§ Mr. Hay
I beg to move, in page 9, line 41, to leave out from the beginning to "section" in line 46.
I think that it might be for the convenience of the House, Mr. Speaker, if with this Amendment we also took those in page 10, lines 1 and 4.
The object of these Amendments is to make possible the amendment, by an Order made by the Minister on the application of the relevant local authority, of any provision in a local Act that does not accord with the provisions of Clause 1 of this Bill which, as the House remembers, deals with nonfeasance. The difficulty is that there might in local Acts be provisions that would conflict with Clause 1 and, as a result, locally a somewhat confused legal situation might well arise.
In practice, of course, it would be quite impossible for us to make a complete examination of all the local Acts promoted by local authorities over the last hundred years or so during which the nonfeasance doctrine has been in force, and then to make quite sure that none of them made provisions which had been framed entirely on the assumption that the nonfeafance rule would continue. If there were such provisions, and if they were legally in force without there being the possibility in this Bill of getting them amended, the local authority might find itself having somewhat different rights, powers and duties under the local Act than under the provisions of Clause 1.
I should remind the House that when the 1950 Public Utilities Street Works Act was passed, a somewhat similar 1915 clearing-up operation took place, and in so far as that disposed of any provisions in local Acts relating to statutory undertakers that were not in accordance with the new code laid down by that 1950 Act, it seems unlikely that there will be many provisions left in local Acts that will be out of accord with the provisions of this Bill in regard to nonfeasance, but it is obviously desirable that we should have the power to eliminate any differences if they are found to exist.
We propose that a highway authority that finds itself in such a position should be able to apply to the Minister for an Order modifying the local enactment in any matter it may think suitable in order to take account of this changed position arising from the abolition of the rule of nonfeasance, and that the Minister should have power to make such an Order.
There is already a general provision in Section 288 of the Highways Act, 1959, for the Minister of Housing and Local Government to make an Order amending a local Act where the provisions are inconsistent with the provisions of that 1959 Act, or where they are redundant. In the present series of Amendments we are, however, going a little wider in the direction of giving the Minister of Transport a power to modify. The reason is that Section 288 of the 1959 Act is strictly limited to provisions in local Acts that are either inconsistent with the main Act or are obviously redundant.
These Amendments would allow a change to be made in the local enactment where, to use the words of the Amendment…it appears proper to alter having regard to the effect of section one of this Act.…Because we are asking the House to give us these rather wider powers, we propose to make any Order that the Minister of Transport may wish to make subject, in future, to the negative Resolution procedure.
This is different from the procedure which is at present in operation under Section 288. It is possible that hon. Members may say that this is a very bad example of legislation by reference. [HON. MEMBERS: "Hear, hear."] I am sorry 1916 about it, but I ask hon. Members to consider the appallingly complicated situation we should be in if we found that, having made this general statute with general application abolishing this defence of nonfeasance, it was subsequently found that local authorities had private Act powers which had been erected upon the foundation of the continuance of the nonfeasance defence.
This is the difficulty that we face. The only alternative to the Amendment would be for us to go right through every local Act and check each one and make sure that the situation would be traced and each case would be cleared up by a fresh Act of Parliament. I suggest that to do so would be virtually impossible. I hope, therefore, that the House will agree with this proposal which is subject to a negative Resolution for any Order which we make, and I do not think that there will be many. I suggest that it provides all the flexibility that we need and obviously my right hon. Friend's Department would exercise it with great care.
§ Mr. Hay
Perhaps the hon. Member did not catch what I said. There is already under Section 288 a provision which in that case is vested in the Minister of Housing and Local Government. That is a very clear precedent. In the Amendment we are going a little wider, because we have to deal with a situation different from that with which Section 288 was concerned.
§ Mr. Wigg
The more I listen to the hon. Gentleman the more I am impressed by the sweet reasonableness of his arguments. He almost convinced me, but not quite, because at the back of my mind was the thought that the doctrine that is being enunciated here is that of administrative convenience. If one accepts that doctrine one can accept the hon. Gentleman's argument. The hon. Gentleman argues with such persuasive charm, clarity and competence that if the Conservative Administration continues I shall put him on my short list to make some day a good Secretary of State for War, and higher praise than that I cannot give.
The deciding point, however, comes with the accumulation of this sort of 1917 argument as it weighs upon the private citizen, the poor chap with a grievance who goes to the ordinary workaday lawyer. What chance has he? This is the function of Government and what has happened today will surely convince anyone that this is a Government Measure. The Government ought not to argue that this is an almost impossible task and that they cannot discover all the cases on the Statute Book.
This is a completely convincing Departmental argument but I cannot accept it. I will accept the Bill as a stop-gap Measure as the Session moves towards its end, and to help the hon. Member for Bury St. Edmunds (Mr. Aitken) to get this admirable Bill on the Statute Book. But it is the Government who have tabled the Amendment and I would ask why they do not promise that some time in the future they will produce another consolidating Measure to put this matter right.
The argument is always the same. It never changes. It is always "almost impossible". The Joint Parliamentary Secretary is far too honourable to say that it is impossible and so it is always "almost impossible" to do these things. In other words, it is a confounded nuisance, and so the Minister is briefed to make these admirable speeches and he does his job with great charm. He has almost convinced me, but he ought to give hon. Members the credit for having second-thoughts on the matter.
§ Mr. Dudley Williams
I do not wish to hold up the proceedings for more than a minute or two, because I am sure that we are all anxious to discuss the Motor Vehicles (Passenger Insurance) Bill. But once more I must register a protest against the introduction on a Friday of Private Members' Bills containing provisions to give the Government power to issue Orders which are subject only to annulment by Resolution of the House. We know that the hon. Member for Dudley (Mr. Wigg) may well be right in saying that this Bill was inspired by the Government—
§ Mr. Wigg
That is not so. I should not wish people to think I said that. This Bill is the excellent work of the hon. Member for Bury St. Edmunds (Mr. Aitken). I accept that. But the Government see in this excellent Bill an oppor- 1918 tunity to do something which is a little difficult to achieve in other ways. The Government and the County Councils' Association have used this Measure to do something which they would never have dared to do themselves.
§ Mr. Williams
My apologies are extended to the hon. Member for Dudley if I misunderstood what he said.
I take the strongest exception, and so do many other hon. Members to the procedure of introducing private Members' legislation which gives power to the Government to issue regulations under a two-line Whip. No effective opportunity is afforded for private Members to upset regulations made as a result. I think it wrong and I hope that what I am saying will be noted by my right hon. and learned Friend the Solicitor-General and by the Lord Commissioner of the Treasury who is at present on the Government Front Bench. I think it absolutely wrong that the Government should secure legislation in this way giving them the power to issue regulations which will be carried by means of Whips issued by the Government.
§ Mr. Aitken
It may not have occurred to my hon. Friend to consider the help which is received by private Members from various organisations and the Parliamentary draftsmen. I think that there may be two views on the subject of Private Members' Bills. This Bill had nothing to do with the Whips' Office. It concerns a subject in which I have long been interested, the affairs of local government, and I saw an opportunity to do something which local government authorities have desired for a long time. I have had assistance from the County Councils' Association, the National Farmers' Union, the river boards and a vast number of organisations, to produce a lucid Bill.
§ Mr. Williams
Let me make clear that I am not saying that this Bill came out of the Government Whips' Office. I know that my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) has done a tremendous amount of work on it and he has quoted the authorities from which he obtained assistance. But here we have a Clause inserted which would give the Government power to issue regulations. It is that aspect of the Bill which I dislike intensely.
1919 Protests have been made again and again against the technique of giving the Government these powers. The Government do not tell hon. Members that they may have a free vote on any regulations which may be issued. They are told that they will get a Whip telling them which way to vote. Pressure is put on back benchers by that means. I wish to register the strongest protest. If further legislation is introduced into the House next year giving the Government powers of this nature I shall obstruct it by every means in my power.
§ Mr. MacColl
I was tremendously impressed by the argument of my hon. Friend the Member for Dudley (Mr. Wigg). The only justification for this proposal is that we are dealing with Private Acts. If we were dealing with Acts which were in the ordinary public Statutes, I think there would be no case for it at all, but it is a matter of common knowledge, not only that Private Acts go a long way back in history, but that sometimes they are difficult to find. It is not unusual for local authorities to search their basements to dig out a Private Act passed in the eighteenth century and suddenly to find something which is still operative.
Although it is a pity that some of our legislative machinery of the past has become obscure and confused, it is a fact. Therefore Parliament, having accepted the general principle about misfeasance and laid down a general principle of law, which I hope we are doing now, it is not unreasonable to think that the application of that principle in detail to any of these odd pieces of legislation which may turn up should now be done by this procedure, which I gather from the hon. Gentleman is in the Highways Act which itself was a consolidating Measure. It went through the House not very long ago as a consolidating Measure. The House has approved of the general principle. It would be a pity to hold up this Bill on that point of detail.
§ Mr. Hay
I speak again, by leave of the House. I understand the views of hon. Members. They are determined, and rightly so, to protect the public interest in these matters against bureaucratic interference or any attempt at dictation, but there is the precedent in 1920 the Highways Act of 1959. I have since been informed that there is an earlier precedent, which certainly goes as far as the points suggested in these Amendments, and very much further because it deals with the amendment of the public general law to which the hon. Member for Widnes (Mr. MacColl) referred. That Act is one to which I have referred already, the Public Utilities Street Works Act, 1950. Part I of the Sixth Schedule of that Act contains powers of this kind—not necessarily on all fours with this proposal but intended to deal with the same sort of situation.
I hope my hon. Friend the Member for Exeter (Mr. Dudley Williams) and other hon. Members who feel anxious about this matter will take a very firm assurance from me that it is not the intention of the Minister or the Ministry to use any powers of this kind in an oppressive or unconscionable way. It is simply intended as a convenience to enable us to deal with an impossible situation which might easily arise and cause a great deal of trouble, not so much to Parliament or to a Ministry, but to a local authority which many years ago may have had a private Act of Parliament. I do not think I can do anything more, but I hope hon. Members will agree that on balance, although one does not like legislating in this particular way, the circumstances are such as to make it justifiable.
§ Amendment agreed to.
§ Further Amendments made: In page 10, line 1, leave out "that" and insert "the principal".
In line 4, at end insert:
(4) In the application for the purposes of this Act of section two hundred and eighty-eight of the principal Act (which provides for the alteration by order of provisions of local Acts which are redundant or inconsistent with that Act)—
§ [Queen's Consent on behalf of the Crown, signified.]—Bill read the Third time and passed, with Amendments.