised. We think that a man ought not to suffer in consequence of any error of the sort.
We would rather the period were six months. We think that six weeks is too short. It may be that six months is too long, but, anyhow, we think that the period ought to longer than six weeks. It has to be remembered that people with delegated powers under an Act of Parliament should fulfil the requirements of the law, and if they do not they must expect to suffer and expect to be called to account.
So I move the Amendment hoping that it will be considered very seriously. We hope that it will have the effect on those making designation orders of seeing that they are properly made. If we make a statute of limitation under the Bill of six weeks, as I said in Committee, it has the effect of putting temptation in the way of local authorities not to be as careful, perhaps, as they should be about some of the very minor provisions, or what they may think are minor provisions, of the Statute. I know that the Minister's Department would always most scrupulously consider every aspect of the matter and would be most scrupulous in fulfilling its obligations, but some local authorities, perhaps very busy ones, might make a mistake, and the knowledge that they have a six weeks period to cover them may perhaps tempt them to be a little slapdash in their operations. So I move this Amendment in the hope that it will be considered by the House.
§ Mr. Hay
As the hon. Gentleman the Member for Bristol, South-East (Mr. Benn) has said, we discussed this in Committee, and I think it was on this point that we had one of the few Divisions we had in Committee. As he has said, the purpose of the Clause as a whole is a limited one. Its intention—I am dealing with intention and not effect—is to protect local authorities from the possibility, which may be rare but which may not be rare, that a designation order saying that part of the street is to have parking meters put upon it may be successfully challenged in the courts.
This could arise in two ways. It could arise because the court might decide that the designation order was ultra vires the Measure, or it might decide that the designation order was wrong because some procedural requirement laid down by the parking meter procedure code I referred to earlier had been overlooked.
Let me give the House two examples of the way in which this could come about. Let me draw the attention of the House to Section 87 of the Road Traffic Act, 1960, which contains the general provisions for the regulation of parking on highways where charges are made. Subsection (2) states:A designation order may revoke the designation of any place as a parking place under section thirty-four or eighty-one of this Act and such an order … may provide that the designation shall not have effect as respects any time during which provision is made under section eighty-five of this Act for the leaving of vehicles in that place.Put briefly, that means, as I understand it, that if we wish to have meter parking on the same place as we have had free parking places the designation order which we make to put in the meters may revoke the designation of that place as a free parking place, a designation which had been made, perhaps, some years before.
Suppose, as an example of how this provision in this Clause may work, the designation order by inadvertence did not revoke the designation of that free parking place. I think, to put it no higher, that it would be likely that someone might challenge the designation order on that ground, and say that it was wrong to have parking meters there because that was—and is—a free parking place, and, therefore, we had acted ultra vires our 1519 powers in putting in parking meters pursuant to the designation order without having revoked the earlier designation of the place as a free parking place.
§ Mr. Hay
I will not admit that. I am coming to that and what happens about major errors. I am not avoiding the point. I shall come to it when I reach that part of my speech.
Let me come to the case where a procedural error might be made. This is an example I gave in Committee. Under the Tenth Schedule to the 1960 Act, the procedure for the designation of a parking place requires that the times when the parking place is to be open for meter parking have to be advertised. Suppose that the order advertising the parking place does not state the times during which it is open. I would think that no one looking at either of these two examples—and there may be many more—would consider them major ones. The hon. Gentleman has admitted that in his view they are minor ones.
I must impress this upon the hon. Gentleman and upon the House as forcibly as I can that these minor errors might yet have the most serious consequences if they or any errors similar to them were not to be covered by this Clause. If we have a designation order called in question and, perhaps, declared ultra vires and void by the courts, then at once all the meters which have been installed become obstructions on the highway, and even obstructions from the very moment they were put in, because the order to put them there was void. It may well be that all these proceedings may have taken place a couple of years or even longer after the time when the parking meters were put there.
If the order was void ab initio, then any offence committed at any one of those parking places was not an offence; any money paid by way of fine was wrongfully paid; any conviction by a court was wrongfully made; any money collected by the local authority as fees for parking was wrongfully collected. The mind boggles at the possibility of having 1520 to find out who the people were who paid this money into the parking meters over the years. These are possible consequences. It is not a fanciful situation; this is what could happen, and that is why we decided that there ought to be some point in time after making the designation order when there would be finality and local authorities would no longer be at risk.
The main point of the Amendment—and I understand that the principle behind the Clause is now accepted and that we are now arguing only about the time; that is, six weeks or six months—is that this period of six weeks is the proper time at which the barrier, so to speak, comes down, and the order, whether it is illegal or wrongly made or whether there have been inadvertent errors, is in full force and effect. I should tell the House and the hon. Gentleman why we say six weeks. The answer is that there is a long line of precedents, which I have now been able to obtain but which I did not have during the Committee stage, all of which use six weeks as the appropriate period
The first one I have been able to obtain is, it is true, the Housing Act of 1930. Section 11 of that Act places a six-weeks' limit on the right of an individual to challenge a clearance order relating to a house or property. That is going back to 1930, and that is the first one.
§ Mr. Hay
No. I have a precedent where an offence is created, but I will come to that in a moment.
The second example is the Acquisition of Land (Authorisation Procedure) Act, 1946, which the right hon. Member for South Shields (Mr. Ede) will remember as having been passed by the Government of which he was such a distinguished member. In paragraph 15 of the First Schedule to that Act, it is stated that the vires of a compulsory purchase order cannot be challenged after six weeks. I come next to the Special Roads Act, 1949, which again was passed by the Labour Government. Section 14 of this Act provides that the vires of trunk road orders cannot be challenged after six weeks have gone by.
1521 Then comes the National Parks and Access to the Countryside Act, 1949. Section 93 and paragraph 8 of the First Schedule of this Act have equivalent provisions. In Section 93 of this Act, certain local authorities can make orders restricting the use of roads in National Parks by all manner of vehicles and penalties are attached. Local authorities can make orders imposing penalties for misuse by vehicles of the National Parks, and, under paragraph 8 of the First Schedule to this Act, such orders made by local authorities imposing penalties cannot be challenged after six weeks have gone by.
Finally, I must put this one to the House. When this House two or three years ago was considering the Tribunals and Inquiries Bill, which is now on the Statute Book, this very point came up. In fact, if we look at Section 11 (3) of the Tribunals and Inquiries Act, 1958, we see this sort of provision, providing that the vires of an order shall not be challenged after the passage of a given time, was expressly excluded from the protective provisions which were being put into that Act, the protective provisions being the supervisory powers of the superior court.
I hope the House will, therefore, agree that we have chosen this period of six weeks, not at a venture, but on the basis of a large number of highly respectable precedents. We have also chosen it on the basis of the National Parks and Access to the Countryside Act, which contains this element of offence to which the hon. Gentleman referred. I hope that in the light of that explanation and argument the House will agree to passing this Clause unamended.
It may be said that we are affecting the rights of individuals by this Clause. That is true, but I suggest that this House has affected the rights of individuals very much more in the past, for example, by this procedure for the axe coming down after six weeks on the right to challenge clearance orders and compulsory purchase orders. I do not think it can be said that in the case of the two examples I have given—the withdrawal of free car parking or failure to advertise times when a parking meter place is open—the rights of individuals have been or would be much more seriously affected than in those cases of property.
1522 Finally, I come to the point about major errors. It is common ground between both sides of the House that we are intending here to deal with minor errors inadvertently made. Major errors, such as were mentioned by the hon. Gentleman, cannot escape in our procedure under this Bill and the procedure already laid down in the 1960 Act. First of all, there must be advertising of the designation order, and that is a pretty good safeguard for the public. If there is an error, it is highly likely, I suggest, that it will be picked up at that stage. I am now talking about a major error.
§ Mr. Hay
Again, I ask the hon. Gentleman to be patient. I come to the next stage. Let us take the case where they fail to advertise. They have to come to the Minister as the very next stage, for the Minister is the confirming authority for designation orders. The hon. Gentleman has only to look at Clause 3 (3) and (4) and Clause 5 (8) to see what the safeguards are there. The Minister is the confirming authority. If, for example, the local authority had not advertised—a major error—it is quite obvious that the Minister will say at once, "This Order will not be confirmed by me, because it has not been advertised". There is an even further safeguard. Even if they could get that past the Minister, the Order still has to be laid before Parliament, and this House has the right, indeed the duty, in a case like that, to challenge it.
I hope the House will agree that, on any reasonable and logical view of this matter, it is right that we should have this provision of six weeks to deal with minor errors, and that the risk of major errors slipping through is so small as to be almost, to use a lawyer's expression, de minimis—something of which we need take no notice. What we need is some kind of provision, which this Clause gives, to give local authorities the cover against minor errors in the past, and, in addition, the certainty that the order will continue to operate until a new one is made. That is the purpose of this Clause, and I think it is 1523 absolutely essential that we should have a Clause like this if we are to avoid possible chaos. In the light of that explanation, I ask the hon. Gentleman to consider withdrawing his Amendment.
§ Mr. Benn
This has been a rather moving afternoon. The partnership between the Minister and the Joint Parliamentary Secretary is quite touching. Earlier, I asked the Minister if he understood the Bill, and he said "No, but my hon. Friend does". Then, I moved an Amendment to rule out errors, and the Joint Parliamentary Secretary said that they could not happen because his right hon. Friend would always look at it. The fact that they have confidence in each other discharges us from having confidence in either, but it would be churlish of me to press the Amendment after such a demonstration of virtuosity by the research department of the Ministry of Transport, when I think of the hours they must have spent going through all the Acts to find out where this six weeks' period is laid down. I think that one point the hon. Gentleman forgot was that the 1930 Act was also passed by a Labour Government.
§ Mr. Benn
If the hon. Gentleman is sparing our feelings—I was not in the House myself at the time—it is an extra reason for accepting his argument. As a matter of fact, I must confess that now he recites for the benefit of the House the safeguards there would be against major errors, I am disposed, on the arguments of the case, as well as personal affection for him, to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.