CIVIL AVIATION (LICENSING) BILL

HL Deb 17 May 1960 vol 223 cc881-920

4.8 p.m.

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

Moved, That the House do now resolve itself into Committee.—(Earl Bathurst.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1 [Establishment of licensing authority, and restriction of unlicensed flying]:

EARL BATHURST moved, in subsection (1), to leave out "furthering" and insert: exercising their functions under this Act in such a manner as to further". The noble Earl said: If I am in order, I think your Lordships would like me to say how pleased we are to see the noble Lord, Lord Douglas of Kirtleside, in his place to-day, and to add that we missed him on the Second Reading of this Bill. The noble Lord, Lord Ogmore, will be surprised probably that the first Amendment I move takes into account the very point which he himself raised on Second Reading. I should tell the two noble Lords opposite that it is not necessarily to be taken as an omen for the remainder of the Amendments they will be moving, but, if they will have a little patience, in a while I may be able to do something which will please them also.

During the debate on Second Reading the noble Lord, Lord Ogmore, put the view [OFFICIAL REPORT, Vol. 223 (No. 77), col. 606] that the Air Transport Licensing Board ought not to have the general duty of furthering development of British civil aviation, because this was the duty of the Minister. In replying, my noble friend Lord Mills said that in his view the duty placed on the Board did not absolve the Minister from carrying out his duty to further the development of British civil aviation, and that the Air Transport Licensing Board would in fact help the Minister to carry out his responsibilities in this matter as his agent.

In view of Lord Ogmore's ideas, further thought has been given to the matter, and to avoid any possibility of doubt as to the proper boundaries of the duties of the Board the Amendment has been put down on the Order Paper. The effect of this Amendment is that it will now be the duty of the Board to exercise their functions under this Act in such manner as to further the development of British Civil Aviation. Those words more closely reflect the ideas expressed by the noble Lord, Lord Ogmore, as accepted by the noble Lord, Lord Mills. I bee to move.

Amendment moved—

Page 1, line 9, leave out ("furthering") and insert— ("exercising their functions under this Act in such a manner as to further").—(Earl Bathurst.)

LORD OGMORE

The noble Earl, Lord Bathurst, has asked me whether I am surprised to hear this. I am always surprised when the Government gives way to the Opposition, but I must say it is one of the few poor pleasures that we in Opposition have, that occasionally some of our ideas are found to be acceptable and make their way into a Bill. I am grateful to the Government for listening to the argument that I put up on Second Reading; it was very late at night and there was hardly anyone here, but it seems that someone noticed what I said. We have these new words, and I think they are much better. I entirely agree with the words proposed by the Government. They certainly enhance the Bill and will make it quite clear what the function of the authority is, and that in fact it does not derogate from the very important duties which the Minister must retain.

LORD SHACKLETON

I do not think I should advise my noble friends to vote against this Amendment. I can only hope that the promise of good things to come, which was implicit in the noble Lord's speech, produces concessions on more substantial matters than this. But, on the whole, I agree with the noble Lord that this is a worthwhile improvement.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:

Air service licences

2.—(1) Any application to the Board for the grant of an air service licence shall contain such particulars as may be prescribed; and, subject to the provisions of this section and of any relevant regulations under section five of this Act, the Board may at their discretion, after consulting with such persons, if any, as may be prescribed, either refuse the application or grant the applicant an air service licence for any air transport service or other purpose specified in the licence (being a service or other purpose proposed in the application with such modifications, if any, as the Board may think fit) for such term and subject to such conditions, if any, of the prescribed descriptions as may be so specified.

(2) In exercising their functions under this section the Board shall consider in particular— (f) the extent to which any air transport service proposed would be likely to result in wasteful duplication of, or in material diversion of traffic from, any air transport service which is being, or is about to be, provided under any air service licence already granted;

4.13 p.m.

LORD SHEPHERD moved, in subsection (1), after the first "prescribed" to insert: and in particular shall give details of the route and character of the services which the applicant proposes to run; The noble Lord said: I would certainly join with my noble friends in congratulating the Government on accepting some useful advice that is given from the Opposition, in particular in regard to this Bill. I do not know whether the noble Earl was offering a threat when he said that we were not to expect too much, but he then put a bit of sugar around the pill by saying that we might get some satisfaction.

I beg to move the second Amendment. I do not pretend that this is a very important Amendment. The noble Earl, no doubt, will say that the facts which I am asking should appear in an application would normally be expected by the Board when looking at an application; but we feel that when an application is being made by some company for the operation of an air service it should state in greatest detail the route on which it is going to fly and the character of the service. As we well know, on air lines there are to-day many different types of service. There is the charter service, both for passenger and for freight: there is also the scheduled service. We feel that when an application is made it should be made for a specific flight, a specific service. In other words, if a company is applying for a licence to fly from London to Hong Kong for charter of freight the application should be for freight, and if it is to operate a scheduled service—that is to say, a weekly or fortnightly service—that again should be in the application.

What we do not want to see is a company obtaining a licence to operate, again, shall we say, between London and Hong Kong, and then being free, in competition with the established air line, British Overseas Airways Corporation, be able to fly out, for instance, troops on charter and then use that service to bring back fare-paying passengers, or, conversely, take out passengers and brine back freight on one particular licence. If it wishes to do that, it should obtain a specific licence for that specific job. Therefore I would ask the Government, if they think fit, to accept this Amendment. I do not pretend that it is an important one, but it does call for specific details when a company is making its application. I beg to move.

Amendment moved— Page 2, line 14 after ("prescribed") insert the said words.—(Lord Shepherd.)

EARL BATHURST

The noble Lord, Lord Shepherd, when he introduced his Amendment, said that in his opinion it was not a very important Amendment, but I assure him that that is quite contrary to the opinion of my right honourable friend, and in fact it is because of the importance of the subject matter which the noble Lord has been describing to your Lordships that I cannot accept his Amendment. By calling for details of the route, as the noble Lord did, he goes too far, because sometimes the Board may want to issue a general licence for non-scheduled operations, such as chartering in certain areas of the world, and there may be no reference at all to a specific route between two points. Similarly the reference he made to the "character" of the services does not go nearly far enough for my right honourable friend. This phrase "character" is too vague. My right honourable friend intends to prescribe in regulations that he will make later on under Clause 5 or the provisions that are in that clause, many additional details which must be included in an application for licence. One knows the number of details that one must fill out in a driving licence.

One can well imagine the number of details that would be necessary in an application for licence for operating aircraft of the sort about which the noble Lord has been talking. I assure him that these details would be far too comprehensive to describe in a Bill such as this, and that is the reason why there must be regulations. They will include such matters as frequency, period of the year, class of service and fares. Those are just some of the details my right honourable friend believes as important as those the noble Lord mentioned. Moreover, it may be necessary from time to time to change the particulars that have to be supplied, and this calls for a flexible approach to the matter. We can then proceed, in my right honourable friend's view, by making arrangements for these matters to be dealt with under the regulations I have mentioned under Clause 5. I should explain that my right honourable friend proposes to place a draft of these regulations—and I understand there may be many pages of these—in the Libraries of the two Houses of Parliament at the same time as he consults with the various interested bodies. This will enable criticisms to be considered and taken into account before the final text of the regulations is made and formally laid before the House. When it is laid it will, of course, be open to Parliament to debate the regulations, which are subject to the Negative Resolution procedure. I am afraid I cannot accept the Amendment of the noble Lord.

LORD SHEPHERD

May I say, in view of the noble Earl's reply, that the purpose of moving my Amendment has been amply served. There was only one disquieting point, which was his reference to the granting to an aircraft operator of a wide licence. That, I agree, we can discuss when the regulations are put before the House. I was indeed pleased to hear that the regulations will be quite tight and will cover all the points that we should expect them to cover. Therefore, with the permission of the House, I withdraw my Amendment.

Amendment, by leave, withdrawn.

4.21 p.m.

LORD SHACKLETON moved, after subsection (1) to insert: () The Board shall not grant an air service licence if the proposed service would be likely to result in wasteful duplication of, or in material diversion of traffic from, or significantly prejudice the financial results or potential earning capacity of, any air transport service which is being, or is about to be, provided under any air service licence already granted. The noble Lord said: I beg to move this Amendment, the purpose of which is to tell the Government how they can do what the noble Lord, Lord Mills, when we debated this matter on Second Reading, said he did not see how they could do.

Your Lordships will recall that some doubts were expressed about the effect of this Bill on the success of the two great Corporations. British European Airways and the British Overseas Airways Corporation. We had assurances from the Government, which we fully accept, that their intention is to continue to develop and to use these two Corporations as the main agents for carrying the flag of British civil aviation. We fully accept that that is the intention, but the fact remains, of course, that the undertakings and promises of Ministers, and the belief we may have in them, do not bind future Governments. I am sure your Lordships will agree that if we are not satisfied that the Bill protects the position of those two great undertakings which belong to the community, then we ought to consider whether some further protection is necessary.

I would again remind your Lordships of something with which you are all very familiar: that we have an enormous national investment in British European Airways and the British Overseas Airways Corporation. It is not long ago that we increased their borrowing powers so that in due course there may be anything up to £2 million or £3 million of national, community money invested in these two Corporations, who are using it particularly in order to buy new aircraft. It is of great importance that these Corporations (the same might well apply to some of the independent operators who have already been granted licences) should be able to look well ahead with a certainty that in this highly competitive field, where they are competing very heavily against foreign companies—some of which are heavily subsidised in an indirect way—they should be reasonably confident that not only this Government but future Governments are on their side and in particular, that the new Board that is set up has a clear direction as to the sort of conditions it ought to consider and the sort of conditions it must observe in the granting of licences.

Clause 2 (2) is largely discretionary. I do not quarrel with most of the matters which the Board has to consider in the granting of a licence; but there is one aspect, and there is one paragraph which, in a strengthened form, we should like to elevate to a subsection and to make mandatory. As the Bill is at present drafted, the Board, in reaching its decision on the application for the granting of an air service licence, is obliged only to "consider" the various matters set out in Clause 2; and in regard to subsection (2) (f), they are obliged only to "consider" such factors as whether a proposed new service would be likely to result in material diversion of traffic from an existing service. Thus, even though the Board considered that to grant an application would result in material diversion of traffic from the services of one of the Corporations—or, for that matter, of an independent operator—nevertheless the Board could grant a licence, entirely disregarding the question of material diversion of traffic. This gives no surefire protection to the Corporations, and therefore to the community, who have, in fact, to take decisions of a most serious kind involving heavy expenditure in which they will be liable to be at the mercy, not of ordinary competition, but of the action of a Board which might, for reasons that might seem good to it at the time, consider it suitable to encourage certain additional operators. As a result that might lead to a position in which the Corporations were seriously threatened.

This financial investment in the Corporations is based on expanding traffic, and aircraft have been ordered with this in mind. Therefore we are moving an Amendment to provide a mandatory direction to the Board not to grant licences which, in the Board's opinion would be likely to result in the material diversion of traffic from an established operator; and further, that the Board should not grant a licence where the new service would significantly prejudice the potential earning capacity of an established service. If any of your Lordships thinks that in some sense this is an interference with the natural functioning of competition, I would remind him that what we are trying to do is to protect existing operators against an arbitrary action by the Board. I think it would be much more comfortable and easy for the Board if this particular provision is strengthened, in the way we have suggested, by being elevated to a subsection and made mandatory.

I hope that the Government, who have given clear promises and indications of their intentions with regard to this Bill, will see this as, in a sense, a test of their good faith in the matter. If they accept this Amendment they will not materially weaken in any way the main purposes which they seek to serve by this Bill, but will provide a guarantee for which the community is entitled to ask. I beg to move.

Amendment moved— Page 2, line 23, at end insert the new subsection.—(Lord Shackleton.)

LORD OGMORE

The noble Lord, Lord Shackleton, as usual, has put his case in a most persuasive form, and we have listened to it with great interest. Yet I, for one, am not convinced. I feel that the Government are right, and that these matters, among others, are some of the considerations which the Board should consider when considering a licence. It is no more than that. If one puts them into the Bill in the way the noble Lord, Lord Shackleton, wishes, then I feel that they will become, as indeed he wants them to become, mandatory on the Board. We know what Boards are. We know how these things get more and more solidified as time goes on, and the result will be that, very soon, there will be a hard-and-fast rule. We shall find that nothing will be able to shake them: that the requirement is there, and must be taken into account; and there will be an enormous barrier which any new operator or new vehicle will have to surmount.

The noble Lord, Lord Shackleton, has rather treated this provision as if it referred only to B.O.A.C., B.E.A. and charter companies. But, as I indicated on the Second Reading of the Bill, I can foresee the time, very shortly, when the Board will have a large number of applications involving quite new types of aircraft—if one can call them aircraft—or vehicles which can fly, such as at present no Board has to contemplate. I understand that outside this Palace to-day the Hovercraft was going up and down the Thames. I was not fortunate enough to see it, though I have seen it on other occasions. We also have the jet-propelled wingless vehicle which in its young and immature stage was called the "flying bedstead". In a few years' time undoubtedly all these vehicles will completely revolutionise travel in this country. Already, in relation to the wingless jet propelled vehicle they are talking of speeds greater than the speed of sound. I must say I have not contemplated anything like that, and have more or less regarded these vehicles as in the nature of aerial buses for relieving the strain on the roads; and I still think that that will be their primary purpose, besides taking people from city centres out to airports. So that I myself feel that any undue restriction, any hard-and-fast rules, upon the Board at this stage, when everything is so fluid, would be a great mistake. I would advise the Committee to leave this particular provision as Her Majesty's Government have it in the Bill.

LORD HAWKE

I believe that the noble Lord, Lord Shackleton, goes much too far here. This is pure Luddism. If such an Amendment were carried, it would be impossible for anybody ever to start up any new service with any new vehicle at all.

EARL BATHURST

With a great deal of charm, as the noble Lord, Lord Ogmore, has said, the noble Lord, Lord Shackleton, has asked me to accept this Amendment, and your Lordships may think he made a convincing case for it. But as the noble Lord, Lord Ogmore, also says, if this proposed provision that the noble Lord, Lord Shackleton, would like to see were to become mandatory, then, in effect, this Board would never be able to grant a licence enabling a rival operator to become established on a route that is already being operated, not only by one of the Corporations but by any other individual operator.

In spite of what the noble Lord, Lord Shackleton, says, this Amendment, if accepted, would destroy an object of the Bill. I listened with great interest and care to what he has said, and also to what was said by the noble Lord, Lord Ogmore, in his dissertation on the vehicles of the future; and I daresay that what he said is very true. But the particular reasons why I must ask the noble Lord to withdraw his Amendment relate to the services that are existing to-day. The noble Lord, Lord Ogmore, has described the enormous expense of running an airline. As the noble Lord, Lord Douglas of Kirtleside, knows only too well, we have in the national airlines an investment of something in the region of £279 million, and even that gives insufficient indication of the essential part which the Corporations must play in the future of British civil aviation.

I must emphasise what has been repeatedly stated by my right honourable friend in another place during the passage of this Bill: that the last thing intended is that the Bill shall do damage to the interests of the Corporations. As my right honourable friend said (the reference is to Vol. 618 (No. 68), col. 1231 of the OFFICIAL REPORT of another place), he regards the Corporations as our principal flag carriers—and the noble Lord, Lord Shackleton, has made the same point—for the future, as in the past. And he looks forward to an expanding future for them, as well as for other British operators. This Bill has been very carefully drafted to place all operators, whether the Corporations or independent companies, in an equal position before the Air Transport Licensing Board. The terms of reference of that Board have been thought out so as to give a reasonable measure of protection to established operators, whether they are the Corporations or independent companies. It is against this background that we must visualise this and any other Amendments that are put down in the names of noble Lords opposite.

The effect of this particular Amendment would be to make it mandatory upon the Board to refuse an application for an air service licence if the proposed service would be likely to result in wasteful duplication. Many services are, in some respects, in competition with other services even though the destinations may be different; and the noble Lords, Lord Ogmore and Lord Shackleton, both mentioned international competition. One of the objects of this Bill, as I stated at the beginning of my speech, is to secure expanded traffic for British civil aviation. We therefore have to depend upon the Board to use common sense. My right honourable friend envisages a very high-level Board composed of the top people in, I suppose, all walks including industry; and I believe that we can rely upon them to use common sense in taking a view that will take into account this important test. However, we do not want to make their instructions so rigid as to deny to new operators the opportunity of starting new services—whether with the kind of vehicles of which the noble Lord, Lord Ogmore, has spoken, or otherwise—merely because there might be some small element of wasteful duplication or diversion of traffic involved in the proposals.

The Amendment refers also to "financial results and potential earning capacity". My right honourable friend considered this aspect when the Bill was being drafted, and he is of the firm opinion that the grant of an air service licence which results in wasteful duplication or material diversion of traffic cannot fail to affect significantly at the same time the financial results or potential earning capacity of an existing or potential service. In his view, therefore, the words which the noble Lord, Lord Shackleton, proposes to use would add no real protection to any existing operator and would merely provide an additional ground for arguments before the Board and increase the likelihood of the Board having too rigid a direction. In the light of what I have said—that very real protection already exists in Clause 2, subsection (2) paragraphs (f) and (g), as well as in paragraph (d), which relates to the need for the provision of another service—I must ask the noble Lord to withdraw his Amendment.

LORD SHEPHERD

I must say that I am very disappointed at the attitude of the Government in regard to this Amendment, and also at what has been said by the noble Lord, Lord Ogmore. He made his case rather in the distant future. I and my noble friends are particularly concerned with the facts as they stand to-day.

EARL BATHURST

Hear, hear!

LORD SHEPHERD

We have various examples of charter companies and independent companies operating, in some cases in competition with the British Corporations, in other cases complementary to them. We see no reason why these independent services should not run either in competition with or alongside the established Corporations. But we see in this competitive industry the example where international airlines are joining together. We have the case in Europe of three countries which have national air lines and which find it unprofitable and uneconomic to fly in competition with each other, and they are now banding together and making themselves a strong economic company. If this Amendment were not accepted, it would be possible for the Board to grant a licence to a company who could practically destroy, not the Corporations—they are fairly strong—but an independent company that has already pioneered a particular route. I do not think that that is the Government's intention.

I cannot see why the noble Lord, Lord Ogmore, says that this particular Amendment will make the Board hide-bound. It would have to be proved to them that if they granted an application it would cause wasteful duplication and would prejudice the financial results. That is a question of fact. It will not be a question of a Queen's Counsellor making a case; it will be a question of fact. I think that for the benefit, not only of British Overseas Airways Corporation and British European Airways, but also of the pioneer airlines, this Amendment should be accepted by the Government and passed. And it should be laid on the shoulders of the Board that they are not to grant a licence to any company that decides it would like to operate because the pickings look good, but only to those who have pioneered the route; that so long as the service meets the demand properly no new company should operate, and that the existing service only should operate until there is a need for another air line.

EARL BATHURST

I think that the noble Lord opposite has really missed the point. If this Amendment were accepted it would mean that the Board could never allow another air-line to operate along an existing route, simply for the reason that there might be some amount of wasteful duplication of carrying capacity. But that would not neces- sarily be so. There are cases which one call envisage where at times more aeroplanes may be needed, but not those of the sort which the existing airline has and it would be ridiculous if the Board could not grant a licence for the carrying of passengers if the demand were there. As I said at the end of my speech, the provisions which the Board have seriously to consider are in paragraph (f) (that is the one about wasteful capacity) and also in paragraphs (d) and (g), which bears a little more closely on the financial provisions.

It will be a high-level Board which will be charged to take the interests of British civil aviation as a whole into consideration. I suppose one could imagine it, but I think it would be highly improbable that such a Board would grant licences which would be to the detriment of civil aviation, as would obviously be the case if a decision were taken which resulted in an airline becoming "broke" or destroyed in the way which the noble Lord, Lord Shepherd, mentioned. I think he really has unfounded fears with regard to this clause. I do not think that your Lordships will find it is necessary to have this Amendment, because of the provisions which I have already mentioned in the subsection. I regret that I cannot accept this Amendment.

LORD SHACKLETON

I am sure that this new Board will, as the noble Earl said, consist of the top people, and I am sure that they will discharge their duties with the integrity and the high level of purpose the old Advisory Council under the noble Lord, Lord Terrington, has done. But I do not think that the noble Earl is taking this Amendment at all seriously, and I am sure that the noble Lord, Lord Ogmore, is not. It simply is not good enough to talk about new developments in new aircraft. I did not know that the hovercraft was an aircraft, in any case.

EARL BATHURST

May I interrupt the noble Lord? The noble Lord, Lord Ogmore, brought in this red herring of the hovercraft, but I assure the noble Lord opposite that what I am saying has really nothing to do with hovercraft or "bedsteads" or anything like that. It has to do with flying and aeroplanes at the present time and in the immediate future; and indeed in the far future this clause will cover the same sort of thing. But my right honourable friend is thinking of to-day and the immediate future.

LORD OGMORE

May I ask the noble Lord, Lord Shackleton, whether a Bill which comes before Parliament is intended to deal with matters of the future as well as the immediate present, and, if so, whether it is regarded as inappropriate that such matters should be mentioned?

LORD SHACKLETON

It is perfectly appropriate that such matters should be mentioned. I never said that this Bill should not deal with the matter. I do not want to deal with hovercraft any more than with railway engines. They are not part of the aviation industry, and I merely wanted to push this particular red herring, or whatever it may be called, out of the way. I agree that ordinary take-off aircraft are in fact aircraft. The noble Lord was, I think, a little surprised to hear that they were likely to be used in a supersonic rôle. Of course they are. And these developments will be tremendously expensive developments and we shall look to the Corporations to finance them. It is precisely because we want them to follow an adventurous path in this matter that we want to protect their position.

I do not think it is fair to say that, as a result of my Amendment, it would not be possible to start new services. Of course it would be. But unless the Government are in favour of wasteful duplication, or of the possibility of wasteful duplication, or of the prejudicing of the financial position of the operator, I cannot see why they cannot accept the Amendment. We are planning in this Bill perhaps for the next ten years, perhaps for the next twenty or thirty years, or it may be longer. I fully accept that. But there is a pattern of aviation already established. The Government accept that. There will be these two principal "flag carriers", B.O.A.C. and B.E.A.; and I would remind the Committee that, unlike the Royal Navy, they have to show the flag and to operate at a profit. We are trying to ensure that that is in fact guaranteed to them and that they are getting the confidence they are entitled to have.

I am sorry to go on arguing, but this is a serious Amendment. Obviously the Board would be able to grant a new licence, notwithstanding this particular Amendment, if, in fact, there was to be the traffic to support it. But what we are against is their doing anything that is going to lead to wasteful duplication, and I cannot see why the Government cannot accept this principle right away. We do not want wasteful duplication; we cannot afford it. Nor can we afford to act for some doctrinaire reason. What the reference of the noble Lord, Lord Hawke, to Luddites meant I do not know. We want them to go ahead and to introduce new aircraft within the limits of the funds they are permitted to borrow and which are provided by the State, and to do so with confidence. I really am alarmed by the noble Earl's speech. We should be quite willing to consider variations in the particular words we have used—it may be that here and there they are a little too restrictive. But unless we can have some assurances—and this is really a key point in regard to the intention of the Government—then I am afraid I will, regretfully, not be able to withdraw this Amendment and we will take it to a Division.

5.0 p.m.

LORD HAWKE moved, in subsection (2), after paragraph (f) to insert: () the co-ordination of all forms of transport, whether by air, land or sea, and the

EARL BATHURST

I am sure that the Committee will understand the point of view that the noble Lord takes. Of course, if this Amendment were to be accepted, as I said before, it would break down the whole principle, or one of the main underlying principles, behind this Bill: that another aircraft operator can go on to a route. Suppose, however, there were a case in which the Board went wrong or made a wrong decision. Should such a thing happen, there is, of course, the appeal that the aggrieved party has direct to the Minister; and, no doubt, as a result of that appeal, it could be debated in the House. But if another airline were to start on the route there might obviously be some duplication; and, therefore, if the Board considered that it would be likely to be wasteful it would, this Amendment were accepted, have to refuse the application for the licence. That we cannot accept, because that would mean that its decision would be mandatory.

On Question, Whether the Amendment shall be agreed to?

Their Lordships divided: Contents, 17; Not-Contents, 51.

CONTENTS
Alexander of Hillsborough, V.	Lawson, L.	Silkin, L.
Dalton, L.	Lucan, E. [Teller.]	Stonham, L.
Douglas of Barloch, L.	Milner of Leeds, L.	Williams, L.
Douglas of Kirtleside, L.	Pakenham, L.	Winster, L.
Henderson, L.	Shackleton, L.	Wise, L.
Latham, L.	Shepherd, L. [Teller.]

NOT-CONTENTS
Aberdare, L.	Denham, L.	Merrivale, L.
Ailwyn, L.	Dundee, E.	Newall, L.
Ampthill, L.	Dynevor, L.	Ogmore, L.
Amulree, L.	Fortescue, E.	Onslow, E. [Teller.]
Arran, E.	Fraser of Lonsdale, L.	Portal of Hungerford, V.
Ashton of Hyde, L.	Fraser of North Cape, L.	Rathcavan, L.
Atholl, D.	Grenfell, L.	Rea, L.
Baden-Powell, L.	Hailsham, V. (L. Privy Seal.)	Russell of Liverpool, L.
Bathurst, E.	Hastings, L.	St. Aldwyn, E. [Teller.]
Blackford, L.	Hawke, L.	Sinha, L.
Bridgeman, V.	Horsbrugh, B.	Somers, L.
Buccleuch and Queensberry, D.	Howard of Glossop, L.	Spens, L.
Buckinghamshire, E.	Killearn, L.	Stonehaven, V.
Carrington, L.	Kilmuir, V. (L. Chancellor.)	Stratheden and Campbell, L.
Cholmondeley, M.	Leconfield, L.	Swinton, E.
Colyton, L.	Lothian, M.	Teviot, L.
Conesford, L.	MacAndrew, L.	Torrington, V.

Resolved in the negative, and Amendment disagreed to accordingly.

avoidance of wasteful or unnecessary services or facilities;

The noble Lord said: The last Amendment sought to produce a form of co-ordination by making it almost impossible for anybody else to come in and operate at all—and, moreover, co-ordination only between existing and new air services. My Amendment is much wider scope and, I hope, more reasonable in nature. The noble Lord, Lord Ogmore, is our authority for things to come in the air, but there are also new potentialities on land and sea. Whether a hovercraft is a ship or a plane I do not know, but we see Pneuways being used in Rhodesia, and other forms of land transport will come along, too. While we are considering the licensing of fresh air services, we have an opportunity of seeing that in the granting of licences there is a degree of co-ordination over all our transport.

This will not eliminate competition, because the power to apply for and grant a licence implies potential competition, but where necessary the power can be used to see that the licensed service does not clash unduly with another one. That is what I seek to ensure by my Amendment. The Amendment has the support of those who operate road passenger services, and I should think it would appeal to those who operate railways and passenger coastal ships. On Second Reading, the Paymaster General drew an analogy from road passenger licensing machinery, which provides that when a road passenger operator is applying for a licence, his rail and air competitors have a right to be heard at the same time. If my Amendment is accepted that is the situation I have in view. It seems to me a reasonable point. The wording may be wrong, and the Amendment may be put down in the wrong place in the Bill; but I hope that Her Majesty's Government will see their way to accept the principle. I beg to move.

Amendment moved— Page 3, line 9, at end insert the said subsection.—(Lord Hawke.)

LORD SHACKLETON

The noble Lord's proposal is a cry from the past, from the days shortly after the war when there was a Government which believed in co-ordination of transport. It has a nostalgic sound. But I do not think that the noble Lord has the slightest hope of getting the Government to accept any proposal to co-ordinate transport. We are moved at the thought that those progressive people, the road operators, are worried. They were not very worried about railways in their time, and I am afraid that this, as the noble Lord said earlier, is simply a piece of Luddism.

In fact, the noble Lord would stultify thrusting, competitive, energetic bodies like the airlines and ensure that they are not able to develop as freely as they can. Furthermore, I am not sure that the Amendment would be in order. It seems to go far beyond the range of the Bill, as set out in the Title. But if there is a chance of the Government accepting something on these lines, I think my noble friends and I would be willing, on the broadest level, to accept such a conception; and we await with great interest to hear what the noble Earl has to say about the Amendment. Of course it would be in order for the noble Lord, Lord Ogmore, to talk about hovercraft on this Amendment.

LORD OGMORE

I do not know whether I shall accept the noble Lord's challenge, but it is amusing to see the noble Lords, Lord Hawke and Lord Shackleton, reverse their positions on this Amendment. The noble Lord, Lord Shackleton, said that he would support something like this if it was in order, and if it was possible for the Government to accept it. I do not think that either of these conditions will apply. At least I am consistent. I do not believe that this Amendment should be included in the Bill, because I do not believe in shackling the future. I have been criticised from both sides for looking ahead instead of having my nose, like a hen, on the chalk line of the present. When we are legislating for such a rapidly expanding industry as civil aviation; when we remember that when many of your Lordships were born man had never flown in any heavier than air vehicles; when we think of the enormous strides civil aviation is making, it is important not to put on the industry burdens which are going to shackle it in future.

Apart from that, I agree with the noble Lord, Lord Shackleton, in doubting whether the Amendment is in order, because it amounts to imposing upon the Board executive functions which it could not possibly carry out. This Board is to be a licensing authority, and not an executive which will co-ordinate and, presumably, have to set up some machinery for co-ordination to decide whether some little bus company shall run buses between Aberystwyth and Newquay, and whether B.E.A. should go to Milan and B.O.A.C. to Chicago. The noble Lord, Lord Hawke seems to be thinking of setting up some vast coordinating Board under the ægis of this Bill. I would say that it is not only undesirable but out of order.

LORD HAWKE

The noble Lord would be right if the Board were told, before granting a licence, that they had to co-ordinate. But they are not: they are told that in considering whether they will grant a licence they have to consider, particularly, whether the proposed new services co-ordinate with services already in operation. I do not think that that turns them into an executive body.

LORD OGMORE

I think the noble Lord has a point there, but it depends on the interpretation of the words. The Board would have to consider the work of other people. In fact there is no other co-ordinating authority; and so far as I am aware, the Government have no intention of creating an authority for co-ordinating transport. As the noble Lord, Lord Shackleton, said, such co-ordination as there was under the Labour Government has been destroyed and the present Government are highly unlikely to bring into being a greater system of co-ordination than the Labour Government had in their period of office. The Committee should reject this Amendment, which I think would add a great deal of confusion to the Bill.

EARL BATHURST

I am surprised to have some support from the noble Lord, Lord Shackleton. By the time I have finished I hope that I shall retain the amount of support I have from him and also persuade my noble friend Lord Hawke to withdraw his Amendment. I should like to make it clear that I am in no way criticising the noble Lord, Lord Ogmore—and I do not think that other noble Lords are. But he introduced the question of the hovercraft and "flying bedsteads"—for which, it so happens, this Bill may be suitable in particular cases—whereupon the noble Lord opposite inferred that, because that was so, it was a point in favour of rejecting his Amendments and therefore left out in the cold, so to speak, the urgent problems that the Air Corporations and independent operators are facing to-day. That is the only reason I would have said anything about the noble Lord and his interest in the future, which we must all appreciate.

I have great sympathy with the point that my noble friend Lord Hawke has raised, but, of course, sympathy is not always quite sufficient. He has already said that a similar Amendment was moved in another place, and my right honourable friend then gave an assurance to the House in that connection. I wonder whether my noble friend Lord Hawke fully appreciates what my right honourable friend had in mind. When this Bill becomes law my right honourable friend intends to make regulations under the powers conferred by paragraphs (b) and (c) of Clause 5. These regulations will prescribe who shall be entitled to be heard by the Board in regard to any particular air service licence and who shall be entitled to raise an appeal against any licence that is granted. In fact "other persons" are mentioned in addition to licence holders. It is the intention to provide that operators of surface transport, who are concerning my noble friend, shall be entitled to be heard by the Board and shall be included among the persons who may appeal against the decisions of the Board. In this way the Board and the Minister will be able to take account of other forms of transport when considering air service licences.

As the noble Lord, Lord Ogmore, has said, we are concerned with an air licensing authority, and not with an all-powerful transport co-ordination authority. I should like to draw the attention of your Lordships to the fact that under Clause 2 (2) (h), the Board are obliged to consider, in particular, all objections and representations that may be made to them as provided under Clause 5. I think this meets the point raised by my noble friend, but I am afraid that the Government could not go so far as he would like and put on this Board, which, as I have said, is solely concerned with the licensing of air services, the whole difficult and complicated problem of co-ordination of all forms of transport. This will go far beyond the provisions which your Lordships have already accepted this afternoon by approving the Amendment that I moved to Clause 1. I think that the Amendment moved by my noble friend is really outside the scope of this Bill, and I would ask him if he would be prepared to withdraw it in the light of the assurance that I have been able to give him about the rights of other operators of transport.

LORD HAWKE

I thank my noble friend for his explanation and reply. While I agree that my Amendment is probably drafted too big and too wide, it seems to me that the Minister and I have the same objective in view: namely, that when air licences are being considered operators of other forms of transport may be entitled to represent to the Licensing Board that it would be a wasteful duplication of capital services, or words to that effect, if such and such an air licence was granted. If we have that same objective in view, why cannot we agree upon words to go into the Bill? I agree that there is provision under Clause 5 for making regulations as to the persons entitled to be heard by the Board, but for several reasons that is not wholly satisfactory. The Board are told to receive representations, but they are not given any guidance as to what they should do with the representations; there is no word about the avoidance of wasteful competition, as there is in the case of air services. Of course, we have not seen the regulations. I think my noble friend said that they were going to be put in the Library, and that is a satisfactory way of dealing with regulations; but at this moment they have not been seen and I cannot say whether they are satisfactory. The final and most important point about regulations is that they can be annulled by fresh regulations, whereas it is much more difficult for Parliament to produce amended legislation.

I believe that the Minister and I are trying to get exactly the same thing, and it is only a question of method: whether we should have something in the Bill, and, if so, what should be the form of words. I wonder whether my noble friend would act as a go-between and see whether perhaps the Minister, accompanied by officials from his own Ministry and the Ministry of Transport, who will be concerned in this matter, would be prepared to meet myself or my friends in order to thresh the matter out between now and the Report stage. If I could have an assurance of that kind, I should certainly be prepared to withdraw my Amendment.

EARL BATHURST

I regret that I cannot give my noble friend the assurance for which he has asked, but my right honourable friend will of course read all that he has said. I feel that his fears are not well founded. This Board is a licensing authority; it is not a coordinating board. "Persons" other than licence-holders have still to be provided for under the regulations, and as my noble friend has said, if those "other persons" were mentioned in the Bill, it would be difficult in the future to amend the provision for any reason—if you wanted different persons or the particular persons mentioned in the Bill were no longer required—whereas with regulations, as he has said, it would be simple to specify who is to be able to make objections and representations to the Board. And I would remind my noble friend that surface transport operators will also be able to appeal to my right honourable friend.

LORD SHACKLETON

Before the noble Lord withdraws his Amendment, perhaps the noble Earl can tell us whether this opportunity to make representations will extend to all forms of service. If, for instance, some new type of all-night motor coach sleeper going down one of these new motorways is likely to be in competition with British European Airways, will they be able to make representations? If we are going this far—and I am beginning to detect a sign of penitence on the part of the Government that perhaps we might look at co-ordination of transport—we should like to be assured that other people would not be able to protest against air services without the airlines having the same opportunity in regard to British Railways and the road services.

LORD HAWKE

I believe that some right exists. Certainly the railways have power to protest against a road licence, and I believe that the air operators have, too. It was said in another place regarding air operators by the Member who moved the Amendment.

EARL BATHURST

I can let both noble Lords know the answers to these problems, but I do not think they have a bearing on the exact point my noble friend has brought up in his Amendment. In answer to the noble Lord, Lord Shackleton, I assure him that it is my right honourable friend's intention to let operators of surface transport be represented before the Board if there should be a suitable case for that representation.

LORD HAWKE

If my noble friend will ask the Minister to read carefully what I said, and to think carefully, he will see that there are two points here: first of all, the objection to dealing with the matter by regulations, and, secondly, the desirability of putting something in the Bill as to what the Board have to do when they receive representations. On that understanding, I am prepared to withdraw my Amendment.

EARL BATHURST

I cannot give my noble friend that assurance—

LORD HAWKE

I am only asking for the assurance that he will read my words.

EARL BATHURST

I will certainly give the noble Lord that assurance, but there was a second part to it. I assure the noble Lord that his words will be considered as, indeed, were the words of the noble Lord, Lord Ogmore, at an earlier stage.

Amendment, by leave, withdrawn.

LORD SHEPHERD

I am wondering when the "little bit of sugar" is coming along from the Government. I think this Amendment is perfectly clear to the Committee. Speaking in reply to my first Amendment, the noble Earl stated that there would be very tight regulations. My Amendment means that if the holder of an air licence during a period of twelve months failed to carry out the terms of his application and the terms of his licence, that would give reason for the Board to revoke the licence. It does not mean that the Board will revoke the licence, but that the Board may revoke it if they so wish. I beg to move.

Amendment moved—

Page 3, line 18, at end insert— ("() If it is established upon good and sufficient evidence that the holder of an air service licence has not, during any period of twelve months, regularly maintained the air services in respect of which he applied for the licence, or has unreasonably varied the character of those services, then the Board may revoke the licence.")—(Lord Shepherd.)

EARL BATHURST

I regret to have to inform the noble Lord that the "little bit of sugar" has not quite come along yet, but if he will have a little patience I hope that I shall be able to give him some satisfaction. This Amendment, as the noble Lord said, is somewhat similar to the Amendment to Clause 2, at page 2, line 14, which I was not able to accept. It adds in no way to the powers of the Board as they are contained in the Bill. Subsections (2) and (3) of Clause 3, which deal with revoking and suspending licences, apply whether or not any application has been made to the Board. Under subsection (2) the Board must "revoke, suspend or vary" a licence if they are no longer satisfied that the holder is a competent or fit person to conduct the service. This includes the question whether he has contravened the licence or any of its conditions, about which I spoke before. I do not see how any operator could unreasonably vary the character of the service without contravening the licence, since licences are bound to contain the specific conditions I mentioned on Amendment No. 2.

Under subsection (3) the Board may revoke, suspend or vary a licence if they are satisfied that it is right and proper for them to do so, after having considered the terms of reference set out in subsection (2) of Clause 2. That again deals with competence, finance, objections, and so forth. There cannot be any doubt that the failure of an operator to provide services under his licence would be valid ground on which the Board could properly revoke the licence. Indeed, we took great care to see that the Board had powers to revoke licences so that they could deal effectively with the dead licence problem. In those circumstances, I do not see what benefit would be gained from adopting the noble Lord's Amendment.

LORD SHEPHERD

I beg to thank the noble Earl, and I fully accept all he has said. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Revocation, suspension and variation of licences]:

5.25 p.m.

LORD SHACKLETON moved, after subsection (2) to insert: () If the Board are satisfied that the holder of an air service licence is also the holder of an operator's certificate and that the Board are satisfied as mentioned in paragraph (a) of subsection (2) of section two or this Act, the Board shall not revoke, suspend or vary an air service licence if such revocation, suspension or variation would be likely significantly to prejudice the financial results or earning capacity of any service already granted. The noble Lord said: This Amendment is similar to the one I moved on Clause 2, but the case for it is, I think, even more cogent. There are properly powers in the Bill for the authority to revoke, suspend or vary the licence. There are certain circumstances in which, quite clearly, the Board would be obliged to revoke or vary a licence. We are not at all clear, however, as to the extent to which this power can be exercised. I have put this Amendment down because we should like to know the sort of further considerations the Board would have in mind.

It would be particularly objectionable—as I am sure all noble Lords would agree—if, in the case of a satisfactory service that was being satisfactorily operated, the licence were suddenly, or even at some notice, withdrawn, leading to a serious reduction in the earning capacity of that particular operator. We should like the Board to take into account once again the size of the investments that operators of all kinds have to make when they start a service, and the guarantee they are entitled to have when they are granted such a licence. Perhaps we can be told something by the noble Earl as to the conditions under which such a revocation can be made. Clause 3 is not very explicit on the subject, and I might be disposed not to press this Amendment if we could get some satisfactory explanation. But we should like an explanation because I am more alarmed than ever since we had the Government's attitude on my earlier Amendment explained. We should like to have an assurance on this. I beg to move.

Amendment moved— Page 5, line 22, at end insert the said subsection.—(Lord Shackleton.)

EARL BATHURST

AS the noble Lord has said, this Amendment is a companion to the first Amendment put down by him to Clause 2. Whereas Clause 2 dealt with the grant of licences, Clause 3 deals with their variation. The main purpose of this Amendment is to prevent the Board from revoking, suspending or varying any licence, if to do so would significantly prejudice the financial results or earning capacity of the operator holding that licence. I think I have already indicated how much my right honourable friend is concerned with the interests of operators, be they the Corporations or be they independents, but this Amendment is contrary to the concept underlying this Bill. It is made abundantly clear in subsection (1) of Clause 3 that any persons entitled to be heard by the Board may apply at any time to the Board for any air service licence to be varied, suspended or revoked, whoever may be the holder. The Board would be bound, in considering the application, to have regard to exactly the same considerations as applied to the grant of the original licence. These, to which I have already referred as the terms of reference, are set out in subsection (2) of Clause 2. They concern among other things the fitness and finance of the operator and the objections, and it is indicated most clearly that the Board must consider the interests of existing operators. This is the protection the Bill provides for existing operators, and I suggest to your Lordships that one must rely on the common sense and wisdom of the Board to proceed reasonably and with full regard to the stake which existing operators, be they Corporations or independent, already have in the industry. If an operator is dissatisfied with the decision of the Board then there is the right of appeal to the Minister open to him.

LORD SHACKLETON

I am obviously not going to get much satisfaction from the Minister. I should have liked to see certain of these considerations made mandatory. I still think they should be. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.32 p.m.

LORD SHACKLETON moved to leave out subsection (4) and to substitute: () Subsections (2) and (4) of section two of this Act shall apply for the purposes of the Board's functions under the last foregoing subsection with respect to the revocation, suspension or variation of an air licence as if—

1. (a) the reference therein to the Board's functions under the said section two were a reference to the Board's functions under the last foregoing subsection;
2. (b) any reference therein to the applicant for an air service licence were a reference to the holder of such a licence;
3. (c) any reference therein to any air transport service proposed were a reference to any such service authorised by the licence or, as the case may require, to any variation proposed to be made in the licence."

The noble Lord said: This simple Amendment, which I commend to your Lordships, is designed to produce a clearer form of words than those already used in the Bill. If your Lordships will look at Clause 3 you will see that subsection (4) contains important provisions, which, however, are not so very easy to understand, and I have put down a form of words, admittedly with a little help in preparation, which I hope will be acceptable to the Government and will make this Bill rather more intelligible than the Parliamentary draftsman, despite his admirable work elsewhere, has succeeded in doing in regard to this particular subsection. I hope that this is the occasion when we shall extort a concession from the Government. I beg to move.

Amendment moved— Page 5, line 28, leave out subsection (4) and insert the said new subsection.—(Lord Shackleton.)

EARL BATHURST

This is indeed the moment the two noble Lords opposite have been waiting for. I have some sympathy with the purpose which the noble Lords opposite have in mind. There may well be sufficient grounds for saying that the words "with the necessary modifications" which occur in subsection (4) of Clause 3 (which deals with the granting, revoking and varying of licences) are not sufficiently specific and that they could be clarified. That, indeed, is the object and aim of the noble Lords' Amendment. The noble Lords have attempted such clarification in regard to the application of subsections (2) and (4) of Clause 2. I would call those subsections a sort of yardstick for the matters and objections and so forth to be considered. I accept their ideas as affecting those two subsections and I think they have merit.

On the other hand, having heard their argument I do not understand why they have not brought subsection (3) of Clause 2 into the ambit of their Amendment, and I think the reason must be that the noble Lord has worded his Amendment "(2) and (4)", whereas the words actually used in the Bill are "(2) to (4)", which of course included (3); I fancy that is the reason why that slipped out. I think this requires more thought than I have been able to give it since the Amendment was put down. I will give an assurance that I will look into it in the light of the points the noble Lords have made, and if my right honourable friend considers it desirable I will deal with the matter on Report, if necessary putting down a comprehensive Amendment to cover the reference to subsection (3), and the points covered by the noble Lords opposite.

LORD SHACKLETON

I must apologise for this mistake. Perhaps we were exhausted at that stage of the drafting. With that assurance, for which I am grateful. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Regulations]:

EARL BATHURST moved, in subsection (1), after paragraph (e), to insert: () for the making of representations to the Minister by the Government of the Isle of Man or by the States of Jersey or Guernsey as respects any such decision of the Board as is mentioned in the last foregoing paragraph, and for applying in relation to those representations, with such modifications as the Minister thinks fit, any provision relating to appeals contained in this Act or in any regulations made thereunder;

The noble Earl said: This Amendment deals with sovereign Governments and their right to make representations to the Minister instead of appealing against decisions of the Board. The Governments of the Isle of Man and the States of Jersey and Guernsey have sovereign authority to operate systems of their own for licensing civil aviation if they wish. By agreement with those authorities the present licensing system has been extended to cover the islands by Order in Council. It is proposed that the new system should likewise cover the islands, and the necessary Orders in Council will be made under Clause 11. There have been, and will continue to be, full consultations with the island authorities about the application of this scheme to the islands.

It is naturally envisaged that the authorities in these islands will be consulted by the Board about all applications that concern them, and the necessary powers to ensure this are contained in Clause 2, subsection (1) of the Bill, where they are described as "such persons". Nevertheless these authorities are anxious to retain the right to make representations to the Minister to consider any case where their views have not prevailed with the Board, and they wish the Minister to consider whether the decision of the Board ought to be set aside. It would not be appropriate that these sovereign authorities should have to appear as appellants in the same way as, for instance, the disappointed applicant for a licence. The Amendment accordingly ensures that their representations can be dealt with, without their having to make a formal appeal. The Minister has been informed that this Amendment meets the wishes of the island authorities in every respect. I beg to move.

Amendment moved— Page 6, line 40, at end insert the said new paragraph.—(Earl Bathurst.)

On Question, Amendment agreed to.

EARL BATHURST moved in subsection (1) (a) to leave out all words after "payment" to the end of the paragraph and insert: to the Board in connection with air service licences or applications relating thereto of such fees determined in such manner as the regulations may with the approval of the Treasury provide;

The noble Earl said: This Amendment deals with the problem of spreading the cost of the Board fairly over those who benefit from its actions. The effect of this Amendment is to replace the present paragraph (d) of subsection (1) of Clause 5 by a new paragraph which requires the Minister to make regulations for the payment to the Board in connection with air service licences or applications relating to air service licences of such fees determined in such manner as the regulations made with the approval of the Treasury provide. The Amendment is designed to permit greater flexibility over the methods of assessing the fees for applications and licences. The original wording required fees to be charged only in connection with applications for the grant, revocation, suspension or variation of a licence or for the grant or variation of licences as a result of application. It did not apply to transitional licences for which no applications have to be made.

On examining the details of possible schemes for charging fees it appeared that fees charged on the basis provided for might not work out satisfactorily so as to spread the essential cost of the Board fairly between those members who benefited from its activities. It seemed to the Minister that it would be better to take a power for the collection of fees in more general terms, so that alternative bases of charging, for instance, by annual fee or some quite different means of assessment, could be discussed with interested parties before decisions were made. It is the Minister's intention that such conversations should be held before such regulations are drafted. In any case the regulations will be subject to the Negative Resolution procedure.

LORD SHACKLETON

It is rather difficult to judge this Amendment. I quite see the wish of the Government to introduce flexibility and to cover the eventualities, particularly in the transitional stage, which are not covered. We shall have an opportunity to look at this in detail when we see the regulations. I do not think it is going to be easy to satisfy all the interested parties that this will be fairly done, however hard the Government try.

EARL BATHURST

I want to make it clear that it is mainly to the transitional licences that this applies. I could hardly call it a drafting Amendment. Provision for a fee for a transitional licence had not originally been made in the Bill.

On Question, Amendment agreed to.

5.40 p.m.

EARL BATHURST moved, in subsection (2), after paragraph (b) to insert: () as to the liability of any of the persons heard by virtue of paragraph (b) of subsection (1) of this section at any meeting of the Board in respect of costs or expenses incurred in connection with that hearing;

The noble Earl said: The Bill already provides that the Minister can make regulations to determine the liability of parties in respect of costs or expenses in making an appeal to the Minister—that is right at the end of Clause 5 (1) (c). This Amendment enables the Minister to make similar regulations to determine the liability of costs to parties incurred at a hearing before the Board. I beg to move

Amendment moved— Page 7, line 7, at end insert the said new paragraph.—(Earl Bathurst.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7 [Prohibition of aerial advertising and propaganda]:

5.41 p.m.

LORD CONESFORD moved to add to the clause: () For the removal of doubt it is hereby declared that the expression 'aircraft' in this section includes any balloon (whether fixed or free).

The noble Lord said: Clause 7 of the Bill deals with the prohibition of aerial advertising and propaganda. The sole object of my Amendment is to make certain that the clause shall achieve its purpose as explained by my noble friend Lord Mills in the debate on Second Reading. My noble friend, when he comes to reply to my Amendment, may well convince me that it is unnecessary because balloons will already he included beyond a doubt under "aircraft". If he does so convince me, needless to say I shall ask leave to withdraw my Amendment.

Perhaps I may tell the Committee why I am so anxious that this clause shall succeed. Rather more than twenty-one years ago, on October 28, 1938, the then Secretary of State for Air appointed a Committee under the chairmanship of my noble friend Lord Gorell, with the following terms of reference: To examine the existing regulations governing the flight of aircraft over populous and other districts, and the adequacy of the means of their enforcement; and to consider whether further measures are required to regulate such flying in the interests either of the safety or the amenities of the public.

At that time I was working hard with my friend the late Lord Horder in the cause of noise abatement. With others, we had formed the Noise Abatement League, of which the late Lord Horder was president. The League gave evidence before Lord Gorell's Committee; I drafted the written evidence and I gave oral evidence in support of it. If I may quote one paragraph of the written evidence, it was as follows: The League strongly recommends that the use of aircraft for advertising purposes should be prohibited.

The Committee reported in March, 1939, and their Report is Cmd. 5961. The Committee reported in our favour. A few months later, in June, 1939, the Government published a short memorandum giving their decisions on the recommendations of the Gorell Committee. May I quote briefly from what the Secretary of State for Air in the then Government said: The Report of the Committee on the Control of Flying has been carefully considered in consultation with other Government Departments concerned. The decisions which have been reached on the main recommendations of the Committee, set out in paragraph 72 of their Report, are as follows"— I am going to quote three. They are: (i) The Air Ministry should take cognisance of the amenity as well as the safety aspects of flying. This recommendation is accepted. (iii) Sky shouting should be prohibited for all private and commercial purposes; and (iv) No increase in the existing number of aircraft used for banner flying purposes should be permitted, and the licences of those at present operating should not be renewed beyond 1st October, 1941. These recommendations are accepted. Legislation will be required to give effect to them, and its form is now being considered.

That was in June, 1939 (Cmd. 6045). The form of the required legislation has now been under consideration for twenty-one years, and the form which has been decided on is that which appears in Clause 7 of the present Bill. Twenty-one years is a somewhat long period of gestation. That period has been marked by frequent letters of mine to various Secretaries of State of all Parties and to other Ministers. I had a friendly correspondence on the subject, I remember, with the noble Lord, Lord Pakenham, at the time when he was Minister of Civil Aviation. It was most friendly, but he could not find time to bring this legislation to fruition at that moment.

After twenty-one years, a miscarriage or mishap at this stage would really be too much. I have hope, therefore, that the noble Lord, Lord Ogmore, who tells me that he welcomes the baby, will not press his objection to the place of birth, which is the subject of the next Amendment.

My sole reason for this Amendment about balloons is to make quite sure that they are covered. Advertisement by captive balloons is in fact one of the forms of horror that is now threatened, and the clause must cover it beyond all doubt. The reason for such doubts as I have is this. In earlier Statutes a definition of "aircraft" has been considered necessary—see, for example, the Ships and Aircraft (Transfer Restriction) Act, 1939, Section 12. Nevertheless, that is a long time ago, and it may be that there have been so many Acts concerned with air navigation in the interim, in which it has been successfully assumed that "aircraft" does include balloons, whether fixed or free, that my Amendment is unnecessary. If that is the technical legal advice that has been given to the Government, needless to say I shall accept it. I am only glad that a recommendation which I persuaded a Government Committee to adopt some twenty-two years ago, which the Government themselves agreed should be embodied in legislation twenty-one years ago, is in this clause at last being enacted. I beg to move.

Amendment moved— Page 9, line 36, at end insert the said subsection.—(Lord Conesford.)

EARL BATHURST

It is, of course, for the very reasons that the noble Lord has expounded to us, following the views of his friends of the Noise Abatement Society, that Her Majesty's Government have decided to include Clause 7 in the Bill. Just in passing—I do not know whether I am the correct person to say this—I think that we should remember nostalgically brave and gallant men, of whom I suspect many were probably friends of the noble and gallant Lord, Lord Douglas of Kirtleside, who eked out a living between the wars, and possibly just after the last war, in skywriting or pulling along advertisement banners with a small aeroplane. All that will now be no more, but I am informed that a reasonable time will be allowed before the effects of this clause actually operate, so that people will have a chance to get out of that business and can avoid putting more money into it.

In reply to what was said by the noble Lord, Lord Conesford, I must admit that the term "aircraft" is not defined in the Bill; nor is it defined in the Civil Aviation Act of 1949. It is, however, normally understood to mean any vehicle supported wholly by the air. Article 73, subsection (1) of the Air Navigation Order which was made under the Civil Aviation Act, 1949, defines aircraft as including balloons, gliders, airships and flying machines. We are advised that there can be no reasonable doubt that in the context of Clause 7 the word "aircraft" in fact covers balloons, whether fixed or free, and kites. In the Chicago Convention of 1944, the definition of aircraft was: any machine that can derive support in the atmosphere from the reactions of the air, and I believe that that, too, would cover exactly the points about which the noble Lord, Lord Conesford, is worried. I have been assured that Clause 7 as it stands will prohibit all advertising of the kind of which the noble Lord has complained, and will also stop sky-writing with mist or smoke. I regret, however, that if the noble Lord still wishes to press his Amendment I shall have to resist it, because it would cast doubt on the meaning of the word "aircraft".

LORD SHACKLETON

We are grateful to the noble Lord, Lord Conesford. I am wondering if the time has now come when Her Majesty's Government ought not to consider a definition of "aircraft". I should have thought that a balloon was undoubtedly a hovercraft, but I very much doubt whether a hovercraft is an aircraft for the purposes of this Bill; and perhaps I ought to apologise to the noble Lord, Lord Ogmore, whom I treated rather roughly in this matter. Although this point is not strictly relevant to this particular clause, it has arisen on the question of the definition of "aircraft". I am wondering whether, in fact, this Bill is to cover hovercraft. Are hovercraft to be licensed?

LORD CONESFORD

Perhaps the noble Earl, the Minister, had better speak first. I am going to ask leave to withdraw this Amendment and to give reasons why I am doing so, but if the noble Lord, Lord Shackleton, wants an answer to the question: "Are hovercraft to be licensed?", clearly that must be given, not by me but by the noble Earl.

EARL BATHURST

At present the hovercraft is obviously a hybrid—I expect many of your Lordships saw its antics outside the House to-day. It is likely that it could be licensed or registered as an aircraft, although equally, perhaps, it could be registered as a ship or ferry boat, if that was to be the form of operation. Meanwhile, the definition I have quoted— any machine that can derive support in the atmosphere from the reactions of the air suffices to describe an aircraft, although no doubt my right honourable friend can consider that again if necessary in the future.

LORD CONESFORD

My reason for withdrawing this Amendment is precisely that which I adumbrated in my speech proposing it—that I defer, of course, to the legal advice that has been given to Her Majesty's Government. In answer to the friendly intervention of the noble Lord, Lord Shackleton, I would draw his attention to a fact with which I believe all lawyers are familiar—that when something is stated "for the removal of doubt", then, if, in fact, there was no doubt in the minds of lawyers, all that one achieves by the statement is to create a doubt. There may therefore be substance in the objection to these words and, in the circumstances, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

5.56 p.m.

LORD OGMORE moved to leave out Clause 7. The noble Lord said: As your Lordships can imagine, I am not prepared to go to the stake over this Amendment or even to die in the last ditch in defence of it. I have put it down for two reasons, first, because I do not feel that the actual proposal of the Government in Clause 7 goes far enough; and secondly, because I am not at all sure that this particular clause should be in this Bill, in any event. I entirely agree with both the noble Earl, Lord Bathurst, and the noble Lord, Lord Conesford, that this provision is most desirable, but I am not sure whether it should be in this Bill, which deals with a licensing authority and sets up an Air Transport Licensing Board with the general duties of which we have heard to-day. That Board will grant air operators' certificates and air service licences; but all those duties, important as they are, have nothing whatever to do with prohibiting the odd man who takes up an aircraft and gallivants about the sky advertising, as I said on Second Reading, somebody's beer or detergents.

This is a penal clause which prohibits this kind of thing and says that those who do it will be penalised; and it seems to me that the clause should be in another Bill altogether—perhaps a separate one—and not in this one. Supposing one were looking to advise a man who proposed to go up in the air and advertise somebody's beer, one would be very unlikely to look at the Civil Aviation Licensing Bill to find out whether or not that could be done and what was the penalty. Although I do not want to make a major point of this, I feel it is just as well to have some kind of consistency in legislation, so that we have in each Bill clauses which relate to the main purpose of the Bill and not to something which is completely outside it.

As to the merits, I entirely agree with the noble Lord, Lord Conesford. I congratulate him on a twenty-first "birthday" and perhaps that is a more appropriate analogy than talking, as he did, of parturition. In congratulating him I would say that he is rather lucky, for, as he will recall, Professor Dicey said that in England 30 years was the usual time that an idea of this kind took to find its way on to the Statute Book; so the noble Lord is nine years ahead of that average.

When, in speaking of the merits, I said I did not feel that the clause went far enough, I meant that while I do not like people desecrating the heavens skywriting—and I think it is an offence against nature to see "Vote for Bloggs" and things of that kind written across the sky—to my mind that is not the only or the most important offence that we have to suffer from the air in these days. There is the question of noise; and the only noise covered by this provision is that which is emitted by way of advertisement. The Bill does not speak of the noise of the hovercraft, or what the noble Earl, Lord Bathurst, called the "flying red herring" and the helicopter.

Speaking generally as to noise, first, I do not believe it is necessary in many cases for these aircraft to make the noise they make. When there are protests, very often the users manage to "dampen down" the noise. It may be only my imagination, but I notice that the 707s passing my house on the way to London Airport do not seem to make anything like the amount of noise now that they did a year ago. Then it was deafening; now it is bearable. But when we come to the occasional use of a group or mass (or whatever the collective noun may be) of helicopters, the noise can be really appalling. Only recently those who were listening in to Her Royal Highness's departure in the Royal Yacht heard five helicopters manœuvring at quite a low altitude around the Royal Yacht, taking photographs. That seems to me quite as much an undesirable practice as anything in this Bill. So while being quite prepared not to press the Amendment, and indeed to withdraw it—I do not want to lose the noble Lord, Lord Conesford, his excellent work which he did 21 years ago—I ask the noble Earl to consider the points I have put and see whether he can do something on Report.

Amendment moved— Leave out Clause 7.—(Lord Ogmore.)

LORD CONESFORD

I am very glad to hear that the noble Lord does not propose to press this Amendment, because when at last one gets something which is very desirable indeed, it would be the greatest pity not to accept it, merely in the hope of another Bill, of which there is at the moment no prospect, and for which we might have to wait another 21 years. I could then scarcely hope to see the ultimate triumph of my evidence.

As to the point the noble Lord made about advising clients, I am perfectly certain that, if anybody asked him for advice on whether or not something was a legitimate use of civil aircraft, the one thing he would be quite certain to look at would be every Bill which had the words "Civil Aviation" in its Title. Therefore, I do not think there is very much in that point. Finally, on the points he raised as to merits, of course I agree with him about the importance of the problem of noise. But the problem of noise very often deals with the very difficult question of the amount of noise. Advertising in the air is a thing which should be prohibited altogether, quite irrespective of the amount of noise, and that is one of the reasons for covering kites and balloons. For all those reasons I hope that the Government will resist this Amendment and I am glad that the noble Lord will not press it.

EARL BATHURST

I can assure the noble Lord, Lord Ogmore, that under Clause 7 the Board will have no power whatsoever as to the control of aerial advertising. Clause 7 bans advertising in the air and makes it an illegal pursuit. No doubt the police force will run you in for aerial advertising in the future. However, had Clause 7 not been included in the Bill undoubtedly the Air Licensing Board would have had to deal with aerial advertising. It is very doubtful whether aerial advertising could be called an "air transport service". Therefore, it would be most likely that it would be outside the actual terms of reference for the Board in this type of licensing and therefore the Board would have had to grant a licence for such aerial advertising. I must agree that this Bill is a peg on which to hang this particular clause; and I am informed that it is quite certain that, as a result of this clause, there could be no future legal aerial advertising.

THE EARL OF LUCAN

Before the noble Earl sits down, could he elucidate the meaning of the words Save in such circumstances as may be prescribed"?

EARL BATHURST

That is with regard to action in the national interest—police instruction or something like that, possibly by loudspeakers from an aeroplane used by the police. But whatever else it may mean, it certainly means that there is to be no commercial advertising by such means covered in the proscription.

THE EARL OF LUCAN

Will these matters be the subject of regulations by the Minister?

EARL BATHURST

Yes. I did not mention the point of noise which the noble Lord, Lord Ogmore, mentioned, because I am afraid that that is quite outside the scope of this Bill and of the clause about advertising. If persons commit an offence through noise they must be at a certain height. They cannot be over the height or under the height or they will be running into trouble either from the air traffic control or for being too close to the ground and causing a danger. So I am afraid that that matter does not come under the clause in any way.

LORD OGMORE

As I said, I do not propose to delay your Lordships for any length of time on this Amendment, or to do other than withdraw it. I put it down in order to have these points considered. We have had them considered and we have had the Government's reply. I feel, however, that at some stage we shall have to consider more seriously the question of noise. I am quite certain about that. There is a limit to what people can be expected to endure. With the air becoming more and more filled, we shall have to have proscriptions for noise, as with motor cars and motor-cycles. Perhaps in due course another Bill will be introduced, by this or another Government, which will deal with noise emitted not only in the form of planes advertising but of rotor blades whirling round so that photographs can be taken of a ship, or something of the kind. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 7 shall stand part of the Bill?

LORD CONESFORD

On the Question, Whether the clause shall stand part of the Bill, may I remind the noble Earl, Lord Lucan, who asked about what might be prescribed, that my noble friend the Paymaster General had this to say in the debate on Second Reading [OFFICIAL REPORT, Vol. 223 (No. 77), col. 600]: It is intended that these regulations should make provision for aerial advertising only where needed for public purposes, such as crowd control, or for communications between the aircraft and the ground for the purposes of safety. I wonder whether, between now and the Report stage, the Government would consider, on this clause, whether that limitation about the regulations (about which the noble Earl, Lord Lucan, questioned the noble Earl) might be made explicit in the Bill by some appropriate words. I have an open mind about it, but I hope that the Government will consider that point.

Clause 7 agreed to.

Remaining clauses and Schedule agreed to.

House resumed.