AIR NAVIGATION BILL.

HL Deb 20 July 1936 vol 102 cc35-93

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Swinton.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1 [Agreements for subsidising air transport]:

THE SECRETARY OF STATE FOR AIR (VISCOUNT SWINTON)

The Amendment to this clause down in my name is drafting. I beg to move.

Amendment moved— Page 2, line 11, leave out (" (if any) as may be ") and insert ("as may have been").—(Viscount Swinton.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:

Delegation of certain functions of Secretary of State as respects civil aviation.

2.—(1) The Secretary of State may by order provide for delegating to a body appearing to him to be so constituted as to consist of—

1. (a) persons substantially representative of the interests concerned with civil aviation (and in particular of operators, constructors and insurers of aircraft), and
2. (b) at least one person appointed by the Secretary of State as being an independent person,

such of the administrative functions of the Secretary of State with respect to the matters to which this subsection applies as may be specified in the order, and for entrusting to that body such advisory functions in connection with any of the said matters as may be so specified; and an order under this section may direct that any fees for the time being prescribed by an Order in Council under Part I of the principal Act in relation to matters with respect to which functions are delegated under this section to such a body as aforesaid, shall be paid to, and may be retained by, that body:

Provided that any such body as aforesaid shall be so constituted as to include among its members at least one person who has had not less than five years' professional experience as a pilot of civil aircraft.

VISCOUNT SWINTON moved, in subsection (1), to leave out paragraph (b) and insert: (b) two persons appointed by the Secretary of State, one as being an independent person and the other as being a person who has had not less than five years' professional experience as a pilot of civil aircraft. The noble Viscount said: This is almost in the nature of a drafting Amendment. Provision was inserted in another place that this proposed board should have upon it two members, one an independent member appointed by the Secretary of State, another a person with practical experience as a civil pilot. Both these, if I may say so, are improvements in the constitution of this body, and this Amendment gives a more convenient effect to what I think is the general intention.

Amendment moved— Page 2, line 42, leave out paragraph (b) and insert the said new paragraph.—(Viscount Swinton.)

On Question, Amendment agreed to.

VISCOUNT SWINTON moved to omit the proviso in subsection (1). The noble Viscount said: This is a consequential Amendment. I beg to move.

Amendment moved— Page 3, leave out lines 12 to 15.—(Viscount Swinton.)

On Question, Amendment agreed to.

On Question, whether Clause 2, as amended, shall be agreed to?

LORD STRABOLGI

May I ask a question on Clause 2? I believe that in the Second Reading debate on this Bill the noble Viscount said something about what this body was going to be called, but it does not appear in the Bill. Can the noble Viscount enlighten the Committee on this?

VISCOUNT SWINTON

I do not think I gave any such intimation; at least I do not remember that I did, and, indeed, I do not think any decision had been arrived at as to what it should be called. I do not think its name matters very much. What does matter is its functions, but I shall have an opportunity of communicating its name to the House because an Order has to be laid when the board is constituted. We can give it its title then.

LORD STRABOLGI

It will have to have a name, of course?

VISCOUNT SWINTON

Yes, it will have a name.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4:

Information as to air transport undertakings and use of customs aerodromes.

(2) An Order in Council under this section may provide for imposing on any person who contravenes or fails to comply with any provision of the Order such penalties (not exceeding a fine of twenty pounds and a further fine of five pounds for every day on which the contravention or non-compliance continues) as may he specified in the Order.

(3) No information with respect to any particular undertaking which has been obtained by virtue of an Order in Council under this section shall, without the consent of the person carrying on that undertaking, be disclosed otherwise than in connection with the execution of this section or of such an Order, and if any person discloses any such information in contravention of this subsection, he shall be liable, on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding fifty pounds or to both such imprisonment and such fine or, on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine not exceeding one hundred pounds or to both such imprisonment and such fine.

VISCOUNT BERTIE OF THAME moved, in subsection (2), to leave out "imposing on" and insert "rendering." The noble Viscount said: I have three Amendments down to this clause and they are in the nature of drafting Amendments. The object of the first two Amendments is to make it clear that all penalties shall be imposed on summary conviction. I beg to move the first Amendment.

Amendment moved— Page 8, line 7, ("imposing on") and insert ("rendering").—(Viscount Bertie of Thame.)

VISCOUNT SWINTON

The third Amendment of the noble Viscount is, I think, correct, if I may say so, and I shall be glad to accept it. The other two Amendments, I understand, are unnecessary, and would be rather irregular, because, under the Act of 1920, the Order provides that these matters should be dealt with on summary conviction. Similarly the Order will provide in the present case that they should be dealt with on summary conviction. I do not think it would be appropriate to put "summary conviction" in the body of the clause. I therefore ask my noble friend if he would withdraw the first two Amendments on my assurance that any Order in future will, like Orders under the Act of 1920, deal with this matter. But the third Amendment, I think, is an improvement and ought to be included.

VISCOUNT BERTIE OF THAME

It is a small matter and I do not propose to press the first two Amendments.

Amendment, by leave, withdrawn.

VISCOUNT BERTIE OF THAME

I beg to move the third Amendment, to insert the words "after conviction therefor" in subsection (2) after "continues."

Amendment moved— Page 8, line 11, after ("continues") insert ("after conviction therefor").—(Viscount Bertie of Thame.)

On Question, Amendment agreed to.

VISCOUNT SWINTON moved, in subsection (3), to leave out "of this section or." The noble Viscount said: I ought to give a word of explanation upon this. This Amendment is rendered necessary by a recent decision of the Courts in a case of Rowell versus Pratt. We were always under the assumption that when a provision was inserted that information collected by Statute was to be treated as confidential, that information would in fact be confidential unless there were proceedings under the clause under which the information was given. But the Courts decided that, if Parliament wished to protect the confidential character of that information and to prevent it being made public in ordinary civil proceedings, Parliament must so provide. I think we are all agreed that we do desire that information of this kind which is given by the firms should be treated as confidential, and I am advised that in view of the decision of the Courts this arrangement is necessary in order to give effect to the intention of Parliament. I beg to move.

Amendment moved— Page 8, line 18, leave out ("of this section or").—(Viscount Swinton.)

On Question, Amendment agreed to.

VISCOUNT SWINTON

I beg to move that the words printed on the Paper be inserted, to add to subsection (3).

Amendment moved—

Page 8, line 26, at end insert: Nothing in this subsection shall apply to the disclosure of any information for the purposes of any legal proceedings which may be taken by virtue of this subsection or of an Order in Council made under this section, or for the purpose of any report of any such proceedings, but, save as aforesaid, the restriction imposed by this subsection shall, in relation to any legal proceedings (including arbitrations), extend so as to prohibit and prevent any person who is in possession of any such information so obtained from disclosing, and from being required by any court or arbitrator to disclose, that information (whether as a witness or otherwise) except with the consent of the person carrying on the undertaking to which the information relates."—(Viscount Swinton.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Licensing of air transport and commercial flying]:

VISCOUNT BERTIE OF THAME

I suppose the noble Viscount will also object to my proposed Amendment, to insert "on summary conviction" after "penalties"?

VISCOUNT SWINTON

Yes.

VISCOUNT BERTIE OF THAME

In that case I will not move.

Clause 5 agreed to.

Clauses 6 to 11 agreed to.

Clause 12:

Power of local authorities to carry on businesses in connection with aerodromes provided by them.

12.—(1) If the Secretary of State is satisfied, with respect to any aerodrome provided by a local authority under Section eight of the principal Act, that it is necessary or expedient that the local authority should be empowered to carry on in connection with the aerodrome any particular business, being a business which appears to him to be ancillary to the carrying on of an aerodrome, but which the authority would not otherwise have power to carry on, he may make an order authorising that local authority, subject to such conditions (if any) as may be specified in the order, to carry on that business in connection with the aerodrome.

LORD MOUNT TEMPLE moved, in subsection (1), after the first paragraph, to insert: Provided that before making any such order the Secretary of State shall take into consideration any objections which may be made by any company or person who is able and willing to carry on such ancillary business at the aerodrome on being granted by the local authority reasonable facilities for access to the aerodrome for that purpose including if need be the right to erect or use for a period of years suitable and convenient buildings and equipment. The noble Lord said: The Amendment on the Paper is, I submit, one of importance. If your Lordships will look at Clause 12 you will see that subsection (1) says that if the Secretary of State is satisfied that it is necessary or expedient that the local authority should be empowered to carry on an ancillary business in connection with the aerodrome which they have provided and which they work, he may by order allow them to operate that ancillary service at the aerodrome. The ancillary business may be a shop for spare parts or, much more likely, it may be an hotel.

In the past strong exception has been taken to municipal trading at the expense of the ratepayers, but in this case perhaps one cannot stress that point as we are dealing with municipal enterprise. I submit, however, that it is grossly unfair to private enterprise that the Secretary of State should not be compelled to take into consideration tenders put forward by private enterprise as well as the proposals put forward by the municipality. All I am asking is fair play for both municipal enterprise and private enterprise. I shall be glad if the noble Viscount when he replies will indicate exactly what subsection (1) means. It is a little ambiguous. It seems to me that under that subsection he is either empowered to allow a municipality to build and erect an hotel, or to build and erect a repair shop, or he is empowered to say that he does not think they are fit to do it. My Amendment says in effect that the Secretary of State shall choose between the several tenderers or the people who want to do the work, whether it is a question of municipal enterprise or private enterprise, and that with him should rest the decision whether the municipality who owns the aerodrome or some private firm should conduct these ancillary services.

May I draw the noble Viscount's special attention to an answer given by the Minister of Health in reply to a question in another place? The Minister said: There are no specific powers in the general law enabling local authorities to erect hotels or to maintain them. Moreover, no local authority has, to our knowledge, specific powers to this end in a local Act. The only case in which such powers have been sought, according to our records, is that of the Bridlington Bill of 1904. The provisions appear to have been withdrawn by the promoters. Accordingly the Government statement was that local authorities so far have not had power given them to run an hotel. Let me summarise what I want. My Amendment may be ill drawn, I do not know, but I submit that in fairness to private enterprise as well as to municipal enterprise the Secretary of State should be empowered to choose from the various people who tender for work on the aerodromes and to choose the best. In present circumstances it seems to me he is only empowered to give municipal enterprise a chance and private enterprise is entirely cut out.

Amendment moved— Page 12, line 25, at end insert the said proviso.—(Lord Mount Temple.)

VISCOUNT SWINTON

I am glad that my noble friend has raised this point, because it gives me an opportunity of making rather plainer than I could in the Second Reading debate what is the purpose of this clause. It is not, as your Lordships might suppose from reading the clause for the first time, a clause which gives some new power to local authorities. It is on the contrary a limiting clause on the powers of local authorities as they exist to-day. I think I did explain in the Second Reading debate that under the old Act a local authority which wished to conduct an ancillary business upon a municipal aerodrome had to go to the Secretary of State for permission to do so, but the clause was drafted in a very curious form, or at any rate it had, as I thought, a very curious effect. Once authority had been given to a municipality anywhere to conduct a particular kind of ancillary business on an aerodrome, that automatically became authority for every municipality in the country which had an aerodrome to conduct a similar business on that aerodrome quite irrespective of whether it was necessary or desirable. There is no question of working hotels, and I do not suppose there is ever likely to be, but I might give this example. Three municipal aerodromes sell oil and petrol at the present time.

LORD MOUNT TEMPLE

And have repair shops?

VISCOUNT SWINTON

No, no municipal aerodrome has a repair shop. All repair shops are conducted by private enterprise by arrangement with the municipalities, a much more practical arrangement. There are three which sell oil and petrol. The first authority which applied got a licence to do so. Automatically some thirty or thirty-five municipalities which own aerodromes secured a similar right. I thought that was wrong and that each one should make application and each case should be decided on its merits. Therefore this clause, so far from giving any new power to local authorities, will in fact limit the powers local authorities have under the present law. If I may say so, I think it would be a mistake to put in this Amendment. I think it would tend to limit the powers and duties of the Secretary of State. Your Lordships will know that it is rather a dangerous thing to put into an Act of Parliament that one thing must be considered. There is the old legal maxim Inclusio unius est exclusio alterius. It is rather dangerous to say that one particular thing must be considered, because it may be held afterwards that it is only that thing or something of the same kind that may be considered. It is the duty of the Secretary of State under the clause as it stands to consider what facilities there are and what are the merits of the case.

LORD MOUNT TEMPLE

Private enterprise as well as municipal enterprise.

VISCOUNT SWINTON

Let me be plain. I am sure my noble friend would not read into this clause a compulsion laid upon the Secretary of State to give a local authority permission to erect an hotel on their premises. That obviously would require very special legislation. But if a local authority said: "We want to erect an hotel upon an aerodrome," and there was a perfectly good hotel available at the door of the aerodrome, I should most certainly feel it my duty to say—and I should consult the Minister of Health on the subject—that there was no reason why the municipality should go and erect an hotel, and that it had not been the habit of Parliament to give municipalities power to erect hotels. I should certainly refuse, such an application unless it was very plain, and the Minister of Health and I both agreed, that in the interests of travellers you had to have an hotel upon the aerodrome and there was no other hotel available. Therefore I hope my noble friend will not press this Amendment, because I want the Secretary of State to have not only the power but the duty to consider all the circumstances of the case. The very clause itself exists because I wish to have the opportunity of considering any municipality's application on its merits and to limit the general right of municipalities as at present. Having said that, I hope that we may leave the clause as it stands, though I am very glad that my noble friend has raised the matter in order that I might make the position plain.

LORD STRABOLGI

The London County Council has communicated with my noble friend the Earl of Listowel on this matter, and he has asked me to put their point of view, which entirely supports that of the noble Viscount. They do not like the clause entirely as it stands. It is not altogether satisfactory, it is a compromise; they have not got all they want. They are, however, very much opposed to the Amendment proposed by the noble Lord, Lord Mount Temple. May I put this consideration to your Lordships also? We want to encourage municipal authorities to go to the great expense of creating aerodromes, and they want to have control over those aerodromes. Is it not far better for a municipality, where it can do so without injury to local interests, to provide the ancillary services and have decent, tidy, ordered arrangements, as they would have? I put it to your Lordships that that is an argument, and I must say that I think the noble Viscount has stated the matter with regard to the hotel difficulty absolutely fairly.

LORD MOUNT TEMPLE

I am afraid I am a very innocent person. When I heard the speech of my noble friend the Minister for Air I thought he made out a case, and a very fair case; but directly Lord Strabolgi gets up and says he agrees with him, I begin to suspect that there may be more in it than meets the eye! However, I would rather, I think, give greater weight to a Government declaration, and especially to one coming from the Front Bench. May I say that I thank the noble Viscount very much for what he has said; he has perfectly explained the situation, and I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Trespassing at licensed aerodromes]:

LORD STRABOLGI moved to add to the clause: And provided that reasonable access by a trade union official or by a reasonable number of trade union officials for purposes connected with trade union duty is not refused. The noble Lord said: This Amendment is one that I ventured to foreshadow in our debate on the Second Reading of this Bill, and I hope that the noble Lord, Lord Mount Temple, will support me by returning good for evil after our recent experience. The wording is in reference to Clause 13, which deals with trespassers. Your Lordships will observe that any person trespassing on a licensed aerodrome shall be liable on summary conviction to a fine not exceeding £5. Then comes a proviso with regard to notices having been previously displayed. I submit to your Lordships, that we should have a second proviso: And provided that reasonable access by a trade union official or by a reasonable number of trade union officials for purposes connected with trade union duty is not refused. This is the old contest that our grandfathers witnessed between the railway companies and the unions, which was fought out to a happy conclusion and to everyone's satisfaction after a great deal of loss and trouble.

We are in certain cases getting, I understand, a revival in modern form of that old trouble. Certain of the aerodrome authorities are objecting to their workmen and their employees belonging to a union. They are treating trade union officials of registered trade unions as trespassers, and it is believed that they may in some cases use the powers given under this Bill to act rather unfairly. These particular words may not be altogether acceptable from the draftsman's point of view, and I am quite prepared to substitute any words that would be accepted by the Secretary of State for Air. This is, however, the intention: it is a saving clause to allow men who are doing a duty which is recognised by the State reasonable access to an aerodrome. I am sure the Secretary of State will be sympathetic to the idea behind the Amendment and, as I say, if the wording presents any difficulty I shall be only too glad to arrange any different wording that might make the Amendment acceptable. I beg to move.

Amendment moved—

Page 13, line 5, at end insert: ("And provided that reasonable access by a trade union official or by a reasonable number of trade union officials for purposes connected with trade union duty is not refused.)."—(Lord Strabolgi.)

VISCOUNT SWINTON

I am afraid I could not possibly ask your Lordships to accept this Amendment. Indeed, it strikes me as being a very extraordinary one. What is the object of this clause? It is to make it an offence to trespass upon a licensed aerodrome. That is done not chiefly in the interests of the aerodrome but, as I explained on the Second Beading, in the interests of the public at large, exactly as you make it an offence for people to trespass on a railway line. I think it is probably a much more dangerous thing to trespass on an aerodrome. The machines are much faster.

LORD ELTISLEY

They are up in the air.

VISCOUNT SWINTON

They can come down, and they do not keep to the rails; you really have to mind your step very much. That is the whole object of putting in this clause, and I think your Lordships will agree that it is a very reasonable provision in the interests of the public. But now the noble Lord says: "Let us put in a proviso to this clause that, if a man happens to be a member of a trade union, he may go upon an aerodrome."

LORD STRABOLGI

Not a member; an official of a trade union.

VISCOUNT SWINTON

An official of a trade union, or a reasonable number of trade union officials, may go there for purposes of their trade. If we were going to deal with this matter at all it would have to be dealt with by general labour legislation. It would obviously be quite out of place to put in a special provision that trade union officials were not to be guilty of trespass if they went on to an aerodrome. No municipality or aerodrome owner in its senses is going to deal with trade union matters in this way so as to cause any difficulty. The proper method of dealing with a thing of this kind is by good will and common sense, and I suggest that it would be quite out of place, in a clause the sole object of which is to make an aerodrome a safe place for the public at large, that we should introduce some special labour provision for members or officials of trade unions. I hope the noble Lord will not press this Amendment.

LORD STRABOLGI

The noble Viscount knows perfectly well that in this matter—there is a very small Opposition in this House—I am entirely in his hands. I do not, however, think it is necessary for him to misrepresent the meaning of the proposed Amendment, even if he does not agree with it. The wording is that they should have reasonable access for trade union duty. The noble Viscount twists that, if I may so express it, by saying: "Oh, that means that if a man is a trade unionist"—first of all, and afterwards if he is a trade union official—"he can wander all over the aerodrome." That is not the intention at all. This clause includes buildings and everything else, and you are going to have difficulty. This is a new industry, and always in new industries this difficulty has to be met; there is always the trouble of the open and closed shop.

VISCOUNT SWINTON

There is no provision, in the ordinary law affecting railway companies, laying down that trade union officials may have access to the property of railway companies on special occasions.

LORD STRABOLGI

And how much trouble and discussion we had with railway companies over this very thing! There was very prolonged trouble, prolonged contests and strikes, in the railway industry over this matter. However, I am inclined to avoid trouble, and I do not propose to press this Amendment if the noble Viscount will not accept it.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14:

Indication of presence of obstructions near aerodromes.

14.—(1) If the Secretary of State is satisfied, with respect to any building, structure or erection in the vicinity of an aerodrome to which this section applies that, in order to avoid danger to aircraft flying in that vicinity in darkness or conditions or poor visibility, provision ought to be made (whether by lighting or otherwise) for giving to such aircraft warning of the presence of that building, structure or erection, he may by order authorise (subject to any conditions specified in the order) the proprietor of the aerodrome, and any person acting under the proprietor's instructions—

1. (a) to execute, instal, maintain, operate and, as occasion requires, to repair and alter such works and apparatus as may he necessary for enabling such warning to be given in the manner specified in the order; and
2. (b) so far as may be necessary for exercising any of the powers conferred by the order to enter upon and pass over (with or without vehicles) any such land as may be specified in the order:

Provided that no such order shall be made in relation to any building, structure or erection if it appears to the Secretary of State that there have been made, and are being carried out, satisfactory arrangements for the giving of such warning as aforesaid of the presence of the building, structure or erection.

(2) Every such order as aforesaid shall provide for requiring the proprietor of the aerodrome to which the order relates to pay to any person having an interest in any land affected by the order such compensation in respect of any damage which that person may suffer as a consequence of the order as may, in default of agreement, be determined by a single arbitrator appointed by the Lord Chief Justice.

(3) The ownership of anything shall not be taken to be affected by reason only that it is placed in, or affixed to, any land in pursuance of such an order as aforesaid; and (subject to the provisions of the next following subsection) so long as any such order in respect of an aerodrome is in force, no person shall, except with the consent of the proprietor of the aerodrome, remove, alter or interfere with any works executed, or thing placed, in, on or over any land in pursuance of the order.

If any person contravenes the preceding provisions of this subsection, he shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding two hundred pounds or to both such imprisonment and such fine; and every person who obstructs a person in the exercise of any of the powers conferred by such an order as aforesaid, shall be liable on summary conviction to a fine not exceeding fifty pounds.

(4) Nothing in the last preceding sub section shall operate, in relation to any building, structure or erection, so as to restrict the making of any repairs or alterations of the building, structure or erection, provided that—

1. (a) notice of the making of the repairs or alterations is given as soon as may be to the proprietor of the aerodrome, and
2. (b) the giving of warning of the presence of the building, structure or erection in the manner provided by any order under this section in force in relation thereto is not interrupted.

(5) Any order under this section may be revoked or varied by a subsequent order made by the Secretary of State, but the revocation or variation of any such order shall not affect the previous operation thereof.

THK EARL OF RADNOR moved, in subsection (1), after "may" ["he may by order"], to insert "after giving notice in writing to the owner (or his agent) and the occupier of any such building structure or erection or the land upon which the same are situate of his intention to make on order under this section and considering any representations made by such persons within such period as may be specified in the notice." The noble Earl said: Before I get down to the details of this Amendment, perhaps I might be allowed to say a word in excuse of the number of Amendments I have put down on this clause. As your Lordships will have noticed, there are a very large number of Amendments. I think I am right when I say that this clause was put into the Bill in another place on the Report stage and that there was never a proper opportunity for its full examination there. It is therefore very necessary that your Lordships should look into it with even greater care than usual.

The first Amendment which stands in my name provides that notice should be given in writing to the owner or his agent when any order is made. I think it speaks for itself. As a matter of fact the noble Viscount in charge of the Bill has an Amendment on much the same line as mine later on, and Lord Eltisley also has an Amendment which covers very much the same ground, but I think I like mine better, because it is considerably shorter. If, however, the noble Viscount in charge of the Bill will assure me that he will incorporate in those two subsequent Amendments words that are necessary, I should not want to press my Amendment further.

Amendment moved— Page 13, line 13, after ("may") insert the said new words.—(The Earl of Radnor.)

VISCOUNT SWINTON

I think I can save time over this. Certainly Lord Radnor need make no excuses for putting his Amendment down. This clause was put in finally on Report in another place, and I think that the fact that I have adopted nearly all of his Amendments shows what a great help he has been. This Amendment is, I think, entirely met by my Amendment on the next page, at line 31—to insert a new subsection after subsection (1). These Amendments cover exactly the same point, and they have been rather carefully considered by the Parliamentary draftsman. I also propose when I come to it to make an arrangement with Lord Eltisley. I think I accept the principle of his Amendment which follows at page 13, line 31. That Amendment would seek really to require two things: firstly, that notice should be given to the landowner; and secondly, that any objection which the landowner makes should be taken note of and if the matter is not settled amicably there should be an appeal to the Secretary of State. I think those are both proper provisions which ought to be inserted. I have had drafted by the Parliamentary draftsman proper provisions to go in to give effect to both of them, but I think it would be more convenient if I did not move a manuscript Amendment. Therefore I undertake to put down on Report an Amendment in proper form giving effect to the provisions which stand in the name of Lord Eltisley. If, however, I am asked whether I will give an undertaking with regard to the proviso relating to liability my answer must be emphatically No. As to Lord Radnor's first Amendment, it would be convenient if his first Amendment were withdrawn and then he could move his proviso at a later stage as an Amendment to my Amendment.

THE EARL OF RADNOR

The proviso is really a separate Amendment, and I propose to move it as such, but in view of what the noble Viscount has said I will withdraw the first Amendment.

Amendment, by leave, withdrawn.

THE EARL OF RADNOR moved, in subsection (1), after paragraph (b), to insert: Provided that neither the owner nor the occupier of any land upon which entry is made shall be under any liability for any injury sustained by any person entering or being upon such land in pursuance of any such order. The noble Earl said: This is an Amendment to which I attach a certain amount of importance. Under this clause of the Bill the employees of an aerodrome are entitled, or will be entitled, to go over anybody's land wherever it may be necessary, or thought to be necessary, to place some form of navigation light or warning for aeroplanes, and in fact such employee becomes a legalised trespasser. The noble Viscount admittedly has later on an Amendment which provides, I think, for statutory undertakings only, that three days' notice he given, except in emergencies, but even so the man is allowed to go on the land and he, in the course of his duty on behalf of the aerodrome, may suffer injury or death.

He or his dependants will then have two alternatives. He or they may proceed against the employers under the Workmen's Compensation Act, or he or they can proceed against the owner of the land—from whichever it is thought the most compensation can be obtained. Under the Workmen's Compensation Act the compensation is limited in amount, but if the man proceeds against the owner of the land he can prosecute for damages at large. Naturally, in his own interests, he would do so, and the landowner can do nothing to prevent him from coming on his land. It affects possibly the ordinary landowner less than most people, but one must remember that emergencies would always occur at night, and a man wandering across country might fall into a pit or get on barbed wire in the darkness. When you come to statutory undertakings, such as the Electricity Board and the railway companies, the danger becomes much more apparent. There will be the high power electric lines and the railway trains, especially now that they are electrified, and it is difficult to see how any of these people can be reasonably expected to take such steps as make it certain that these individuals wandering across their land will not suffer injury or death in any emergency that may arise.

I would like to make it quite clear that by this Amendment I do not propose in any way to reduce the protection that the ordinary working man has now under the Workmen's Compensation Act. He will still have that protection. There are, I think, considerable difficulties of a legal nature in it. I am inclined to think that there will be objections, especially in view of what the noble Viscount said just now, to this Amendment, but I think it is a matter which needs careful consideration. One must remember that the ordinary trespasser has no claim against the landowner if he trespasses. The landowner must not entice him into danger or set traps for him, but if he trespasses without anything happening to him he has no claim against the landowner. But in this case the man will be in the same position as any trespasser and he may suffer injury, and he may, and quite likely will, claim against the landowner as being the individual from whom he could get most money. I understand there was a conference with the Ministry on one side and all the statutory undertakers on the other side, and that certain Amendments were agreed upon provisionally, all of which are incorporated in the Bill with the exception of the one which indemnifies the landowner against claims of this nature. I do not know who it was who objected to it, because I believe that in the original it was drafted by the Air Ministry's advisers, and presumably therefore they approved of it. There must be other Ministries which have stepped in and objected. I should very much like to know who those people are and what the objections are, because I think there is considerable danger not only to statutory undertakers but also to the ordinary landowner.

Amendment moved— Page 13, line 25, at end insert the said proviso.—(The Earl of Radnor.)

LORD MOUNT TEMPLE

I have been asked by the Public Utilities Association most strongly to support the Amendment. It seems to me to be a perfect outrage that one public body, the Air Ministry, should ride roughshod over other public bodies. The great electricity, gas, and water undertakings equally have a locus from Parliament, their activities are laid down, their prices are fixed, and they are just as much entitled to protection from Parliament as this newfangled Ministry. The people we are talking about are licensed trespassers. It is quite right that they should be allowed to go there, because we want to safeguard the property of those who fly and to make aerodromes safe. But I cannot understand the attitude of the Ministry, unless it has been overborne by some other Ministry—possibly the Treasury, which is always the nigger in the wood pile—in refusing to shoulder the liability for their servants when they trespass on somebody else's property.

VISCOUNT SWINTON

They would not be my servants.

LORD MOUNT TEMPLE

Well, whose servants?

VISCOUNT SWINTON

The municipalities'.

LORD MOUNT TEMPLE

I accept the correction. They are the servants of a private company or a municipality. Anyhow they have a right to go on the property of the water company or gas company in order to save the rights of persons who fly. But surely when you have power to trespass on people's land, possibly doing damage to water towers or gasometers, the least you can do is to shoulder the responsibility for the damage done to that land; and to say to the great undertakers, including railway companies and land owners, "You are liable for the damage done to this licensed trespasser," seems to me quite unfair. It may be said that in Common Law a trespasser on somebody else's land can get compensation if he is hurt. If that is so, surely the best way is that the aerodrome authority should pay for wayleaves, so that the undertaking whose property is trespassed on would have an income and could then insure against possible loss.

VISCOUNT BERTIE OF THAME

I should like to support the general principle of this Amendment, but I think it is drafted a little too widely. It might well be accepted by the Government if after the word "sustained," the words were inserted "except such injury as is occasioned by his wilful default or neglect."

VISCOUNT SWINTON

The Air Ministry has no personal or financial interest in this matter at all. In no circumstances can any servant or employee of the Air Ministry be involved in this matter. The people who will be involved are the employees of the municipality or other aerodrome owner. I have been at great pains to get the highest legal advice I can as to what the effect of this proviso would be and how, if at all, it would alter the Common Law. I am advised that this Amendment would make a complete revolution in the Common Law of England and in the liability of statutory undertakers and others, and the strongest possible exception is taken to it by every Government Department which has any statutory duty to perform. It is right that I should say that. At Common Law if a person is entitled as of right to be present on any premises, the owner of the premises is under the same duty to him as if he were an invitee, that is, the owner is bound to use reasonable care to prevent damage to the entrant from unusual danger or to warn him of that danger. That is the law as laid down in a case in which the Great Western Railway were involved. But this Amendment goes even further, and it would relieve the owner or the statutory undertaker of all liability whatsoever. It would therefore actually put the man who goes in under the authority of the Act of Parliament on his lawful occasions in a worse position than an ordinary trespasser going upon the land.

The law I am advised is this. You must not encourage or track trespassers to a place where they are exposed, whether intentionally or not, to some specific danger of which you are cognisant—I do not think anybody is likely to do that—nor may you—and this seems more applicable to the ordinary person—when aware of the presence of trespassers, do any act which endangers their safety. I submit to your Lordships, on that statement of the law, which I am advised is an absolutely fair statement and which I do not think any lawyer in the House would challenge, that the proper course to adopt in this Bill is to leave the Common Law liability where it stands. Under that it would be the duty of the man going upon the land to use all reasonable care for his own safety and to make no unreasonable use of the premises, but where he sustained an injury in circumstances where the Common Law now puts a liability on the owner of the premises, the owner of the premises should not be relieved of that liability—in fact, we should leave the law of the incidence of liability exactly where it stands at present.

THE EARL OF RADNOR

I had no intention, when drafting this Amendment, of altering the Common Law of trespass to the extent which the noble Viscount tells me the proposal would involve. I might point out that there is a difference between the ordinary trespasser and the employee of an aerodrome. The ordinary trespasser, if he injures himself in the course of his trespass, has no source of compensation other than the man on whose land he is trespassing. Therefore he must apply to him. The kind of man with whom we are dealing now has got workmen's compensation to fall back upon. He is not going to suffer. My point is that the landowner—all landowners—may be compelled to have this man on their land and to carry a liability whether they wish it or not. I am not going to suppose they are going to be unreasonable about it, but I can see the noble Viscount's difficulty. I am very grateful to my noble friend Lord Bertie for the suggestion he has made, and I think possibly one might find words to insert into this Amendment which might, if I may so put it, safeguard the Common Law position. In the circumstances I should prefer to withdraw this Amendment with a view to trying to find some way out and of putting it down again on Report. I shall have to raise the question again in a more particular way when it comes to another Amendment I have on the Paper so far as railways are concerned, and by leave of the Committee I shall withdraw the Amendment.

LORD MOUNT TEMPLE

As my noble friend Lord Radnor is going to put down the Amendment again on Report, would the noble Viscount allow two or three representatives from the big electricity, gas, and water companies to call at the Ministry and see one of his officials? They have some suggestion which they can make on this matter.

VISCOUNT SWINTON

I think I have done enough to show that I am trying to meet the public authorities in as reasonable a way as I can. I must say to your Lordships that this does raise an enormous question of principle. I am advised from all Departments and on the highest legal authority that if we give way in a public Act here and alter the Common Law liability, and your Lordships give the imprimatur of Parliament to that, you are in fact deciding a great question of principle. If we make this change here in the Common Law liability, then every single public utility undertaker in the country will have the right to come and review all the Acts of Parliament under which sanitary inspectors or anybody else has a statutory right, and to ask that the legal liability may be reviewed. I would take a single example. Take the case of a railway siding going through a steel works or a colliery. Everybody knows where the incidence of liability occurs there. If you were to change there the incidence of liability, you would raise the whole question of whether the railway company is not to be completely free of all liability, however negligent or careless it might be in respect of a siding of that kind. I am not being at all unreasonable about this. It does raise such an enormous question of principle that I am afraid I cannot give any undertaking, but I am perfectly prepared to discuss the matter again with all the Departments concerned.

THE EARL OF RADNOR

The noble Viscount quoted the case of a railway siding at a colliery. A railway siding at a colliery is there to make money and convey coal. So far as this aerodrome man is concerned, he is sent over somebody else's land in order to make money for his aerodrome. The landowner permits him to go, and he is willing in the interests of public safety that he should go, but he does not want him there in the least and he does not want to be put to any trouble or expense. But I shall try to find suitable words which may safeguard the Common Law position while at the same time safeguarding the landowners as they stand now.

Amendment, by leave, withdrawn.

VISCOUNT SWINTON moved to insert after subsection (1): (2) The Secretary of State shall, before making any such order as aforesaid, cause to be published, in such manner as he thinks best for informing persons concerned, notice of the proposal to make the order and of the place where copies of the draft order may be obtained free of charge, and take into consideration any representations with respect to the order which may, within such period not being less than one month after the publication of the notice as may be specified therein, be made to him by any person appearing to him to have an interest in any land which would be affected by the order; and at the end of that period the order may, subject to the provisions of this section, be made with such modifications (if any) of the original draft as the Secretary of State thinks proper. The noble Viscount said: I have explained the object of this Amendment. It is to give full notice, first of all, by publishing a draft order so that everybody may have an opportunity of knowing what is in the draft order, and I think it fair to couple with that the undertaking which I have given that I shall, on Report, put down an Amendment which will safeguard the points raised by my noble friend Lord Eltisley—namely, that there shall be notice of intention of carrying out the specific work by the authorised undertaker and an opportunity to make an objection to that work and for an appeal to the Secretary of State. I beg to move.

Amendment moved— Page 13, line 31, at end insert the said subsection.—(Viscount Swinton.)

LORD ELTISLEY

I am most grateful to the noble Viscount for the way in which he has met the substance of the two Amendments in my name which immediately follow this Amendment on the Marshalled List. My Amendments cover very much the same field and they are put down at the instance of the County Councils' Association, which has conferred with the Municipal Corporations' Association. Both those important bodies are desirous that the points of these Amendments should be met. I would venture to plead for an extension of the time suggested—namely, of one month as contained in the noble Viscount's Amendment. I should like to see it increased to two months at any rate. It might well be that the local authority is on the eve of a vacation, and it may not be possible to get the personnel together to consider the particular matter in the narrow time limit of one month. May I say once more how grateful I am to the noble Viscount for his promise to deal with these two points?

VISCOUNT SWINTON

I shall be very glad to agree to two months being substituted for one month, and I beg to move the Amendment in that form.

Amendment to proposed Amendment moved— Line 8, leave out ("one month") and insert ("two months").—(Viscount Swinton.)

On Question, Amendment to proposed Amendment agreed to.

Amendment, as amended, agreed to.

THE EARL OF RADNOR moved, in subsection (2), after the second "order," to insert "such consideration in money in respect of the rights over such land conferred by the order and". The noble Earl said: This is, in fact, wayleaves. By this Bill the aerodrome proprietors, as we all realise, are going to have the right to go over other people's land, presumably also, if necessary, to lay electric cables and put lights, etc., on people's land. While there is very wide provision for compensation in case of loss or damage, there is no acknowledgment of the landowner's right of ownership. If you take any other undertakings, statutory or otherwise, you will always find wayleave agreements with, as a rule, an acknowledgment, and sometimes a rent in compensation for either the inconveniences or for the loss of privacy or for the depreciation of the value of the land owing to the right of the undertaker to go over it. There is no such provision in this Bill, yet these people will have the right to lay these lines, to go over the land, and, in fact, treat the land as though it was their own without any acknowledgment to the owner of the land. I feel that something ought to be put into the Bill in order to establish the right of the owner to his land. I therefore beg to move.

Amendment moved— Page 13, line 35, after ("order") insert ("such consideration in money in respect of the rights over such land conferred by the order and").—(The Earl of Radnor.)

VISCOUNT SWINTON

I think the noble Earl who has moved the Amendment does not desire to make a profit out of this, as I understand him. I think that your Lordships will agree that the Amendments which I have put down, following some that the noble Earl himself has down, will ensure that any landowner will be completely indemnified against any possible loss or damage arising at any time when the light, or whatever it is, is put in, and at any time during its existence. I think it is common ground between us, therefore, that what he would wish to argue on behalf of the landowners would be a complete indemnification against any loss or damage, but he would not want the landowners to make money out of the putting in of what is a necessary provision for safety. If I may say so, that seems to me a very fair and proper line to take up, and one more characteristic of landlords than is sometimes said about them outside.

But the noble Earl really proposes this in order that the landowner may get some control over it, and in order that the landowner may get an acknowledgment of his rights of property. I would think, with respect, that that was completely assured to him by the considerable formalities which have to be gone through before any action can be taken. What has to happen? First of all an application has to be made to the Secretary of State. Then he has to consider the matter and make a draft order. Then the landowner has to be served with notice of what is required to be done. If the landowner objects to anything that is proposed an appeal lies to the Secretary of State. There is provision for independent assessment of compensation for any damage. I would suggest that really with all these formalities at each stage of the proceedings the right of the landowner in his property is in fact emphasised, but, as it is common ground between us that he does not wish to make a profit but merely wants to emphasise the legal position of the landowner, I suggest on consideration that that is adequately done by the process to which I have alluded.

THE EARL OF RADNOR

In view of that full reply I do not think there is any point in my Amendment. I beg to withdraw.

Amendment, by leave, withdrawn.

VISCOUNT SWINTON

The next Amendment in my name is drafting. I beg to move.

Amendment moved— Page 13, line 36, after ("any") insert ("loss or").—(Viscount Swinton.)

On Question, Amendment agreed to.

THE EARL OF BADNOR had an Amendment to subsection (2) on the Paper—after "suffer," insert "or of any expenses which he may reasonably incur." The noble Earl said: I think this is covered by the noble Viscount's Amendment to line 39, to add certain words to subsection (2). Therefore I do not move it.

VISCOUNT SWINTON moved, in subsection (2), after "determine," to insert "from time to time." The noble Viscount said: If your Lordships have read the words of this and the following Amendment which appear on the Paper, you will see that they do state very fully all possible lines of damage which the owners can suffer either at the beginning, or in the course of the maintenance of the safety appliances, or when they are finally taken away. I think they cover completely all actionable or contingent damage and they have been devised for that purpose.

Amendment moved— Page 13, line 38, after ("determined") insert ("from time to time").—(Viscount Swinton.)

On Question, Amendment agreed to.

VISCOUNT SWINTON moved to add to subsection (2): and for the purposes of this subsection, any expense reasonably incurred in connection with the lawful removal of any apparatus installed in pursuance of such an order, and so much of any expense incurred in connection with the repair, alteration, demolition or removal of any building, structure or erection to which such an order relates as is attributable to the operation of the order, shall be deemed to be loss or damage suffered as a consequence of the order. The noble Viscount said: I have already explained this Amendment in moving the preceding one. I beg to move.

Amendment moved— Page 13, line 39, at end insert the said words.—(Viscount Swinton.)

On Question, Amendment agreed to.

VISCOUNT SWINTON moved, in subsection (3), to leave out "remove, alter or interfere with any works executed, or thing," and insert "wilfully interfere with any works or things which, to the knowledge of that person, are works or things executed or." The noble Viscount said: I move this in order to make sure that a person who is interfering without knowledge shall not be liable. It is to meet the same point as that about which the noble Earl, Lord Radnor, had an Amendment with regard to "knowingly." We shall get the words "wilfully interfere with" and "to the knowledge of that person," inserted. I beg to move.

Amendment moved— Page 14, line 4, leave out from the beginning of the line to ("placed") in line 5 and insert the said new words.—(Viscount Swinton.)

THE EARL OF RADNOR

I am very grateful to the noble Viscount for moving this Amendment and the Amendment which comes later and is supplementary to the Marshalled list of Amendments.

On Question, Amendment agreed to.

VISCOUNT SWINTON moved, in subsection (3), before "obstruct," to insert "wilfully." The noble Viscount said: This Amendment has already been explained. I beg to move.

Amendment moved— Page 14, line 12, after ("who") insert ("wilfully").—(Viscount Swinton.)

On Question, Amendment agreed to.

THE EARL OF RADNOR moved, in subsection (4), to leave out "the last preceding subsection" and insert "this section." The noble Earl said: I beg to move.

Amendment moved— Page 14, line 16, leave out ("the last preceding subsection") and insert ("this section").—(The Earl of Radnor.)

VISCOUNT SWINTON

I accept this.

On Question, Amendment agreed to.

VISCOUNT SWINTON

I move my Amendment to subsection (4) in order to make the matter clear.

Amendment moved— Page 14, line 18, leave out ("making of any repairs or alterations of") and insert ("doing of any work for the purpose of repairing, altering, demolishing or removing.")—(Viscount Swinton.)

THE LORD CHAIRMAN

I will put the question that "making of any repairs" stand part in order to safeguard the Amendment which follows of the noble Earl, Lord Radnor, to insert "extensions" after "repairs."

VISCOUNT SWINTON

I understand that this word is unnecessary because the point is covered by the words I have just moved "any work for the purpose of repairing, altering, demolishing or removing." Alteration would necessarily include extension.

THE EARL OF RADNOR

I think that is probably so and therefore I will not move my Amendment.

On Question, Amendment agreed to.

THE EARL OF RADNOR moved in subsection (4), before "provided that", to insert "or any alteration in the use to which it is put." The noble Earl said: This I think is rather different. It is only a small point. I take it that the object of the subsection is to ensure that there should be no interference with the user of the land, but there is no provision made for alteration in the use to which it is put.

Amendment moved— Page 14, line 19, after ("erection") insert ("or any alteration in the use to which it is put").—(The Earl of Radnor.)

VISCOUNT SWINTON

This point is intended to be covered, and I understand is in fact covered, by the words put in about the alteration of the premises. However, I will ask the draftsman to consider it and if there is any doubt as to whether the noble Earl's point is covered I will undertake to move an Amendment on Report. We do not want to put in words that are superfluous.

THE EARL OF RADNOR

In that case I beg leave to withdraw.

Amendment, by leave, withdrawn.

VISCOUNT SWINTON

I beg to move the next Amendment.

Amendment moved— Page 14, line 20, leave out ("making of the repairs or alterations") and insert ("doing of that work").—(Viscount Swinton.)

On Question, Amendment agreed to.

THE EARL OF RADNOR moved, in subsection (5), after "State", to insert "in accordance with the provisions of this section". The noble Earl said: I beg to move.

Amendment moved— Page 14, line 29, after ("State") insert ("in accordance with the provisions of this section").—(The Earl of Radnor.)

VISCOUNT SWINTON

I accept this Amendment.

On Question, Amendment agreed to.

VISCOUNT SWINTON moved, after subsection (5), to insert: ( ) The following provisions shall have effect for the protection of statutory undertakers:—

1. (a) any order made under this section affecting any property held by such undertakers for the purposes of their undertaking shall he so framed as to avoid interference with the proper carrying on of the undertaking;
2. (b) no person shall, except in a case of emergency, enter, in pursuance of such an order, upon any land held by such undertakers for the purposes of their undertaking, unless he has given to the undertakers at least three clear days' notice of his intention so to do, and any person so entering on any such land shall comply with any reasonable directions given to him by or on behalf of the undertakers for preventing interference with the proper carrying on of the undertaking."

The noble Viscount said: This is an Amendment of substances. It includes two provisions which I would ask your Lordships to insert in the interests of statutory undertakings. The first is that any order affecting property held by such undertakers shall be so framed as to avoid interference with the proper carrying on of the undertaking, and the second is that no person except in case of emergency shall enter in pursuance of such an order upon the undertaker's land, even when he has a right to do so, without giving three clear days' notice. I beg to move.

Amendment moved— Page 14, line 30, at end insert the said new subsection.—(Viscount Swinton.)

THE EARL OF RADNOR had given Notice of the following Amendment to the proposed Amendment: After paragraph (b) to insert: (c) railway undertakers shall not be liable for any injury sustained by any person while, in pursuance of any such order, he is on any lines of rails belonging to the undertakers or on any land immediately adjoining any such lines of rails.

The noble Earl said: This Amendment to the Amendment moved by the noble Viscount is intended to protect railway undertakers from the financial consequences of a person being injured on their line. Railway undertakers are in a rather different position from ordinary landowners or from other statutory undertakers. In ordinary law, I understand, there is no right to prosecute for trespass and you cannot get a conviction unless you can prove damage; you can only get an injunction. Railway companies have been marked out for special treatment in this matter by reason of the dangers connected with their undertaking. They can prosecute for trespass without proving damage and get a conviction, and that provision, I notice, is incorporated in this Bill so far as aerodromes are concerned.

As your Lordships will realise, railway companies are in a peculiar position. It is very difficult for them to take any steps without interfering with their trains running to ensure the safety of these men if they get across the railway lines. It is very difficult for them to prevent these men from doing that and in fact they cannot do so without interfering with the running of trains which they are under statutory obligation to run for the public convenience. Therefore I think they have a special case which entitles them to ask to be relieved of liability. It is all very well for the noble Viscount to say that aeroplanes go very fast, but when landing on an aerodrome, the majority at least do not go faster than railway trains. A train may travel at seventy or eighty miles an hour and most aeroplanes land at forty to sixty miles an hour. It is a very dangerous thing for the uninstructed to cross a railway line, and there have been quite a number of trespassers on railway lines who have been killed. Railway companies are not liable to pay compensation in such cases. Whenever a railway company grants a wayleave or grants permission for men to go across their lines in the course of their duty there is an indemnity embodied in the agreement and railway companies do not have to pay compensation in the event of a man being killed or injured. Although the noble Viscount did not like my Amendment covering all landowners, I hope he will look on this as a special case in view of the peculiar situation of the railway companies and accept this Amendment.

Amendment to the proposed Amendment moved— After paragraph (b) insert the said new paragraph.—(The Earl of Radnor.)

VISCOUNT FALMOUTH

Before the noble Viscount replies I should like to ask whether he has considered the position of other statutory undertakers, such as electricity and gas companies, because they are very much affected by this clause. If there was any interference with overhead wires or gas holders which led to accidents, they would be affected in the same way as if an accident happened on railway property. I hope the noble Viscount has taken that into consideration.

VISCOUNT SWINTON

I am afraid I do not like this any better than the other Amendment, in spite of the very able advocacy of my noble friend. I notice that he draws a distinction between himself as a railway director and himself as a landowner, and asks that better treatment should be given to the railway company. I really have replied already to this Amendment. The case put forward is that railway companies are in a very special position. Railway law, as I understand it, was laid down in a case to which the Great Western Railway, my noble friend's own line, was a party. I quite agree that if a concession could be made, there is no reason for giving it to railway companies and not to all statutory undertakings, but for the reasons I gave when dealing with the noble Earl's earlier Amendment I must resist this. If I accepted it, then in fairness I should have to include all statutory undertakers. We should be completely reversing the Common Law, as laid down, of the mutual obligation as between statutory undertakers and the general public. If I may say so, the railways are not in a special position. It is quite true that there is a notice saying that you must not trespass upon the railway and that if you do you are liable to be fined forty shillings, and it is quite true that the same provision is inserted here in regard to the aerodrome owners, but both those provisions are in the interests of the general public. Just as I am not asking for any special privileges for the aerodrome owner on his aerodrome, or any special exemption from liability for a municipality which owns an aerodrome—I do not think it ought to have it—so I am bound, for the reasons which I gave before, to ask your Lordships not to press this Amendment.

THE EARL OF RADNOR

Of course, I am not asking in this for any exemption for the railway company so far as the ordinary trespasser is concerned. I made that point before. The ordinary trespasser has to take his chance, and the railway company can deal with him, and does, as occasion necessitates. But here is somebody over whom they have no control, or very little control, who may be compelled to go on their lines, and against whose possible injury there are really no steps which they can take short of stopping their trains, which, as the noble Viscount can imagine, is in fact quite impossible, especially on a busy line.

VISCOUNT SWINTON

But you are not asked to do that. I am quite sure that that is not the law. The law is that everybody has to behave reasonably, and it would be utterly unreasonable for the aerodrome owner to expect any train on the line to be stopped because a man was going to do a job of work. That is not the law as laid down by the Courts.

THE EARL OP RADNOR

Take, for example, an electrified line in the suburban area. It would be necessary, when this man goes there, first of all to have a man waiting to see that he did not tread on the third rail and be electrocuted, and probably also to have another man on one side at a little distance away with the necessary red and green flags, to ensure that he crossed the line at the right moment. He is going to pay for that expense. I think there is a case for the railway undertakers. I think there is a case for all the statutory undertakers which should be conceded by the Government, and I think that I must test the feeling of your Lordships by going to a Division.

On Question, Whether the said words shall be inserted in the proposed new subsection?

Their Lordships divided:—Contents, 21; Not-Contents, 45.

CONTENTS.
Wellington, D.	Falmouth, V.	Lawrence, L.
	Sidmouth, V.	Marley, L.
Grey, E.	Ullswater, V.	Oriel, L. (V. Massereene.)
Midleton, E.		Palmer, L.
Mount Edgcumbe, E.	Berwick, L.	Phillimore, L.
Radnor, E. [Teller.]	Cranworth, L.	Redesdale, L.
	Harris, L.	Shute, L. (V. Barrington.)
Bertie of Thame, V. [Teller.]	Hastings, L.	Strabolgi, L.

NOT-CONTENTS.
Halifax, V. (L. Privy Seal.)	Plymouth, E.	Gage, L. (V. Gage.) [Teller.]
	Rothes, E.	Gorell, L.
Northumberland, D.	Sandwich, E.	Hampton, L.
	Stanhope, E.	Heneage, L.
Dufferin and Ava, M.	Stradbroke, E.	Hutchison of Montrose, L.
Zetland, M.		Jessel, L.
	Brentford, V.	Rankeillour, L.
Airlie, E.	Swinton, V.	Remnant, L.
Amherst, E.	Trenchard, V.	Rennell, L.
Bathurst, E.		St. Levan, L.
Bradford, E.	Addington, L.	Sandhurst, L.
De La Warr, E.	Annaly, L.	Strathcona and Mount Royal, L.
Iddesleigh, E.	Biddulph, L.
Iveagh, E.	Bingley, L.	Templemere, L.
Lucan, E. [Teller.]	Cromwell, L.	Wakehurst, L.
Munster, E.	Daryngton, L.	Waleran, L.
Onslow, E.	Doverdale, L.	Woodbridge, L.

Resolved in the negative and Amendment to the proposed Amendment disagreed to accordingly.

On Question, original Amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15:

Limitation of liability for certain damage caused by aircraft.

15.—(1) Subject to the provisions of this Part of this Act, where a person or his estate is liable to pay damages by reason of loss or damage which, after the commencement of this Part of this Act, is caused on any one occasion to persons or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then, if the loss or damage was caused without his actual fault or privity, his or, as the case may be, his estate's total liability to pay damages by reason of the loss or damage shall be limited in accordance with the provisions of the Second Schedule to this Act.

Any reference in this Act to the total limit of liability appropriate to an aircraft shall be construed as a reference to the total amount to which a person could, in the circumstances mentioned in this subsection, limit his liability to pay damages in respect of loss or damage caused on any one occasion by that aircraft, whether to persons or to property; and any reference in this Act to the limit of liability for property claims appropriate to an aircraft shall be construed as a reference to the amount to which a person could, in such circumstances, limit his liability to pay damages in respect of loss or damage caused on any one occasion by that aircraft, if that loss or damage were only loss of, or damage to, property.

LORD GORELL moved, in subsection (1), to leave out "then, if the loss or damage was caused without his actual fault or privity." The noble Lord said: The Amendments which stand in my name to this clause all stand or fall together. They are of very great importance; in fact, in my submission, they are vital to one of the main principles of the Bill; but I venture to hope that they are not controversial. The noble Viscount, in moving the Second Reading of the Bill, when he came to this Part III used these words. He said: There is, your Lordships will observe, no limit upon the liability if the loss or damage is due to wilful misconduct on the part of the owner or pilot That would seem to me to be a perfectly correct description of the intention of the Government in this Part of the Bill, and certainly of the intention of the Committee upon whose recommendations this Bill is founded, but it is not an actual description of what is to be found in the Bill. There are no such words in this clause as "wilful misconduct," and the Amendments which stand in my name are designed to give effect to the intention of the Government, rather than the actual effect that would be ensuing upon all owners and pilots of civil aircraft if the Bill were left in its present wording.

Part III is headed, as your Lordships will see, "Limitation of, and provision to be made for securing discharge of, liability in respect of certain damage caused by aircraft," but the actual words in the clause which I seek to amend relate only to "actual fault or privity," and not to any question of "wilful misconduct." The words as printed in the Bill have caused a great deal of misgiving and anxiety among owners and pilots of aircraft, because it is felt that if they remain without amendment there will be, in effect, no limitation of liability, and the Second Schedule of the Bill will be negatived. It is impossible to imagine an accident taking place to an aircraft flown by an owner-pilot and something happening which would not be taken to be his privity, and therefore, with the words in the Bill, it is felt that all the advantage of limitation of liability will be lost. Similarly, with regard to aircraft lines, if any fault can be proved on the part of the pilot, then, even if it be a comparatively trivial fault, the benefit of limitation of liability will be lost. The noble Viscount pointed out that it was a necessary corollary of the principle intended to be embodied in this Part of the Bill that if there was to be compulsory insurance there must be this limit of liability. I have endeavoured, in my various Amendments to Clause 15, to give effect to what I believe to be the intention of the Government. If I have correctly interpreted what I believe to be their intention, I hope the noble Viscount will be able to accept them, and thus relieve the very-great anxiety which is felt in this respect on the part of owners and pilots of aircraft.

Amendment moved— Page 15, line 11, leave out from ("landing") to the end of line 12.—(Lord Gorell.)

VISCOUNT SWINTON

This is an important Amendment, and I have taken the highest legal advice which is open to me upon it. It is very important that we should express with precision in the Bill exactly what the liability is, and on whom rests the onus of proof. I think my noble friend has done real service in bringing attention to this point, where probably through a succession of Amendments and counter-Amendments being moved in another place, we had, I think, got quite definitely wrong. I can sum up the noble Lord's Amendments in a single sentence, by saying this. If we carry the Amendments, we shall put the onus of proving wilful misconduct on the third party, and the onus of disproving; wilful misconduct will rest with the aircraft owner. I think that is consistent with the proper principles of English law, and I am much obliged to my noble friend for moving his Amendments, which I accept.

On Question, Amendment agreed to.

LORD GORELL

My next three Amendments are consequential, and I would only like to say that I am very much obliged to the noble Viscount.

Amendments moved—

Page 15, line 16, at end insert: ("Provided that a person or, as the case may he, his estate shall not be entitled to the benefit of this section in relation to any such loss or damage as aforesaid in any case in which it is proved that the loss or damage is attributable to his wilful misconduct or to wilful misconduct on the part of any of his servants or agents, unless (in a case where the loss or damage is attributable to wilful misconduct on the part of any of his servants or agents) it is proved that the loss or damage occurred without his actual fault or privity.") Page 15, line 17, at the beginning insert ("(2)") Page 15, line 20, leave out ("this") and insert ("the preceding").—(Lord Gorell.)

On Question, Amendments agreed to.

Clause 15, as amended, agreed to.

Clause 16:

Provision to be made in respect of aircraft against third party risks.

(3) The preceding provisions of this section shall not apply to an aircraft of which, at the material time, the owner is a local authority, a police authority or the Receiver for the Metropolitan Police District, or which, at that time, is being used for police purposes by, or under the direction of, a police officer or by a person employed by a police authority or employed by the said Receiver, and shall not apply to any aircraft if and so long as the owner thereof has deposited, and keeps deposited, with the Accountant-General of the Supreme Court of Judicature in England, for and on behalf of that court, an amount at least equal to the total limit of liability appropriate to that aircraft or, where he is the owner of three or more aircraft, an amount at least equal to the aggregate of the two greatest of the total limits of liability appropriate to those aircraft respectively.

VISCOUNT BERTIE OF THAMEmoved, in subsection (3), to leave out "shall not apply to aircraft of which, at the material time, the owner is a local authority, a police authority or the Receiver for the Metropolitan Police District, or which, at that time, is being used for police purposes by, or under the direction of, a police officer or by a person employed by a police authority or employed by the said Receiver, and." The noble Viscount said: If your Lordships will look at subsection (3) of this clause you will see these words: The preceding provisions of this section shall not apply to an aircraft of which, at the material time, the owner is a local, authority, a police authority or the Receiver for the Metropolitan Police District, or which, at that time, is being used for police purposes by, or under the direction of, a police officer or by a person employed by a police authority or employed by the said Receiver. That seems to me rather an objectionable exclusion from third-party risks, and more especially so because I suspect that my noble friend will say that there is an analogous clause in the Road Traffic Act, and that makes it all the worse, because I am told that recently in the provinces a policeman who was employed by a local authority ran over and either killed or injured a pedestrian. Either the pedestrian, if he lived, or his dependents, brought an action against the local authority, and that action was dismissed on the ground that the local authority was not liable, but the policeman was, personally. It is a poor consolation to a person who has been injured to bring an action against a policeman who has not got the money to pay if the case goes against him.

Amendment moved— Page 17, line 39, leave out from ("section") to ("shall") in line 3, page 18.—(Viscount Bertie of Thame.)

VISCOUNT SWINTON

I would rather like to look into this. The object of inserting the provision which my noble friend wishes to amend was the regular practice by which the Government was not insured. The object of making people insure against third-party risk is in order to have a solvent person to go against. It was considered that the Government, or the Commissioner of Police, is sufficiently solvent not to force them to insure. My noble friend has raised a rather difficult point, whether, unless we insert these words, an action would not lie against the Commissioner of Police or local authority. I do not think he is right, because the owner of the aircraft is the person who is made liable under the Act of 1920 for the damage, and therefore if you are damaged by an aircraft owned by the county council or the Commissioner of Police, you will have a right of action, and your right of action must be against the owner of the aircraft, who is the public authority. But I have not had a chance of considering the bearing of the particular case that has been cited upon this clause, and if the Amendment is withdrawn now I will see that the appropriate legal authorities go into the matter before Report and if there is any doubt about it I will see that the appropriate words are introduced.

LORD STRABOLGI

I must say I was attracted by the Amendment of the noble Viscount, Lord Bertie, and particularly by the case which he cited where a police car ran over a man and there was no action except against the policeman driver. But have we not to be a little careful about this? I think I am right in saying that under this clause and the preceding clauses there is a limit of liability in these compulsory third-party insurances. The fact that the local authorities and the police authorities are excluded from the provisions of this clause means also that, if they do damage property or life, in the same way there is no limit to the amount of damage at which they may be assessed by a Court. I do not know whether there is anything in that point, but it is well worth looking into. If we accepted Lord Bertie of Thame's Amendment we might to a certain extent be limiting the right of the subject to recover damages against a Government Department or a local authority.

VISCOUNT SWINTON

I think the position is this. The local authority is liable, but the local authority has its liability limited, like anybody else. And the only question which arises here is whether it should be compelled to take out an insurance policy.

LORD STRABOLGI

Does that mean that the local authority is limited under the Second Schedule to a certain amount?

VISCOUNT SWINTON

I think so.

VISCOUNT BERTIE OF THAME

I am obliged for my noble friend's undertaking, and I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clauses 17 to 33 agreed to.

Clause 34 [Interpretation]:

VISCOUNT SWINTON moved to insert in subsection (1): 'statutory undertakers' means any persons authorised by any enactment or statutory order to construct, work or carry on any railway, canal, inland navigation, dock, harbour, tramway, gas, electricity, water or other public undertaking; The noble Viscount said: This is a consequential Amendment. Having introduced special provisions to safeguard statutory undertakers, we must define what they are.

Amendment moved— Page 30, line 39, at end insert the said words.—(Viscount Swinton.)

On Question, Amendment agreed to.

VISCOUNT BERTIE OF THAME

I beg to move the Amendment standing in my name.

VISCOUNT SWINTON

I accept this.

Amendment moved— Page 31, line 18, after ("goods") insert ("or articles").—(Viscount Bertie of Thame.)

On Question, Amendment agreed to.

Clause 34, as amended, agreed to.

Remaining clause agreed to.

First Schedule:

1. FIRST SCHEDULE.
cc72-4
1. PART I. 467 words
2. FOURTH SCHEDULE.
cc74-5
1. PART I. 347 words
cc75-86
3. TITHE BILL. 4,213 words
c86
4. SECOND SCHEDULE. 170 words
cc86-93
2. FOURTH SCHEDULE. 2,978 words, 1 division