HC Deb 04 July 1967 vol 749 cc1642-51
Dr. Mabon

I beg to move Amendment No. 32, in page 58, line 37 at the end to insert: 'boat includes any hover vehicle or craft being a vehicle or craft designed to be supported on a cushion of air and which is used on or over water;' We reflected on this in earlier discussion about aircraft. I do not want to argue about whether a hovercraft is a boat or an aircraft. But it is important that it should be beyond doubt that the byelaws which the Bill empowers local planning and other authorities to make for the regulation of the use of boats for recreation should apply to hovercraft. That is the purpose of the Amendment. We have borrowed it from Clause 101 of the current Road Traffic Bill, so we are also calling in aid the Ministry of Transport.

7.15 p.m.

Mr. Monro

Had we expected this Amendment to the interpretation Clause during the Committee stage, we could have had a short debate then. We were dealing with the noise of outboard motors and so on that might provoke people living in towns and villages and seaside resorts. Now we have to consider also the position of hovercraft.

I shall not try to draw the Minister into a discussion of whether a hovercraft is a boat or not, but has he discussed this Amendment with the industry from the practical point of view? It is not easy to redesign a hovercraft to meet the specifications of what may be one or perhaps more byelaws in Scotland affecting noise.

The first point is that we want to look to the future, as we have done throughout the Bill. It may well be that, in some years' time small, single-seater or two-seater hovercraft or taxi hovercraft will be crossing sea lochs or inland lochs. Hovercraft might become an important method of transport. It would be a pity if this progress were stifled because of one or two or more rather Victorian-minded local authorities which brought in byelaws forbidding their use because of a little noise.

The hon. Gentleman was clear about the sea during the Committee stage. He indicated that the Bill applied only to within 1,000 yards of the shore. Provoked by the hon. Member for Central Ayrshire (Mr. Manuel), he also said that it applied to the low water mark. There is a big difference between 1,000 yards from the shore and low water mark, and we seek clarification.

The hon. Gentleman will remember the hovercraft service on the Clyde and how it got a very cool reception from some local authorities because of noise. If a local authority were able to bring in a byelaw defeating the objectives of a hovercraft transport service on the Clyde, then private enterprise or public enterprise, whichever was involved, would have to give up running that service. Does not the hon. Gentleman feel that he has gone a little too far by including hovercraft? Has he realised all the implications?

Dr. Dickson Mabon

There would be ambiguity in the Bill without the Amendment. There would be doubt as to whether or not hovercraft were covered. That would be undesirable. The case for the hovercraft has yet to be established and, if there are Victorian local authorities, one must argue with them and convince them accordingly. They have an essential right to make byelaws and it is obviously better that we should define a hovercraft as a boat rather than leave the situation in ambiguity, with all the legal actions which might ensue, for example.

I do not think that the absence of the Amendment would change any attitudes or make it easier to get the hovercraft accepted. I remember the controversy referred to by the hon. Gentleman. I regret that it turned out as it did. I am sorry that Largs Town Council took such an attitude, but I do not think that omission of the Amendment would make the situation easier. We would not change attitudes by leaving ambiguity in the Bill.

Amendment agreed to.

Mr. Stodart

I beg to move Amendment No. 34, in page 59, line 36, to leave out 'includes' and to insert 'shall not include'.

This is designed to ascertain the Government's intention. It would bite on Clause 50, which permits local authorities and others to provide modest meals and refreshments—refreshments in this case including exciseable liquor.

I am not moving this Amendment—which would exclude exciseable liquor from refreshments which could be provided—because of any desire to prevent local authorities from taking part in competition with the more usual purveyors of exciseable liquid refreshment. There is a proviso in the Clause which has a certain effect, but the presence of these words raises a matter of some importance with regard to the granting of licences to local authorities in Scotland. This is breaking entirely new ground.

The exclusion of a Clause of this nature from any Scottish legislation has always been based upon the objection that those who grant the licences in Scotland are the local authorities themselves. The position in England is entirely different. In the National Parks Act, which one might well describe as the forerunner of the Bill, there was a provision which deliberately included exciseable liquor among the refreshments which a local authority in England and Wales could provide.

This issue has often arisen in Scottish legislation and the House has always come to the same conclusion. The best known reference is to be found in the Civic Restaurants Bill of 1947. Mr. Strachey, who was then the Minister of Food, said: There are, however, very real difficulties, which we discussed exhaustively upstairs. Hon. Members who represent Scottish constituencies convinced me that these difficulties were considerable. In Scotland, the licensing authority and the local authority are, for this purpose, the same body, and one cannot, therefore, get a double check, as one can in England and Wales where not only the local authority has to make up its mind whether it wishes to have a licence or not, but another separate and independent authority, the licensing authority, has to consider the application."—[OFFICIAL REPORT, 17th February, 1947; Vol. 433, c. 818.] There has been a string of local authority provisional orders seeking the right, broadly speaking, to have licences to trade. The most recent was that which concerned the City of Edinburgh, where it was unanimously agreed that permission should not be granted. This is not something which applies only to cities or burghs. In a county, where it would be reasonable to suppose that most of the countryside lies, the licensing authority consists of 50 per cent. magistrates and 50 per cent. justices of the peace. Therefore, there still remains the difficulty of being a judge upon one's own application.

It is not only a county which may be involved in this matter, because there is the reference which we discussed earlier today, in Clause 2(2) to extensive areas of open land within burghs. Therefore, a burgh which had been consistently refused this power, as has Edinburgh recently, would be asked under this provision to break entirely new ground. It is to ascertain the intentions of the Government that we have put down this Amendment which is somewhat exploratory.

Mr. MacArthur

I hope that the Minister will give great consideration to the points raised by my hon. Friend the Member for Edinburgh, West (Mr. Stodart). As he knows, I am familiar with the Edinburgh case, but I will not refer to it in any depth.

What concerns me is that this interpretation Clause invites reference to Clause 50, which makes a substantial change in the refreshment-providing powers of local authorities in Scotland. I do not want to start a debate about whether local authorities should have power to provide exciseable liquor within premises of which they themselves are the licensing authorities—there are several views about that. I am not certain which way the final decision should go, but I am clear that we should not change the present accepted state of things in Scotland by a small part of an interpretation Clause. This is not the way to extend local authority powers.

Clause 50, upon which this Interpretation Clause has most hearing, says, A local authority may acquire land compulsorily … for the provision of refreshments and so on.

To say that the refreshment provision includes the sale of excisable liquor and the local authority under the present state of the law will decide whether it will grant itself a licence to sell exciseable liquor and, having awarded itself a licence, can compulsorily acquire the land on which the refreshment house is to stand, would be going too far. The House must understand that I do not want to make declarations about what local authorities should or should not do. That is a matter which must be debated, because there is a large area of doubt. What I am clear about is that we should not change the accepted state of the law in Scotland almost by accident through the provisions of an interpretation Clause of this kind.

Dr. Dickson Mabon

I must confess that when I saw this Amendment on the Notice Paper I was stunned. While we dispatched the Bill very rapidly in about 10 sittings upstairs and we did not touch on this, I thought, it being such a large issue, that we would have had some debate if there was any doubt. I am glad that we have the chance now to explore it further, because I will be able to make a comment about how I see the consequences of this on the present circumstances.

I say straight away to the hon. Member for Edinburgh, West (Mr. Stodart) that a lot has happened since 1947. The Guest Committee has made a number of pronouncements and there is the Licensing Act, 1959. These are all relevant considerations in this matter.

7.30 p.m.

I know that the hon. Member for Edinburgh, West and I would certainly welcome the possibility of refreshments after long hikes over long trails. He was talking about the excellent hostelry at Carafrae Mill, which I have not visited, and he said that he would love to be there after walking across the Lammer Law. I will not say that noses lit up, but certainly there were murmurs of "Hear, hear" at the mention of this hostelry in Committee. I thought that there was no argument about the desirability of those seeking alcoholic refreshment at the end of a long walk being able to get it, at the discretion of good people, or good people sponsored by the local authority.

I assure the House that the Bill does no alter the Licensing Acts in Scotland in any way. It will remain the position that a certificate under those Acts can be granted only to an individual. Therefore, neither the Forestry Commission nor a local planning authority as such would be able to hold a licence. If it wanted alcoholic refreshments to be available in the countryside, one would normally expect either body to arrange for someone else to do it.

I appreciate what has been said about the position of a local authority vis-à-vis a licensing court. Some people may feel that it is wrong that local authorities should, let land for use for licensed premises, because some of their members would be on the licensing courts which would decide whether a certificate should be granted. However, this is a matter which the Guest Committee specifically considered. I direct the attention of hon. Members to Cmnd. 2021, which is the Second Report of the Guest Committee which in Conclusion No. 61 said that it recognised that it would not be appropriate to introduce any statutory requirement to prevent common membership of licensing courts—which are not courts in the ordinary sense—and of local authority housing and planning committees, but that there was no reason why the licensing courts should not preserve complete independence in the exercise of their discretion.

The Bill, therefore, seeks to make no judgments about whether excisable liquor should or should not be provided. It merely provides the permissive power for suitable arrangements to this end to be made entirely at the discretion of the local authority, or other body concerned, and in accordance with all the usual licensing regulations.

Mr. MacArthur

I may have misunderstood, but surely it is the position that if the local authority is dissatisfied in its own judgment with the standard of the services provided, it can then set up as a trader and would then become the refreshment trader in its own right.

Dr. Mabon

If it chose to do that, it would not be a licensee. It might have a licensee in its own employ and it might have a licensee as an agent, or have a firm deliberately brought in, in which case the firm would be acting as an agent. But that would not change the law of Scotland. The licence would still have to be held by an individual answerable to the licensing authority, no matter by whom he was employed or on whose behalf. He would manage the house, but the law would be unchanged.

Mr. MacArthur

He would be employed under the licence of the local authority.

Dr. Mabon

Conceivably he could be, but I do not see anything wrong in that. If it is proper for an authority to want to augment provision for accommodation, meals and refreshment and so on, I do not see what is wrong with the fact that it would be involved in this activity. It would still have to conform absolutely to the licensing laws, without exception, the licence being held by the indivdual. The Guest Committee has emphasised this and although I readily concede that the Guest Report is not the law, the Guest Committee says that it sees no reason why licensing courts should not preserve complete independence in the exercise of their discretion even where local authority planning and housing committees are concerned.

I do not think that this power will be abused in Scotland, because the Scottish public is so sensitive about these matters which are much more vigorously debated in Scotland than in England. Any planning authority embarking on this course would do so knowing that it had the overwhelming consent of its electorate—not just a marginal consent—because, as we all know, there is much feeling about this matter. I am sure that the Opposition do not intend in any way deliberately to exclude this possibility. I am certain that the comparable Bill for England and Wales will make provision of this kind and that there will be no argument about it. It is only in Scotland where we have doubts. I respect the Scottish position, which is why I assure the House sincerely that the licensing laws will not he upset in any way. This is merely a permissive power for suitable arrangements to this end to be made entirely at the discretion of the local authority or other body concerned and in accordance with all the usual licensing regulations.

Mr. Brewis

I am sure that if he were present my hon. Friend the Member for Dumfries (Mr. Monro) would ask how this would apply to a State Management District.

Dr. Mabon

I am glad that he is not here, because with all his experience on the local advisory committee he might be able to catch me out on several matters. I have taken up several of the matters which he raised in Committee and which required a great deal of examination, but I would not like to answer that question off the cuff. I should like to look into that to see whether I ought to write yet another letter to the hon. Member for Dumfries about the effect of the Bill on State management. However, I have chosen my words about the position in the rest of Scotland deliberately.

The hon. Member for Edinburgh, West said that this was an exploratory Amendment. It has produced a useful discussion which may be continued elsewhere, but I think that he will agree that it would be a mistake to incorporate the Amendment into the Bill.

Mr. Stodart

By leave of the House, may I say that the hon. Gentleman has reassured me considerably. I understand him to have given an absolute assurance that there is no change of any kind made or contemplated by Clause 50. From his example it would seem possible for an individual employed by a local authority to be a licensee and for that to lead to just the sort of difficulty which I foresaw. What worries me is not that it would be the local authority which would be doing the trading, but the fact that even if it were an employee who held the licence it would be most invidious for the person who was paid by the authority to run its business also to be the person to whom the licence was given. If at any time it were decided to reduce the number of licences in that local authority area, it would be extremely difficult for the licensing authority, which is the local authority, to make a completely detached decision about a person in its employ.

The hon. Gentleman said that he was certain that in the English Bill which is to come there would be a provision about this subject. I am certain that there will be. I agree, of course, that much water has passed under the bridge since 1947, but the whole system of granting licences is utterly different in England and Wales and the difficulties which I have described do not arise.

This has been a valuable discussion. This is certainly not the time to embark upon a long debate about licensing regulations. However, can the hon. Gentleman say whether there is in Scotland at this time any example of someone employed by a local authority to trade in liquor on the authority's behalf? It would be considerable news to us if there were.

Dr. Dickson Mabon

Off the cuff, I could not say that. I could not give an example. I do not think that there is one. In the 1949 Act the English incorporated this provision. This is why I am confident that in their countryside Bill they will have this provision, and I think that it will be somewhat invidious if we do not have a similar provision in our Bill; but I take the point made by the hon. Gentleman. The licensing system in Scotland is different from that in England, but it is not right to say that a licensing court is, after all, the local authority. This is precisely the view against which the Guest Committee was protesting. A local authority does not mandate its magistrates. Nobody can mandate a magistrate. He can complain of interference with his duties if any other body seeks to mandate him, or tell him what he should do in his capacity as a magistrate.

It is true that he is a magistrate because he is a member of a local council and has been chosen by his fellows to act as a magistrate. His magistracy derives from his membership of the local authority, but his actions are not those of a man answerable to a local authority. He is a member of a licensing court, and this is why I think the distinction must be made. The Guest Committee said that the licensing court should preserve its complete independence in the exercise of its discretion. Perhaps we should have a different system of licensing in Scotland, I do not know. This is a big question to raise on the Amendment. We do not believe that this provision is in breach of the present licensing law, or that it will in any way put local authorities in a more advantageous position than any other bodies in regard to the licensing system.

Mr. MacArthur

Surely the hon. Gentleman will agree that this Clause represents, if not a change in the law, a large break with custom, in that it gives power to local authorities to employ an agency directly, a man to whom it could grant a licence in a building on land which it could acquire compulsorily for this purpose. This, surely, is a large departure which should not be carried through by means of an interpretation Clause provision.

Dr. Mabon

With respect to the hon. Gentleman, we are taking the argument to the extreme in this case. I am not complaining, I am merely saying that it is an extreme example.

The Interpretation Clause applies to the Bill as a Bill, not to the whole gamut of local authority activities. It is circumscribed by the various powers in the Bill dealing with refreshments, no more than that. It is not a general principle which is being applied. It is simply the application of the countryside code in England and Wales to that in Scotland, and I think that it would be invidious to be different in this respect. If defects arise from this, we should take other means to ensure that they were corrected, but I do not think that it would be right to weaken the Bill to this extent.

I am seized of the point which has been made, and my only regret is that it has come up so late in our discussions. Perhaps we should have thought about this for longer, and in more detail in Committee, but both sides are to blame. I did not spot it, nor did the Opposition. Perhaps we will have to discuss this matter at another stage.

Mr. Stodart rose—

Mr. Speaker

Order. I thought that the hon. Member had replied to the debate.

Mr. Stodart

I was going to ask leave to speak again and say that in view of what the hon. Gentleman has said, and because I think that his words are of value and can be considered in another place, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.