§ Order of the day for the Third Reading read.
§ 7.15 p.m.
§ Moved, That the Bill be now read 3a.—(Lord Merthyr.)
§ THE MARQUESS OF ZETLAND
My Lords, I have it in command from His Majesty to signify to the House that His Majesty, having been informed of the purport of the Coast Protection Bill, gives his consent, as far as His Majesty's interest is concerned on behalf of the Crown, the Duchy of Lancaster and the Duchy of Cornwall, that the House may do therein as they shall think fit.
§ On Question, Bill read 3a.
§ Clause 1:
§ Power of Board of Trade to restrict excavation, etc., of materials on or under the seashore.
§ (5) An order made under this section shall be binding on all persons, including the owners of and persons interested in any part of the seashore comprised in the order, and any drainage authority or harbour, local or other authority having jurisdiction over the area comprised in the order or any part thereof, and all highway authorities, and shall have effect notwithstanding the provisions of any public, general or Local or Private Act, or any alleged custom or prescriptive right to the contrary:
§ Provided that, if it appears to the Board of Trade that such an order will operate to prevent or impede the performance by any person of any duty imposed upon him, the order may for the purpose of relieving the 1001 person from the duty or from any penalty, liability or disability attaching to the nonperformance thereof, repeal or modify the provisions of any Local Act to such extent and in such manner as the Board think proper.
§ VISCOUNT BERTIE OF THAME moved, in the proviso in subsection (5), to substitute "shall" for "may." The noble Viscount said: My Lords, I have two apologies to make. The first is for intervening in so many debates this afternoon; the second is for bringing these Amendments before your Lordships' House at so late a stage in the Bill. I did mention the point to my noble friend before the Second Reading; then came a spate of heavy Government legislation which required careful examination; I forgot it at the Committee stage and I was unable to be present on Report.
If your Lordships will look at page 2 of the Bill, line 32, you will see:
Provided that, if it appears to the Board of Trade that such an order will operate to prevent or impede the performance by any person of any duty imposed upon him, the order may for the purpose of relieving the person from the duty or from any penalty, liability or disability attaching to the nonperformance thereof, repeal or modify the provisions of any Local Act to such extent and in such manner as the Board think proper.
There is therefore a presumption that the facts are known to the Board. I should like to point out that the order has not come into force at that time. If, owing possibly to inadvertence by the Board of Trade, the Local Act in question is not amended by them, then the unfortunate person who is under a liability of some sort may be proceeded against and will have no defence. Damages may be awarded against him, and in any case he will have the worry, trouble and expense of defending the action. No option should be given to the Board of Trade in those circumstances. The words ought to read:
Provided that, if it appears to the Board of Trade that such an order will operate to prevent or impede the performance by any person of any duty imposed upon him, the order shall"—
I think that the word "may" should be omitted and the word "shall" inserted. I beg to move.
Page 2, line 35, leave out ("may") and insert ("shall").—(Viscount Bertie of Thame.)
My Lords, I am afraid I am unable to accept this Amendment, and I hope to satisfy your Lordships as to the reason. In the first place I do not think it can be accepted, as the noble Viscount suggested or presumed, that the whole of the facts are known to the Board of Trade. It is true that the words read "if it appears to the Board of Trade that such an order will operate," and so forth; but the knowledge that that may happen may not come to the Board of Trade until a later stage in the proceedings.
The procedure which is contemplated is that when that knowledge does come to the Board the Board may then review the situation, and possibly not proceed with the order at all. Therefore in my opinion it is not necessary that this Amendment should be passed. Not only is it not necessary, but it may be detrimental to the interests which we have in mind. I would also draw attention to the last words of the proviso "to such extent and in such manner as the Board think proper." If this Amendment is passed you have this situation, that you are compelling the Board of Trade to do an act and adding that they must do it to such an extent and in such manner as they think proper. That sets up a very curious situation, because if the Board do not want to do a thing which they are compelled by this Bill to do they could obviously escape from their obligation by putting in operation those words, and defend themselves, and hide behind those words to any extent they wanted to. Therefore so long as these words are in the Bill this Amendment, it seems to me, does not do that which it is expected to do by the noble Viscount.
There is another objection to this Amendment, and it is a legal one. If the Amendment is passed then the power conferred on the Board of Trade by the Bill as it stands is not anywhere stated in the Bill, and it would only therefore be inferred, if this Amendment were passed, that the Board had that power. That is a very undesirable state of affairs from a drafting point of view, and it is, I suggest, a reason why this Amendment should not be passed. I do not think 1003 there is any reasonable apprehension that the Board of Trade will in any way abuse the powers conferred upon them in this Bill, and I would also direct the attention of the noble Lords to Clause 1, subsection (6), which immediately follows the one that we are discussing. That subsection enables the Board, in a case where an individual or local authority is affected by a Private Act which clashes with an order made under this Bill, to grant to any such person or local authority a licence to do any act or thing which otherwise would be unlawful by virtue of the order. If a person comes to the Board and says that by such and such an Act he is compelled to do a certain thing, and by the Coast Protection Act he is prevented from doing that very thing, subsection (6) is a means of escape, and the Board may grant a licence to such a person which would get him out of any such difficulty as the noble Lord contemplates. It is true that the Board need not grant such a licence, but the Board is expected to act in a reasonable manner.
§ Amendment, by leave, withdrawn.
§ First Schedule: