HL Deb 17 July 1935 vol 98 cc458-65

Amendments reported (according to Order).

Clause 3 [Restrictions on use of vehicles for conveying sand or ballast]

LORD TEMPLE MORE

My Lords, my first two Amendments are drafting.

Amendments moved— Page 4, line 34, leave out ("by means of") and insert ("in or on") Page 4, line 42, leave out ("by means of") and insert ("in or on").—(Lord Templemore.)

On Question, Amendments agreed to.

Clause 8 [Marking of bottles for use as measures]:

LORD TEMPLEMORE moved to add to the clause: Provided that this section shall not affect the operation of the Weights and Measures Acts, 1878 to 1926, in relation to the use of any bottle as a measure otherwise than for the purpose of a transaction whereby some liquid is sold or supplied in the bottle, or in relation to the possession of any bottle for use as a measure otherwise than for that purpose.

The noble Lord said: My Lords, during the debate on the Committee stage of the Bill I promised to consider a suggestion made by the noble Earl, Lord Courtown, who, I observe, is not in his place. That suggestion, as I understand it, was that the use as measures of bottles marked in accordance with the provisions of the Bill should be legalised for the purpose of selling liquids in these bottles but not for any other purpose. This Amendment has that effect.

Before explaining it, I should like to deal with another point raised in the course of the debate on the Committee stage, which has some bearing on the subject. Several noble Lords expressed a fear that the Bill might have the effect of depriving the consumer of some of the protection which the law now very properly gives to him. This, I am advised, is not the case. In the case of milk, for instance, the protection given under the existing law is furnished by the fact that it is an offence for a dairyman to use, or have in his possession for use, an unstamped measure, or even a stamped measure which he knows to be inaccurate, or knowingly to sell milk which is deficient in measure. Apart from this, the consumer would, of course, have his ordinary rights against the dairyman for breach of contract where less than the stipulated quantity had been supplied. The Bill does not change the position in any way, except that it places the marked bottle on the same footing as a stamped measure, and this is justified by the fact that, when the precautions provided by the Bill are taken, the risk of a marked bottle being inaccurate will be no greater than the risk of a stamped measure being inaccurate.

The Bill does not, therefore, diminish the protection given to the consumer. On the contrary, it increases it. When all that is said, however, I recognise that there is some force in the noble Earl's contention that these bottles should be used as measures only for the purpose of selling liquid in them. It was for this purpose that the scheme embodied in the Bill bas been framed and this scheme, as your Lordships will appreciate, represents a new departure. It is, in a sense, experimental. There is, therefore, no need for the Bill to provide that bottles marked under this scheme should be used as measures for any other purpose than that for which they are really intended. After all, no one wants to use a milk bottle for measuring out oil into a can or beer into a jug. It is not a convenient shape for this purpose and there are other forms of measure which are much more suitable for this sort of use. Accordingly, the Amendment provides in effect that the recognition of a bottle marked under the Bill as a legal measure shall be confined to the purpose of transactions by which some liquid is sold or supplied in the bottle. My noble friend Lord Eltisley had put down certain Amendments to Clauses 10, 11 and 12, but has withdrawn these Amendments. They have been put down again by my noble friend Lord Strachie, but I venture to hope, after the explanation I have given, that the noble Lord will be satisfied and may see his way not to press his Amendments. I beg to move.

Amendment moved— Page 9, line 23, at end insert the said proviso.—(Lord Templemore.)

LORD STRACHIE

My Lords, I was asked by the County Councils' Parliamentary Committee to put down the Amendments which appear in my name on the Paper. While I cannot admit that the noble Lord in charge of the Bill has entirely met our objections in this matter, yet at the same time he has to a large extent done so. As I understand the position of the county councils and other local authorities, what they feel is that they are not allowed sufficient discretion in this matter. Even under the Amendment proposed by the noble Lord, this discretion will still be rather limited. Therefore it does not entirely do away with the objections of the County Councils Association. The principal objection taken by the local authorities, from the county councils downwards, is that they are subject to Departmental control by regulation. That, of course, is a thing which no county council likes. It is bad enough when such control is provided for in an Act of Parliament. The view of the local authorities is that these regulations might have the effect of requiring inspectors to spend a large part of every day in factories where these bottles are manufactured in large numbers, and might add enormously to the staff and duties of the county councils.

I should not be willing to withdraw my Amendments were it not for the fact that, on looking into the Bill very carefully, I find that he fears of county councils in this respect are really not justified, for this reason. I notice in the Bill, and I hope it will appear in all Bills, that these regulations have to be placed on the tables of both Houses of Parliament, and, if either House of Parliament takes objection to them, then they become null and void. Speaking as a county councillor myself, I am perfectly certain that if the Board of Trade were to bring in any regulation which in the eyes of the county councils were objectionable, members of both Houses of Parliament would not be slow to move the ejection of these regulations. It may not be so easy to do so in another place because of the difference of procedure, but in your Lordships' House there is no difficulty at all; and as this is a question in which Party considerations do not arise, I feel that, if such objectionable regulations were tabled, most of your Lordships would be prepared to oppose them and they would be thrown out and made null and void. That being so, I feel I am justified in not moving these Amendments, particularly as the noble Lord has gone some way to meet our objections. There is also the fact that the hour is late and there are five other Notices of importance on the Paper, including a very important Scottish Bill. I think it would be rather futile for me, and really be obstructive, if I were to press these Amendments when the noble Lord has already informed me that he is not prepared to accept them.

LORD ELTISLEY

My Lords, two points seem to have crept into these debates. The original point on which considerable discussion took place on the Committee stage was on whom responsibility for errors should rest. Those of us speaking on behalf of the Municipal Corporations Association and the County Councils Association took the view, and still hold the view, that the responsibility for errors should rest on, and remain with, the manufacturer of the bottle. We therefore tabled our Amendments again so that they might be reconsidered on the Report stage. As the result of an undertaking given by the noble Lord in charge of the Bill, he has to-day tabled an Amendment which goes some way towards meeting our point—namely, that a marked bottle may only be used for measuring the quantity of liquid in the bottle and not for measuring liquid to be sold in some other receptacle. Shortly, a bottle so marked shall not be used as a general measure. This Amendment does not go quite so far as we wanted, but it dues go sonic way to meet our objections, and is a sort of half-way house. Therefore we do not wish to press the Amendments which we tabled on the first occasion.

As regards the second point, which seems to arise on a later Amendment—namely, the question of regulations and the objection of local authorities to being tied hand and foot, which apparently will be the case—we feel that local authorities should be allowed the fullest possible measure of discretion in the performance of those duties which have been assigned to them by Parliament. They should not be subject to the views of any particular administrator who may be presiding over the affairs of the Board of Trade. We are fearsome that regulations may be enforced which will necessitate the appointment of a great many inspectors and that these inspectors will have to have their salaries paid by the local authorities. We think that the fullest possible measure of discretion should be allowed to rest with the local authorities, who are such important bodies and have such excellent officers. In view of what Lord Strachie has said, these Amendments are not now being pressed, but I have thought it right to ventilate the views of the fecal authorities on this matter.

On Question, Amendment agreed to.

Clause 9 [Licences to mark bottles]:

LORD COZENS-HARDY moved to insert in subsection (1): Provided that the qualifications, conditions and restrictions which may be prescribed for the purposes of this subsection shall be limited to such as appear to the Board of Trade to be necessary or expedient for the purpose of giving effect to this Part of this Act.

The noble Lord said: My Lords, I had put down this Amendment in a more specific form, limiting the conditions which may be imposed by the Board of Trade to those which, I understand, are actually contemplated by the Board of Trade of to-day. These conditions would deal with such matters as the applicant's ability to comply with regulations, his financial standing, making provision as to fees, as to the facilities for the inspector's work, and. as to the extent and frequency of inaccuracy which would justify the withdrawal of the licence. I have had the advantage of a conversation with the Board of Trade, and I gather that the Government are not opposed to the intention of this Amendment.

LORD TEMPLEMORE

We accept it.

LORD COZENS-HARDY

I am very grateful for the intimation that the Government are prepared to accept it, but I still think it gives the Board of Trade too wide and too absolute a discretion. I hope before the Bill gets further, that the Government will agree to omit the words "as appear to the Board of Trade" and the word "expedient," which seem to give the Board of Trade more complete and absolute power than is necessary.

Amendment moved— Page 9, line 32, at end insert the said proviso.—(Lord Cozens-Hardy.)

LORD TEMPLEMORE

I accept the Amendment.

On Question, Amendment agreed to.

VISCOUNT BERTIE OF THAME moved to insert at the end of the clause: Any person aggrieved by a decision of the Board of Trade to revoke or suspend his licence may apply to the County Court of the district in which he resides for an order for the removal of such revocation or suspension and the Court may make such order thereon as may seem just.

The noble Viscount said: My Lords, if your Lordships will look at subsection (4) of Clause 9, on page 10, you will see that: The Board of Trade may at any time revoke or suspend a licence if the holder thereof has contravened or failed to comply with any of the restrictions or conditions prescribed by virtue of this section, or has been convicted of an offence under this Part of this Act. It is not necessary, therefore, that he should have been convicted by a Court before he has his licence revoked or suspended, so there is all the more reason why he should have access to a Court. I suggest that the most Court suitable Court is the County Court of the district in which he resides. I beg to move.

Amendment moved— Page 10, line 5, at end insert the said paragraph.—(Viscount Bertie of Thame.)

LORD TEMPLEMORE

My Lords, I am afraid I cannot accept this Amendment for a legal reason which I will give as shortly as possible. The noble Viscount, Lord Bertie, during the debate in Committee, proposed that there should be an appeal to the Court from the arbitrary decision of a Minister to revoke a licence. To give effect to this principle the Amendment is unnecessary. Clause 9 as now worded obliges the Board of Trade to grant to any person, and to renew, a licence, if that person possesses the prescribed qualifications and complies with the prescribed conditions. Further, the Board are only empowered to revoke or suspend a licence if in fact the conditions prescribed by the clause arise. Consequently, if the Board fail to comply with this statutory duty of granting or renewing a licence or wrongly revoke or suspend a licence, the person aggrieved can already, under the existing law of the land, obtain redress by the appropriate proceedings in the High Court.

Such proceedings, known as mandamus, certiorari or declaration proceedings, according to the nature of the circumstances giving rise to them, are of a special order and are regarded as falling solely within the jurisdiction of the High Court. They relate either to the inherent jurisdiction of the High Court to supervise the exercise of judicial functions by subordinate Courts or other bodies entrusted with such functions, or to the public interest involved in compelling public bodies to carry out their statutory duties of a public nature or to refrain from acting in contravention of such duties, and it would be a serious departure from principle to confer jurisdiction of this kind upon the County Court.

This Amendment in terms provides for something much more than a right to appeal to the Court against decisions of the Board of Trade wrongly given It would confer upon the Court the right to review any and every decision of the Board to revoke or suspend a licence quite apart from any question as to whether there had been compliance with the terms of the Statute. It is submitted that there can be no reason for conferring upon the Court as a mere matter of discretion the right to review and modify an order made by the Board of Trade in accordance with the terms of the Statute. This reply has beer, given in somewhat legal terms. I do not pretend to be a lawyer nor do I think is my noble friend—

VISCOUNT BERTIE OF THAME

I am.

LORD TEMPLEMORE

I beg the noble Viscount's pardon. Then he will understand what I have read.

LORD COZENS-HARDY

My Lords, the legal statement which the noble Lord has given lends point to my request that he would consider before a later stage omitting the words "appear to the Board of Trade" and the word "expedient." If that is done the legal remedy which Le has elaborated would be greatly facilitated.

VISCOUNT BERTH OF THAME

My Lords, I am not going to press the Amendment. At the same time I think an application to the High Court would he much more expensive than one to the County Court. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 19 [Interpretation]:

LORD TEMPLEMORE

My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 13, line 15, leave out ("carrying") and insert ("conveying").—(Lord Templemore.)

On Question, Amendment agreed to.