HC Deb 29 June 1971 vol 820 cc255-65

Amendment made: No. 25, in page 25, line 9, leave out 'of its disclosure to the relevant person' and insert: 'to the public and the relevant person of its disclosure to him'.—[Mr. Millan.]

Mr. Bisbop

I beg to move Amendment No. 26, in page 25, line 18, at end insert: 'on the grounds that the decision is incompatible with the duty of the Authority under section 3(2) of this Act'.

Mr. Deputy Speaker

With this we are to take Amendment No. 27, in page 25, line 44, at end insert: (8) Any appeal against a decision of the Authority shall only be on points of law, or materially changed and unforeseeable circumstances.

Mr. Bishop

The Amendment refers to appeals against decisions of the Air Transport Licensing Board, and those who are familiar with the Edward's Report will know the concern expressed on the subject of air tranport licensing, particularly with regard to the appeals procedure and the number of appeals from decisions of the board. It may be, as Edwards alleges, that much of the dissatisfaction is misdirected, but there is no clear guidance of policy, and this causes trouble for the applicant, for the industry, and for the board.

Of greater concern is the fact that in the past—and even now—no one has really known what the basis of appeals should be, or on what basis they would be allowed or disallowed. Perhaps I may refer to the Edwards Report which deals with some of the problems relating to the appeals procedure. It say in paragraph 649: We have proposed earlier in this chapter that the Government should be required to issue statements of aviation policy in a statutory instrument. If this were done it would then be possible to say that an appeal against a licensing decision could only be made on one of two grounds. It is on the contention of Edwards that I base the case for the Amendment.

The Report goes on to state the two grounds:

  1. "(i) an appeal could be made on a point of law if it were alleged that the licensing authority had acted beyond its legal powers in making a decision; or
  2. (ii) an appeal could be made on the grounds that a decision of the licensing authority was perverse, i.e. could not reasonably be brought within the declared policy of the Government as set out in the statutory instrument …
We believe that under this arrangement there are likely to be fewer appeals than under the existing system. Those are important words from a Committee which looked into the matter with great care.

The basis of the Amendment is in keeping with the Labour Government's White Paper on Civil Aviation published in 1969. That White Paper accepted that the grounds for appeal in matters of service licences should be limited to the issue of consistency of a decision by the Board within a declared policy, and that is shown by the extract that I have read from Edwards. There is no reference to a policy on which applicants, the industry, or the Board might work, and that does not improve the appeals procedure for which Edwards made such an eloquent demand.

Clause 3(2), with which the Amendment is associated, lays an obligation on the Secretary of State, after consultations with the Authority, to give guidance to the Authority in writing with respect to the performance of the functions conferred upon it. That Clause requires that it shall be the duty of the Authority to carry out those functions in such a manner as it thinks fit in accordance with the guidance given to it from time to time.

6.15 p.m.

The aim to restrict the number of appeals is in keeping with the Edwards Report and with the White Paper. In Committee the Minister claimed that he had been advised that if the grounds of appeal were to be restricted by way of reference to Clause 3(2) it would be essential—nothing less than that —to express the guidance in very precise terms, and in terms which contained no possibility of internal conflict. I should have thought that it was desirable to give the authority consistent guidance, and guidance on which it could exercise its discretion. On the other hand, if the guidance is too wide— and this is what the Edwards' complaint was about—an appeal is not only meaningless, but impossible, for there will be no opportunity for applicants, or the industry generally, to decide on what basis an appeal is granted or refused.

We claim in the Amendment that there must be provision for an appeal on grounds of inconsistency of policy, or conflict with guidelines, or that the Authority has acted outside its power and outside its legal responsibility. In other words, we provide that an ultra vires situation is a basis for appeal. When we discussed a similar Amendment in Committee, the right hon. Gentleman said that he did not want to be so precise in the terms of guidance as would put the Authority in a straitjacket, but later he said that we must lay down the guidance to the Authority either in the Bill or in the guidance that we give in the White Paper before the Authority comes into being in absolutely clear, precise and uncontroversial terms. Otherwise nobody will know whether or not they have an appeal that will stand up."—[OFFICIAL REPORT, Standing Committee A, 18th May, 1971; c. 423–7.] That is precisely what the Amendment is all about. We say that that can be achieved only if we strengthen subsection (5)(a) by saying quite clearly that it is not only right to appeal from any decision of the Authority with respect to an application for an air transport licence, but that the basis of an appeal shall be incompatibility or inconsistency with the duties laid on the Authority under Clause 3(2). We believe that to refuse to support an Amendment such as this would be to leave the Authority and applicants dangling in a state not only of indecision, but of injustice. I hope, therefore, that the Minister will accept the Amendment, and thereby go some way towards resolving some of the problems that have been thrown up so clearly in the Edwards Report, and provide the basis on which those who want to appeal against a decision of the Authority can do so in very clear terms.

Mr. Anthony Grant

When we discussed the substance of the Amendment in Committee, the hon. Member for Glasgow, Craigton (Mr. Millan) made an excellent speech. The hon. Member for Newark (Mr. Bishop) has again put forward a good case today. For all that, however, I must continue to resist these arguments for the same reasons as those for which my right hon. Friend resisted them in Committee.

I sympathise with the purpose of the Amendment and I wish that it could have been achieved, but the difficulty is one of legal principle. If we were to restrict the grounds of appeal in this way, the guidance to be given under Clause 3(2) would have to be expressed in very precise terms which contained no internal conflict. Otherwise, the parties would not be able to tell whether there were grounds for appeal. Moreover, to restrict the grounds of appeal in this way would mean that there was no basis for an appeal on any matter which was not referred to in the guidance. To sustain such a restriction, therefore, it would be necessary to have guidance which was all-embracing and left the Authority virtually no discretion.

The hon. Member for Craigton said in Committee, dealing with giving guidance:

… if we do it in too much detail we face the difficulty that, while we are ostensibly giving the Authority a good deal of power, in practice we may be considerably limiting it by not enabling it to adjust its policy to changed circumstances. In sound words of wisdom later, he said: if it goes into too much detail, when it is faced with a problem, the Authority will have nothing to do … except to look up the guidance at the appropriate paragraph and take the decision accordingly."—[OFFICIAL REPORT, Standing Committee A; 29th April, 1971, c. 153, 166.] That is precisely our dilemma, of course. If we were obliged to express the guidance in this way, we might as well not set up the Authority at all. We would do better, in those circumstances, to have the licensing done by the Secretary of State, since then we could be a little more flexible in our decisions.

The Amendment would give rise to a further difficulty. In Clause 3 the duty of the Authority, in subsection (1) is to act … in the manner which it considers is best calculated—to secure and in such manner as it considers is in accordance with the guidance in subsection (2). It would be difficult for any appellant to show that any decision was incompatible with a duty so expressed, as distinct from being incompatible with the objectives or the guidance. The duty was expressed in that way so as to minimise the scope for legal action about whether the Authority had done its duty in a particular case, and it would be unwise to depart from this.

Therefore, much though I still sympathise with the purpose of the Amendment, I must continue to advise the House to reject it—partly because of the objection which I just stated to the wording, but also and mainly because of the way in which the discretion which we all want the Authority to have would be undermined. We do have to steer between Scylla and Charybdis—the rock of rigidity and the whirlpool of uncertainty.

I cannot accept Amendment No. 27, either. As drafted, it would be unworkable. The Secretary of State is not an appropriate person to decide a point of law. In this country, that is for the courts, and there is nothing in the Bill to prevent an aggrieved party taking a matter to the courts.

Then there is the reference to "materially changed" or "unforeseeable" circumstances. This wording is ill-conceived. Who can say that a circumstance is unforeseeable? The Amendment would convey no effective right of appeal, or one so insecurely based as not to be worth having. The Secretary of State's intention is to uphold the Authority's decision unless there are powerful reasons to the contrary. If that is what the Amendment is intended to achieve, unfortunately it does not succeed. For all these reasons, and despite my sympathy with their intentions, I must advise the House to reject both Amendments.

Mr. Leslie Huckfield

I was encouraged to hear the Minister say that, in future, the Secretary of State proposes to uphold some of the decisions of the Civil Aviation Authority. I only wish that that had been the case in the past. I am sure that he knows that, on most of the most crucial fares and rights decisions on which the A.T.L.B. has pronounced since 1960, the Secretary of State has over-ruled it on the basis of a completely different policy. Only this year, when the Board decided against the fares increase application of B.E.A. and the domestic carriers, the Secretary of State over-ruled it. That fits in very nicely and coincidentally with the pledge to reduce prices at a stroke. Whatever the Minister may say, the Secretary of State and the Government will still be the only Civil Aviation Authority in this country.

The whole tone and presentation of the Bill has been that the Authority will be an independent and autonomous body and a fine example of delegated legislation. But throughout we have had examples of crucial policy decisions which the Authority will not be allowed to take. For instance, under Clause 3, the Authority is told precisely what to do. It must favour Caledonian/B.U.A. Under Clause 4(3) the Secretary of State will be able to tell the Authority exactly what to do, so that, even if he changes his mind and wants the Authority to take a different direction, he can simply tell it to do so. The Authority will have no right to initiate decisions on traffic rights and international fares.

But apart from being able to lay down the guidelines for the Authority under Clause 24(2), the Secretary of State reserves the right to suspend its judgments while he thinks of a new policy. So apart from the guidance given under Clauses 3 and 4, if he decided to change his mind because things were not going well with their vaunted second force, he could tell the Authority to stop what it was doing while he thought of a new policy.

If anyone disagrees with any of the Secretary of State's directives to the Authority, he can appeal to the Secretary of State. I cannot help thinking that, if the Secretary of State had wanted to set himself up as the prosecutor, judge, jury and entire legal and licensing system, he could not have done a better job than has been done by this Bill.

We are seeing a shamefaced attempt by the Secretary of State to become the civil aviation authority in Britain. Any disagreement with the C.A.A's decisions will be taken on appeal to him. I have called it "Mr. Noble's poodle" because this is not a watchdog. It does not have any teeth or even gums. It is a weak-kneed little creature which can be trampled over by airlines and totally disregarded by foreign carriers.

Even Edwards recommended that the Civil Aviation Authority should have a certain degree of independence from Ministerial policy. As hon. Gentlemen opposite are constantly testifying to the wisdom of Edwards, why have they not followed it in this matter? Anybody aggrieved by a decision of the Authority will appeal to the Minister, and an appeal can be lodged on virtually any ground. There is no restriction. Even worse, the Minister does not have to explain his decision in full or publicly. Indeed, had he had to explain his recent decision over the fares increase there would have been a public outcry because he was permitting a domestic trunk route fares increase.

If we are to have appeals, they should be to an independent judicial body, as Edwards suggested. Apart from that, all appeals and case histories should be published and made publicly available. We recall how the Secretary of State overruled the decision in the Cunard-British Eagle case in 1961, how he overruled the decision in the trunk routes application in 1965 and how the refusal of the fares increase recently has been overruled by him. I cannot see anything in the Bill to stop the right hon. Gentleman overruling the Authority even more.

Because I am in favour of a strong independent civil aviation authority, I tabled my Amendment. Unless the right

hon. Gentleman can explain how the independence of the Authority can be established, let alone guaranteed, this cannot be considered a satisfactory state of affairs.

Question put, That the Amendment be made: —

The House divided: Ayes 141, Noes 166.

Division No. 400.] AYES [6.34 p.m.
Albu, Austen Colding, John Molloy, William
Allen, Scholefield Gourlay, Harry Morgan, Elystan (Cardiganshire)
Atkinson, Norman Grant, George (Morpeth) Morris, Alfred (Wythenshawe)
Bagier, Gordon A. T. Griffiths, Will (Exchange) Morris, Charles R. (Openshaw)
Barnett, Joel Hamilton, William (Fife, W.) Mulley, Rt. Hn, Frederick
Beaney, Alan Hamling, William O'Malley, Brian
Bishop, E. S. Hannan, William (G'gow, Maryhill) Orme, Stanley
Blenkinsop, Arthur Harrison, Walter (Wakefield) Oswald, Thomas
Booth, Albert Heffer, Eric S. Palmer, Arthur
Brown, Hugh D. (G'gow, Provan) Huckfield, Leslie Pannell, Rt. Hn. Charles
Brown, Ronald (Shoreditch & F'bury) Hughes, Robert (Aberdeen, N.) Pavitt, Laurie
Buchan, Norman Hughes, Roy (Newport) Pentland, Norman
Cant, R. B. Jay, Rt. Hn. Douglas Prescott, John
Carter, Ray (Birmingh'm, Northfield) Jenkins, Hugh (Putney) Price, J. T. (Westhoughton)
Carter-Jones, Lewis (Ecclee) John, Brynmor Price, William (Rugby)
Clark, David (Colne Valley) Jones, Barry (Flint, E.) Probert, Arthur
Cocks, Michael (Bristol, S.) Jones, Gwynoro (Carmarthen) Rankin, John
Coleman, Donald Jones, T. Alec (Rhondda, W.) Robertson, John (Paisley)
Concannon, J. D. Judd, Frank Roderick, Caerwyn E.(Br'c'n&R'dnor)
Corbet, Mrs. Freda Kaufman, Gerald Roper, John
Dalyell, Tarn Kelley, Richard Sandelson, Neville
Darling, Rt. Hn. George Kerr, Russell Sheldon, Robert (Ashton-under-Lyne)
Davies, G. Elfed (Rhondda, E.) Kinnock, Neil Short, Rt. Hn. Edward (N'c't1e-u-Tyne)
Davies, Ifor (Gower) Lamond, James Short, Mrs. Renée (W'hampton, N. E.)
Davies, S. O. (Merthyr Tydvil) Latham, Arthur Silkin, Rt. Hn. John (Deptford)
Davis, Clinton (Hackney, C.) Lawson, George Sillars, James
Davis, Terry (Bromsgrove) Leadbitter, Ted Silverman, Julius
Deakins, Eric Lee, Rt. Hn. Frederick Skinner, Dennis
de Freitas, Rt. Hn. Sir Geoffrey Leonard, Dick Spearing, Nigel
Dell, Rt. Hn. Edmund Lestor, Miss Joan Stewart, Rt. Hn, Michael (Fulham)
Dempsey, James Lewis, Ron (Carlisle) Strang, Gavin
Doig, Peter Lipton, Marcus Thomson, Rt. Hn. G. (Dundee, E.)
Dormand, J. D. Mabon, Dr. J. Dickson Tinn, James
Driberg, Tom McBride, Neil Torney, Tom
Dunnett, Jack McCann, John Tuck, Raphael
Eadie, Alex McElhone, Frank Varley, Eric G.
Mackenzie, Gregor Wainwright, Edwin
Edwards, William (Merioneth) Maclennan, Robert Weitzman, David
Ellis, Tom McMillan, Tom (Glasgow, C.) Wellheloved, James
Evans, Fred Marsden, F. Whitlock, William
Faulds, Andrew Marshall, Dr. Edmund Willey, Rt. Hn. Frederick
Femyhough, Rt. Hn. E. Mason, Rt. Hn. Roy Williams, W. T. (Warrington)
Fisher, Mrs, Doris (B'ham. Ladywood) Mayhew, Christopher Wilson, Alexander (Hamilton)
Fletcher, Ted (Darlington) Meacher, Michael Woof, Robert
Ford, Ben Mellish, Rt. Hn. Robert
Forrester, John Mikardo, Ian TELLERS FOR THE AYES:
Freeson, Reginald Millan, Bruce Mr. Ernest Armstrong and
Galpern, Sir Myer Miller, Dr. M. S. Mr. Joseph Harper.
Gilbert, Dr. John Mitchell, R. C. (S'hampton, Itchen)
Adley, Robert Brewis, John Curran, Charles
Allason, James (Hemel Hempstead) Brown, Sir Edward (Bath) d'Avigdor-Goldsmid, Sir Henry
Astor, John Bullus, Sir Eric d'Avigdor-Goldsmid, Maj. -Gen. James
Atkins, Humphrey Carlisle, Mark Drayson, G. B.
Baker, Kenneth (St. Marlyebone) Channon, Paul Dykes, Hugh
Baker, W. H. K. (Banff) Chapman, Sydney Edwards, Nicholas (Pembroke)
Batsford, Brian Chataway, Rt. Hn. Christopher Elliott, R. W. (N'c'tle-upon-Tyne, N.)
Beamish, Col, Sir Tufton Churchill, W. S. Eyre, Reginald
Benyon, W. Clark, William (Surrey, E.) Fell, Anthony
Boardman, Tom (Leicester, S. W.) Clegg, Walter Ferner, Mrs. Peggy
Boscawen, Robert Cockeram, Eric F idler, Michael
Bowden, Andrew Cooke, Robert Fisher, Nigel (Surbiton)
Boyd-Carpenter, Rt. Hn. John Cormack, Patrick Fookes, Miss Janet
Bray, Ronald Costain, A. P. Fortescue, Tim
Fox, Marcus Loveridge, John Redmond, Robert
Gibson-Watt, David Luce, R. N. Reed, Laurance (Bolton, E.)
Gilmour, lan (Norfolk, C.) MacArthur, Ian Rees-Davies, W. R.
Glyn, Dr. Alan McCrindle, R. A. Rhys williams, Sir Brandon
Goodhew, Victor McLaren, Martin Ridley, Hn. Nicholas
Gorst, John McMaster, Stanley Roberts, Michael (Cardiff, N.)
Gower, Raymond McNair-Wilson, Michael Roberts, Wyn (Conway)
Grant, Anthony (Harrow, C.) Magrnnis, John E, Rost, Peter
Gray, Hamish Mather, Carol Russell, Sir Ronald
Green, Alan Mawby, Ray Scott-Hopkins, James
Grylls, Michael Maxwell-Hyslop, R. J. Shaw, Michael (Sc'b'gh & Whitby)
Gummer, Selwyn Meyer, Sir Anthony Simeons, Charles
Hall, Miss Joan (Keighley) Mills, Peter (Torrington) Skeet, T. H. H.
Hamilton, Michael (Salisbury) Mills, Stratton (Belfast, N.) Smith, Dudley (W'wick & L'mington)
Hannam, John (Exeter) Miscampbell, Norman Soref, Harold
Harrison, Brian (Maldon) Mitchell, David (Basingstoke) Spence, John
Harrison, Col. Sir Harwood (Eye) Moate, Roger Sproat, lain
Hicks, Robert Molyncaux, James Stanbrook, Ivor
Hiley, Joseph Money, Ernle Steel, David
Hill, James (Southampton, Test) Monks, Mrs. Connie Stewart-Smith, D. G. (Belper)
Holland, Philip Monro, Hector Stoddart-Scott, Col. Sir M.
Hooson, Emlyn Montgomery, Fergus Taylor, Sir Charles (Eastbourne)
Hordern, Peter More, Jasper Taylor, Edward M.(G'gow, Cathcart)
Hornby, Richard Morgan, Geraint (Denbigh) Taylor, Frank (Moss Side)
Hornsby-Smith, Rt. Hn. Dame Patricia Morrison, Chartes (Devizes) Tebbit, Norman
Howe, Hn. Sir Geoffrey (Reigate) Mudd, David Thatcher, Rt. Hn. Mrs. Margaret
Howell, David (Guildford) Murton, Oscar Thomas, Rt. Hn. Peter (Hendon, S.)
Howell, Ralph (Norfolk, N.) Nabarro, Sir Gerald Tilney, John
James, David Neave, Airey Trafford, Dr. Anthony
Jopling, Michael Noble, Rt. Hn. Michael van Straubenzee, W. R.
Kaberry, Sir Donald Nott, John Waddington, David
Kellett-Bowman, Mrs. Elaine Onslow, Cranley Walder, David (Clitheroe)
Kilfedder, James Osborn, John Walters, Dennis
King, Evelyn (Dorset, S.) Owen, Idris (Stockport, N.) Warren, Kenneth
King, Tom (Bridgwater) Page, Graham (Crosby) Weatherill, Bernard
Kinsey, J. R. Page, John (Harrow, W.) Wells, John (Maidstone)
Kitson, Timothy Parkinson, Cecil (Enfield, W.) Woodhouse, Hn. Christopher
Knight, Mrs. Jill Peel, John Worsley, Marcus
Knox, David Pounder, Rafton
Langford-Holt, Sir John Prior, Rt. Hn. J. M. L. TELLERS FOR THE NOES:
Le Marchant, Spencer Proudfoot, Wilfred Mr. Paul Hawkins and
Lloyd, Rt. Hn. Geoff rey (Sut'nC'dfield) Pym, Rt. Hn. Francis Mr. Keith Speed.
Longden, Gilbert Quennell, Miss J. M.
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