HL Deb 26 July 1966 vol 276 cc685-700

2.58 p.m.

Order of the Day for receiving the Report of Amendments read.

Clause 4 [Consideration of applications for licences, etc.]:

LORD CHAMPION moved, in subsection (2), to leave out "he shall have the like powers and duties in relation to any such application", and to insert instead: "(a) any decisions taken or other things done by a licensing authority in relation to those applications shall be of no effect; and (b) the Minister shall have the like powers and duties in relation to all applications so made for the port in question".

The noble Lord said: My Lords, if the House will grant me permission, before moving Amendment No. 1 I should like to take the opportunity to put right something I said at the Committee stage which I have since realised was not quite accurate. In response to a question from the noble Viscount, Lord Simon, I indicated that in the initial stage of the licensing an employer applying for licence would have a right of appeal not only against the decision in his own case, and against the proposals of the licensing authorities as to the employment of dock workers by the authority itself, but also against the decision in the case of other employers. This is not so. An employer will have no direct right of appeal against the authority's decision in the case of a fellow employer.

What I had in mind was that where an employer appeals against a decision as regards himself, he can, by doing so, enable the decision for the port as a whole to be reconsidered. This might be very necessary. If, for instance, he is appealing because he feels it is proposed to allocate to him too many workers, this could be put right only by allocating a smaller number to him and at the same time increasing the allocation proposed for other employers, since, one way or another, all available registered dock workers must be allocated by virtue of Clause 5(4). In this way, consideration of his appeal would bring in question the decisions affecting the other employers in the port. Provision is made for this in paragraph (b) of Clause 8(2) of the Bill. It would not, however, be possible for employer A to lodge an appeal directly against decision in the case of employer B. I think the House will agree that it would be undesirable to have "cross-appeals" of that kind. I am sorry that in the rather rapid exchanges during the Committee debate I did not put the position with complete accuracy. My Lords, I have, of course, informed the noble Viscount and the noble Earl, Lord Jellicoe, of my intention to make this correction, and I hope that the House will forgive my mistake in Committee.

May I now come to the first Amendment in my name? The effect of this Amendment is to add to subsection (2) of Clause 4 the new provision in paragraph (a) of the Amendment. Paragraph (b) simply repeats in substance what is already in the subsection, but it is needed because we now have to arrange the subsection in two parts, (a) and (b). The effect of paragraph (a) of the Amendment is that where a Minister calls in applications in a particular port because the licensing authority is not dealing with them expeditiously, the Minister will deal with them all afresh, and any decisions which the licensing authority has already given will be of no effect. The authority may, for instance, have decided one application but not the rest, but because all the applications in a particular port must be looked at as a whole, the Minister needs to start with a clear slate. This is a minor piece of tightening up which I think is clearly right, and I hope that the House will accept it.

Amendment moved— Page 3, line 31, leave out from ("and") to ("as") in line 32 and insert the said new paragraphs.—(Lord Champion.)

EARL JELLICOE

My Lords, I should like to thank the noble Lord, Lord Champion, for the explanation with which he prefaced his remarks on this Amendment. For my part, I am most grateful to him. The noble Lord concluded his introduction to the Amendment before your Lordships' House by saying that in his view this Amendment was clearly right. I would echo what he then voiced.

On Question, Amendment agreed to.

Clause 5:

Conditions and duration of licences

5.—

(5) A licence shall be granted for a period specified in the licence, being not less than three years nor more than seven years from the date of the coming into force of the licence.

VISCOUNT SIMON moved to add to subsection (5): Provided that the licensing authority may in exceptional circumstances, and with the prior approval of the Council, grant a licence for a period in excess of seven years from the said date.

The noble Viscount said: My Lords, I am sorry to find myself having to commend this Amendment to your Lordships again. After the discussion we had on the Committee stage I had hoped that the noble Lord and his colleagues might have found it possible to put forward an Amendment themselves to meet this point. Had it been my birthday to-day, instead of that of the noble Lord, perhaps I might have expected a birthday present; but it has not come that way. I put down this Amendment again, not in order to rehearse once more all the arguments, which your Lordships will not want to hear again, but in order to try to bring the issue into point so that your Lordships can be advised how to deal with it.

I agree, of course, with what the noble Lord, Lord Champion, said in Committee, that here we are engaged in balancing two conflicting considerations. Where I differ from him, and from the view which, apparently, is the view of Her Majesty's Government, is that I feel that this Amendment, by giving some flexibility to the licensing authorities, would be an improvement to the Bill, and would not endanger the proper control of the licensing system; whereas the Government think otherwise. I cannot help feeling that in spite of his disclaimer the noble Lord still has some doubts about the ability of the licensing authorities to do their job properly, because I see no reason why, with the Amendment that I am putting forward, the licensing authorities should ever let the matter get out of hand or lose control of the position.

I agree that the licensing authorities will be undertaking new tasks, and it would very dangerous to be dogmatic about the difficulties which may face them. But I should have thought that the difficulties that might be raised by this Amendment are perhaps less than the difficulties which they will have to face in any case. At one time I think the noble Lord suggested that this would place an almost intolerable burden on them, but in fact the licensing authorities will have the duty of discriminating between applicants. They will have to discharge their duties to the best of their ability, and I do not see why they should not do so to the satisfaction of all concerned. This small degree of flexibility would not, I believe, add anything to their burden in this respect.

It may be that there is not a great deal one way or the other on this Amendment, and certainly I would not suggest to your Lordships that, if it were rejected, this otherwise good Bill would become a bad Bill. This is a marginal point, but I believe that it would improve the Bill, and I suggest to your Lordships that even if, as a result of this Amendment, there were one case in which a foreign corporation could be persuaded to establish a business here instead of on the Continent, on the lines of the example which I quoted to your Lordships in Committee, that would make the Amendment worth while. I am in some doubt about what advice to give your Lordships about the manner of dealing with this Amendment. Perhaps it would be right—in fact I am sure that it would be—for me to sit down now, if your Lordships would perhaps give me leave to speak again at the end of the discussion, and hear what the noble Lord has to say about the further consideration which the Government has given to this matter; and perhaps to hear what other noble Lords have to say on the subject. I beg to move.

Amendment moved— Page 6, line 18, at end insert the said proviso.—(Viscount Simon.)

3.9 p.m.

LORD CHAMPION

My Lords, because this is Report stage I can speak only once on the Amendment in the ordinary way, and the noble Viscount, having moved the Amendment, will be able to reply at the end of the discussion. I wonder therefore whether I may hear all the arguments of the noble Lords on this point before I reply, after which, of course, the noble Viscount will be able to reply to the whole debate.

EARL JELLICOE

My Lords, the noble Lord, Lord Champion, was looking at me just now in an inviting manner, but I, too, do not wish to use up my one opportunity to speak, and I am happy to leave the field to him.

LORD CHAMPION

My Lords, I am sorry the noble Earl did not rise to the fly which I dangled over his nose. When we discussed this Amendment at some length in Committee, I undertook, as your Lordships know, without any commitment as to what the result might be, to refer the issue again, in the light of the debate, to my right honourable friends who are responsible for this Bill. This I did. I can assure your Lordships that the matter was most carefully looked at and full weight was given to the arguments which were deployed by extremely knowledgeable and able Members of your Lordships' House. The arguments were reinforced to some extent by those which I put up as to the sources from which the Amendments sprang, so I can say to your Lordships that this matter has again been carefully considered. These were no empty words just for the purpose of gaining time. They have been most carefully considered. But I have to tell your Lordships that, taking all this into account, the Government do not feel able to accept any Amendment on the lines of the one we are discussing, and adhere to the view that the provision now in the Bill should stand.

It would serve no useful purpose for me to go again in detail over the arguments which have brought the Government to this conclusion, since I stated them fairly fully in Committee, but clearly it is incumbent on me to say something now. We—the Government—have here to reconcile conflicting considerations—on the one hand, the employer's need for security, and, on the other hand, the need for the licensing authorities to retain effective control of the situation. We cannot and must not give all the emphasis to the first of these considerations at the expense of the second. Indeed, if we were to pay regard only to the employer's need for security of tenure—and I am talking here about the sort of employers who have invested, or would invest, heavily—which the noble Viscount has in mind, the logical thing would be to exclude them from the operation of licensing altogether, since the need to apply for a licence in the first place must import a degree of uncertainty into the situation and this must necessarily recur when the licence comes up for renewal, even though this might be after a long interval.

In the Government's view, to provide for licences for periods in excess of seven years will in practice (whatever may be true in theory) mean in the event that there will be too much surrender by licensing authorities of their control over the situation as it develops in the ports. I do not think we can escape this conclusion by hedging round a provision for longer licences by the sort of safeguards that are contained in the noble Viscount's Amendment—that long licences would be granted only in exceptional circumstances and with the prior consent of the National Ports Council. I would submit that there would be a very large number of employers who could and would make out a reasonable case that their circumstances were exceptional. It just would not be acceptable or practicable for licensing authorities or the Council to pick and choose arbitrarily within the field of such employers. A provision such as that in the Amendment would necessarily need to be administered on some consistent principles, and in the Government's view the end result would be that we should have licensing decisions being made which would leave licensing authorities hamstrung in future years to deal adequately with a developing and changing situation.

I think I should emphasise that once a licence is granted, under the provisions of the Bill that decision is for all practicable purposes irrevocable until the licence has run its term. I think that in our previous discussion, the noble Lord, Lord Rea, referred to the possibility of "interfering with the licence in the middle period if it is not going right"—I think those were the words, more or less, he used. But once a licence has been issued, it can be revoked only if the employer is guilty of a serious or persistent breach of a specific condition in the licence. This is not likely to happen.

I turn to the effects of the seven-year limit on investment. It will, of course, have no effect on investment by the licensing authorities themselves, who are likely to be responsible for the major investment effort in the immediate future. But in the case of private employers also, the Government are by no means persuaded that a seven-year limit will significantly inhibit investment. In the first place, an efficient employer who has made a heavy investment in the port is inherently likely to get his licence renewed. Here I should like to make a particular point which was not brought out in our previous discussions. The noble Viscount then laid great emphasis on the two kinds of employers in the docks—the general stevedoring employer, with whom he was not primarily concerned, and the employers—and here I am quoting the noble Viscount's words"— who engaged dock labour for the purpose of working their own cargoes on their own premises". It was the latter group that the noble Viscount argued would sometimes be found to need licences for periods longer than seven years. But it is in relation to this particular group of employers that I should like to draw your Lordships' attention to sub-paragraph (iii) at the top of page 5 of the Bill.

This is part of Clause 4, which lays down the considerations to which licensing authorities are to have regard in deciding whether to grant licences. Subparagraph (iii) requires them specifically to have regard to the possibility of special difficulties being caused to an applicant if he is not allowed to engage in the handling of cargoes for use for the purposes of a business or undertaking carried on by him". This is precisely the category of employer which the noble Viscount, Lord Simon, has in mind, and this provision ensures that such employers will be given special consideration when the initial decisions on licensing are made. But the same provision will apply when such an employer applies for renewal of hislicence. This is important. It is provided for in Clause 10, subsection (2), which has the effect of applying the provision I have mentioned in Clause 4 to applications for renewal of licences as well as to initial applications when licensing is first introduced.

The position, therefore, in relation to employers in this category is that they are not left to take their chance along with all the general employers in the port. They are specially singled out for the licensing authority's consideration. If a licensing authority were to refuse to renew a licence in circumstances where this would cause special difficulties to an employer handling his own cargoes, that employer would have a very strong case for appealing to the Minister to have the decision reversed.

It is perhaps worth pausing here to make the point that in relation to an employer of this kind, a refusal to renew a licence would not of course put him out of business. It would simply mean that his cargoes would have to be handled not by him direct but by a stevedoring employer acting as his agent. The rest of his business would not be affected. We have talked so much about compensation if renewal of a licence were refused that the impression might have been created that such a refusal would put an employer out of business. In the case of the private wharfinger—with whom the noble Viscount, Lord Simon, is I think primarily concerned—it would be only the handling of his cargoes that would be affected. The only risk we are asking an employer of this kind to face is the possibility that the licensing authority, backed up if necessary by the Minister and the National Ports Council, might decide in seven years' time that it was no longer compatible with the efficient working of the port for him to continue to handle his own cargoes, and that they should therefore be handled in future by a stevedoring employer acting as his agent.

It is, I think, important to realise how relatively narrow is the issue between us so far as the private wharfinger is concerned. I remember that the noble Earl, Lord Jellicoe, argued that if the kind of employers to whom I am now referring are going to get their licences renewed anyway, why not give them a licence for a longer period originally? He also suggested in our previous discussions that the possibility that these employers would get their licence renewed was really incompatible with the Government's argument that to allow longer licences would freeze the situation in particular ports. I am afraid I could not accept his arguments. When a licence is first granted, there might well be every reason to suppose that it would be renewed when it expired in, say, seven years. But that is not the same as a completely irrevocable commitment to renew it for a further period. Once the licence comes up for renewal, the licensing authority has a chance to review the situation. Until this happens, the authority is irrevocably committed to the status quo. And while it may seem virtually certain at the time the licence is originally granted that it would in due course be renewed, if it is going to be granted for a period as long as, say, 25 years, the situation may well have changed out of all recognition in that time.

I am sure the noble Viscount, Lord Simon, would be the last person to underrate the fundamental changes in cargo-handling methods which may well come about in the coming years, and the repercussions on the labour situation and the way in which labour deployment is organised for such changes would entail tremendous alterations perhaps in the type of employment that is going to handle it. This is what we really have in mind. We cannot afford to enter a period of such rapid and far-reaching change without retaining the necessary flexibility in the planning and control of the pattern of our cargo handling and employment in the various ports.

When the noble Viscount moved his Amendment at the Committee stage, he said, if I may quote his words: … I do not feel that this involves a matter of principle upon which noble Lords might think it wrong, or at least unwise, to challenge the views of another place".—[OFFICIAL REPORT, Vol. 276 (No. 39), col. 388; 19/7/66.] To that I replied: This is a right which I shall maintain this House has and it is quite proper that those who have the experience noble Lords have should be able to put down Amendments here and ensure a reconsideration of the whole matter even if the Bill has gone through all the processes in the other House". [Col. 400.] I happen to be wearing the hat of the Deputy Leader of this House, and until the Constitution is changed, if it is changed, I shall continue to maintain that right. I have no intention of attempting to subtract a word from what I said on that occasion, but I must add that the Government regard this issue as a matter of principle and would so advise the other place if the noble Viscount's Amendment were inserted in the Bill here.

The Government regard the maximum duration of licences as a basic provision in the whole licensing system, and would feel bound to resist as a matter of principle any extension of the present limit in the Bill. Whether the noble Viscount will feel obliged to press his Amendment in the light of what I have said is, of course, for him to choose—I sincerely hope he will not press it—but I think it is right that I should make the Government's position quite clear. Having looked at the question carefully since our previous discussions, we still feel that the provision in the Bill is right, bearing in mind particularly the special consideration which licensing authorities are required to give to the types of employer we are principally concerned with, which I referred to earlier in my speech.

I doubt whether we are going to be able to see eye to eye on this problem, but I assure the House that as a result of what happened on the Committee stage, the Government have again considered this very fully, and I am asking the noble Viscount to refrain from pressing the matter further. If he does this, and if he will get up and say: "I do not propose, having regard to all these considerations, to press the Amendment", I shall regard this as a very nice birthday present.

LORD POPPLEWELL

My Lords, before my noble friend resumes his seat, I should like to ask him this question. Would it not be permissible for the licensing authority to adopt the same practice as the British Road Services adopt, and enter into contractual undertakings with a particular firm which might require to use the same berth?

LORD CHAMPION

My Lords, I rather fear that my noble friend is trying to lead me a little astray. In view of what I have said, it is clear that the licensing authority must not give to people undertakings outside the provisions of the Bill as they now stand—namely, that they will have a contractual right (I believe those were the noble Lord's words) for anything other than the seven years period which I have previously mentioned.

3.27 p.m.

EARL JELLICOE

My Lords, I rise, perhaps a little belatedly, to say, as the noble Lord, Lord Champion, has said, that this point was argued at length on Second Reading and in Committee. Iargued it at some length myself, and I shall not do so again. In the main, I wish to confine myself to saying two things. First, I find myself in entire agreement with what the noble Viscount, Lord Simon, had to say in moving this Amendment; and secondly, I find myself deeply disappointed by the reply of the noble Lord, Lord Champion.

Given the way in which he said that he would have another look at this, I felt there was hope that on this matter the Government would show some reasonable flexibility. That hope was not only based upon the noble Lord's courtesy, or even upon what can some- times be the rather frail words of a Minister's undertaking to have another look at an Amendment: it was sustained by the fact that the noble Viscount's Amendment had been endorsed by a great weight of opinion inside this House, from almost every quarter, including opinion about as well informed, if not as well informed, as any there is in this country—and that, of course, has been acknowledged by the noble Lord, Lord Champion. But not only was the noble Viscount's Amendment sustained by opinion inside your Lordships' House: it also corresponded with the recommendations of the Rochdale Report; it was very much in line with the latest report of the National Ports Council itself, and certainly not at all out of line with the Devlin Report on decasualisation of labour.

I am sad for two reasons that the noble Lord has felt constrained, or has been constrained, in reply to take the line which he has done. I am sad because of the substance of this matter. In my view, the Government's failure to accept either this Amendment or one along these lines is a blemish on an otherwise good Bill; and it is quite a serious blemish, although, like the noble Viscount, I would not exaggerate, I hope, the importance of the point. I should like to hear what the noble Viscount has to say on the point about the private wharfinger which the noble Lord, Lord Champion, raised.

I should like, in substance, merely to make two comments without going over all the arguments again. The noble Lord said that one had to strike a balance here, and that to accept the noble Viscount's Amendment (I am paraphrasing his remarks) would be weighting the balance in favour of the security of tenure of the private employer. He said words to that effect. But I would remind the noble Lord, Lord Champion, that the Amendment is purely permissive. It is also discriminatory. It would allow the licensing authority to discriminate and, of course, it will depend upon the permission of the National Ports Council. So I do not feel that it would be weighting the balance in the way suggested; it seems to me that it would achieve a balance equally between the interests. Secondly—and this is the only other point of substance I wish to make—I feel that the Government, if they persist in refusing this Amendment, will be erring on the side of rigidity. I recall what my noble friend Lord Erroll of Hale said in speaking on this point in Committee: that when a Bill has become law a Government often regret not having introduced into its provisions some measure of flexibility. I am sure that, if and when this Bill becomes law, the Government may regret not having introduced this very moderate measure of flexibility into these licensing provisions.

That is all I have to say on the point of substance. On the point of procedure, I would be the first to acknowledge the courtesy and thoroughness which the noble Lord, Lord Champion (as one would expect from him) has shown in dealing with this matter, on Second Reading, between Second Reading and Committee, at Committee stage, and now at Report stage. But despite his courtesy, I find it rather disheartening, when all the weight of argument inside your Lordships' House has been deployed in support of the noble Viscount's Amendment, that the Government are still showing rigidity in this matter, and relating it to a point of principle when there is no point of principle involved. Personally, from the House of Lords' point of view, I find that a rather disheartening fact.

This point has not been argued, certainly from this side of the House, as a Party point, and I do not propose to argue it as a Party point this afternoon, I do not know what line or attitude the noble Viscount will be taking in reply. I would advise my noble friends that there is no greater expert on this matter in this House, or in the country, than the noble Viscount, and I, for one, am happy to be guided by his reaction to the noble Lord's reaction to his Amendment. I shall certainly be glad to go into the Lobby with him if he decides to press it, and I hope my noble friends will follow me. But if he decides to let it be negatived, then my advice would be to let it be negatived. If, in his wisdom, he decides that it should be withdrawn, that also would be my advice.

VISCOUNT SIMON

My Lords, like the noble Earl, Lord Jellicoe, I am sorry that the Government have felt it necessary to adopt this very rigid attitude. I am greatly obliged, of course, to the noble Lord, Lord Champion, who, as we expect of him, gave a thorough and reasoned discussion on the Amendment. He called your Lordships' attention in particular to Clause 4(3)(d)(iii), and of course he is perfectly right. There is provision there, and rightly, for special consideration to be given by the licensing authorities to applicants handling their own cargo, who are, perhaps, those I had most in mind in arguing this Amendment.

I am not sure whether the noble Lord's statement (which will be on the Record) that in such circumstances the applicant would have a strong case for appeal if his application were rejected, has the force of law, but it is certainly helpful to people in that position to be able to say what the Minister said when the Bill was going through his House, particularly if they appeal to one of his successors. I think that, in seeking to find the correct point of balance, the Government are wrong. But without the noble Lord having spelt it out so completely, I realised when I came into the House this afternoon that if the Government had made up their minds there was little use one going into the Division Lobby against them. I have no idea whether the Amendment would be carried, for very few Members of your Lordships' House have expressed their views. Even if it were to be carried, I fully anticipate that the Government would rescind it in another place; and I would not be so rash as to think that on a matter of this kind the Members in another place would not be guided by the Government's advice. In all the circumstances, I can give the noble Lord, rather belatedly, this birthday present: that I do not propose to press this Amendment. In fact, I think it would be simplest if I asked your Lordships' permission to withdraw it.

Amendment, by leave, withdrawn.

Clause 8 [Determination of appeals and objections]:

3.38 p.m.

LORD CHAMPION

My Lords, this Amendment corrects a slight inaccuracy in Clause 8(2)(a). That paragraph deals with the Minister's powers and duties in disposing of an appeal or objection, and says that they shall be the same as the powers and duties of the licensing authority in relation to the decision which is appealed against or objected to. But this is not quite wide enough. It is necessary for the Minister to have the same powers and duties as the licensing authority had in relation not only to the authority's original decision but also to the application from the employer. For instance, the licensing authority's power under Clause 3(3) to call for additional information from an applicant for a licence is a power we would want the Minister also to have when he deals with an appeal. But this is a power which relates to the application rather than to the licensing authority's decision, and is therefore not covered by Clause 8(2)(a) as it stands. The Amendment puts matters right by vesting in the Minister all the powers and duties of the licensing authority in connection with the application. I beg to move.

Amendment moved— Page 10, line 11, after ("to") insert ("the application which gave rise to").—(Lord Champion.)

On Question, Amendment agreed to.

Clause 18 [Levy on licensed employers]:

LORD CHAMPION

My Lords, this is a drafting Amendment to tighten up the wording. The phrase "such wages" is a little vague, and the Amendment spells out more precisely what is meant. I beg to move.

Amendment moved— Page 21, line 30, leave out ("such wages") and insert ("gross wages paid by him during that period").—(Lord Champion.)

On Question, Amendment agreed to.

Clause 29 [Default orders]:

LORD CHAMPION

My Lords, this is a drafting Amendment which is designed to bring the wording of subsection (1) of the Clause into line with subsections (2) and (3). It is desirable that the language should be consistent. I beg to move.

Amendment moved— Page 26, line 37, after second ("any") insert ("other").—(Lord Champion.)

On Question, Amendment agreed to.

Clause 36 [Power of harbour authorities to provide inland clearance depots]:

LORD CHAMPION

My Lords, I beg to move Amendment No. 6.

Amendment moved— Page 30, line 7, leave out ("such").—(Lord Champion.)

EARL JELLICOE

My Lords, I am not quite certain whether I am in order but this particular Amendment gives me the chance of asking a question which I asked at Committee stage, which was whether it would be possible for a consortium of harbour authorities to establish such depots. If the noble Lord prefers to postpone an answer to that point I shall be quite happy.

LORD CHAMPION

My Lords, I am happy to be able to reply to the debate on the Amendment! I said on the Committee stage that I thought so, but I would make sure. I can now confirm that the clause will enable a harbour authority to act jointly with other harbour authorities in that way, provided, of course, they have the consent of the Minister of Transport for a depot off harbour land. The fact is that for this purpose—or as I am told is the proper way of putting it—the rationale is that the clause empowers a harbour authority to act together with any other person, and by virtue of Section 19 of the Interpretation Act, 1889, a "person" includes any body of persons corporate or unincorporate, so that I think the position is completely answered on this Amendment.

On Question, Amendment agreed to.

Clause 42 [Further provision as to harbour reorganisation schemes]:

LORD CHAMPION

My Lords, I beg to move the last two Amendments in my name.

Amendment moved—

Page 35, line 11 leave out ("purposes") and insert ("objects").

line 15, leave out ("purposes") and insert ("objects").—(Lord Champion.)

On Question, Amendments agreed to.