England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 November 2002

Mr Justice Newman :

Introduction

1. The Confederation of Passenger Transport UK ("the Confederation") is an organisation representing the majority of, but not all, operators of public service vehicles (PSVs) in the UK. The Humber Bridge Board ("the Board") is a statutory body having the power to administer the Humber Bridge. The Board's powers are contained in two Acts, namely the Humber Bridge Act 1959 and the Humber Bridge Act 1971 (respectively the 1959 Act and the 1971 Act). The Bridge opened to traffic on 24 June 1981.
2. This application for judicial review by the Confederation raises an issue as to whether since l997 the Board has had the power to levy and collect a toll on large buses crossing the bridge. By an agreed amendment to the claim the application relates to the continuing state of affairs so far as the levying and collection of tolls on large buses is concerned, which for reasons which will become apparent in connection with the state of affairs since 2002, gives rise to somewhat different legal considerations from those which arise in connection with the 1997 to 2000 period. As to that period, the application raises an interesting point as to how far the court can supply, by a process of statutory interpretation, words which have been omitted in error by the draftsman of a Statutory Instrument. So far as the 2002 Statutory Instrument is concerned, the question is whether the drafting steps comprised in it, taken to correct the error in the previous Instrument, achieve that end.
3. The legislation

The 1959 Act

The 1959 Act (a private Act of Parliament) provided for the construction and maintenance of a bridge across the river Humber with approach roads. It also constituted a Board and provided for the powers of the Board. Part 5 of the Act is headed "Tolls". Section 61(1) provides:

"(1) From and after the opening of the bridge for public traffic the Board may demand take and recover in respect of all traffic passing over or on the bridge tolls not exceeding those specified in an order (in this section referred to as "the order" made by the Board and confirmed by the Minister in accordance with this section and for any other services rendered by the Board in connection with the bridge such reasonable charges as they may think fit;

Provided that –

(a) the Board may by resolution if and when they think fit –

(i) cease to demand take and recover tolls in respect of traffic or certain classes of traffic passing over or on the bridge; and

(ii) resume demanding taking and recovering such tolls;

(b) the Board may also (if and when they think fit) allow traffic to use the bridge without paying tolls during such hours or on such occasions as they may from time to time determine.

(2) The order when made by the Board shall be submitted to the Minister for confirmation and shall be confirmed by the Minister with or without modification not more than twelve months nor less than six months before the expected opening of the bridge for public traffic.

(3) After submitting the order to the Minister for confirmation the Board shall furnish the Minister with such information and particulars certified in such manner as the Minister may require and shall publish in the London Gazette and in such newspapers as the Minister may require a notice stating –

(a) the general effect of the order; and

(b) that within a period of forty-two days from the date of the first publication of the notice any person having a substantial interest may object to the order by giving notice to the Minister accompanied by the grounds of his objection and sending a copy thereof to the Board.

(4) Before confirming the order the Minister shall if required by the Board or by any person who has objected to the order and has not withdrawn his objection and in any other case if he thinks fit cause a local inquiry to be held by such person as he may appoint for the purpose.

(5) In confirming the order with or without modification the Minister shall have regard to the financial position and future prospects of the undertaking and the order shall prescribe such maximum tolls as in the Minister's opinion shall not exceed by more than is reasonable the tolls estimated to be required to be demanded taken and recovered when the bridge is first opened for public traffic to produce an annual revenue not substantially less nor substantially more than adequate to meet such expenditure as is authorised for the several purposes mentioned in section 75 (Application of revenue) of this Act.

(6) The power of the Minister to confirm the order shall be exercisable by statutory instrument.

4. Section 63 provides:

A list of the tolls by this Act authorised to be demanded and taken and which shall from time to time be charged by the Board shall at all times be exhibited in a conspicuous place at or near the places where such tolls shall be payable.

Section 65:

If the tolls payable by any person desirous of using the bridge be demanded from him before using the same and such person shall after demand from him of such tolls (such demand being made by any collector or other person appointed to receive the same) knowingly and wilfully refuse or neglect to ay the same or any part thereof the collector or other person so appointed my refuse to permit the person so in default to use the bridge and may by himself or with such assistance as he shall think necessary stop and prevent the person so in default from using the same.

Section 68 provides, in detail, for exemptions from toll.

5. The following particular points can be made in connection with the above sections and the power of the Board to levy a toll. The power conferred is an originating power which gives rise to a duty on the Minister to consider confirmation or modification of the order made by the Board. The power to levy is contingent upon confirmation being given by the Minister. The power is expressed in terms which contemplate the Board recovering a toll "in respect of all traffic passing over or on the bridge". The Act can be taken to contemplate that, where revenue is required for the purposes set out in section 75 (application of revenue), all traffic will be charged where it is reasonable to do so or a specific power is exercised not to do so, or the traffic is exempt. The Act envisages that there will be classes of traffic specified in the order. Thus the proviso at section 61(1)(a)(i) contemplates that where the Board has the power to demand a toll, the toll having been confirmed by the Minister, the Board may by resolution cease to demand and recover the toll which may be in respect of "traffic, or certain classes of traffic passing over or on the bridge. Section 75 of the Act imposes an obligation on the Board to apply its revenue in the manner therein specified, laying down the order of priority for its application. Priorities l to 8 comprise the working and establishment expenses and costs of the undertaking, interest on borrowed money and so forth. Ninthly, the section provides:

"Ninthly, in a reduction of tolls which may be demanded taken and recovered under this Act or for such other purpose as may be approved by the Minister; ….

6. It follows that for the exercise of the power to levy tolls, both by the Board and the Minister, to be lawful, it must be exercised reasonably and for the purposes specified in the Act. Subject to the power by resolution to cease to demand to take a toll which can be lawfully demanded, and subject to the exemptions from tolls which are set out in Section 68, the 1959 Act contemplates that the purpose in levying tolls is to raise the revenue necessary for the purposes of the undertaking and in a manner which the Minister regards as reasonable.

   The 1971 Act

7. No order was made by the Board until l979. No order was necessary since the bridge was not open for traffic until June l98l. The l959 Act, whilst it provided for an order to be made by the Board, contained no provisions for revision thereafter, although the words in Section 61(1) were plainly wide enough to empower the Board to continue to demand tolls confirmed by the Minister. Amongst other reasons, the l97l Act was passed to provide for revisions. It amended the Humber Bridge Act l959 and conferred other powers on the Board. Section l0 of the l97l Act provided:

(1)If at any time –

(a) it is represented in writing to the Secretary of State –

(i) by any person or body representative of persons appearing to the Secretary of State to have a substantial interest in the use of the bridge; or

(ii) by the Board; or

(b)it appears to the Secretary of State after consultation with the Board to be expedient;

that in the circumstances then existing or in prospect (including the opening to public traffic of the bridge) all or any of the tolls authorised in pursuance of the Humber Bridge Acts or any classification of vehicles specified in any order for the time being in force under those Acts should be revised, the Secretary of State may, if he thinks fit make an order revising all or any of such tolls or any classification of vehicles as aforesaid and may fix the date as from which such order shall take effect and thenceforth such order shall be observed until the same expires or is revoked or modified by a further order of the Secretary of State made in pursuance of this section:

Provided that the Secretary of State shall not make an order pursuant to paragraph (b) of this subsection at any time except when the Board have borrowed money from the Secretary of State under section 5 (Borrowing from Secretary of State) of this Act and have not repaid the whole of the money so borrowed.

(2) As soon as may be after the receipt by the Secretary of State of a representation pursuant to subsection (1) of this section from any person or any body other than the Board the Secretary of State shall send a copy of the representation to the Board.

(3) Before making an order under this section the Secretary of State shall if required by –

(a) any such person or body as is referred to in sub-paragraph (i) of paragraph (a) of subsection (1) of this section, being a person or body who either has made a representation to the Secretary of State pursuant to that subsection or has pursuant to section 11 (Further provisions as to revision of tolls) of this Act objected to the representation made to, or the proposals of, the Secretary of State and has not withdrawn the objection; or

(b) the Board;

and may in any other case, if he thinks fit, cause a local inquiry to be held by such person as he may appoint for the purpose.

(4) In the exercise of the powers conferred upon him by this section, the Secretary of State shall have regard to the financial position and future prospects of the undertaking and any order made by him under this section shall prescribe such tolls as in the opinion of the Secretary of State are reasonably required to be demanded, taken and recovered so as to produce an annual revenue not substantially less, nor substantially more, than is adequate to meet such expenditure as is authorised for the purposes of the first eight purposes mentioned in section 75 Application of revenue) of the Act of 1959, as amended by this Act.

(5) ……

Section ll of the l97l Act provided for representations, objections and a public inquiry.

THE STATUTORY INSTRUMENTS

Statutory Instrument 1980 No.1137 ("The Humber Bridge Tolls Order 1979 Confirmation Instrument 1980)

8. This Instrument (the l980 Instrument) confirmed the Board's 1979 order. The order schedule D the various classes of traffic to which a toll is to apply (column 1) and in a column (column 2) marked "Maximum toll" the toll to be applied to the vehicles as classified. Confirmation was provided empowering the Board to " … demand, take and recover in respect of traffic passing over or on the bridge … tolls not exceeding those specified in column 2 of the Schedule to this Order in relation to the particular classes of traffic specified in column l of that Schedule".

Column l listed as a class:

"Heavy commercial vehicles (over 3 tons): "Class A (2 axle) Class B (3 axle) Class C (4 or more axle)".

As another class:

"Mini-buses with a seating capacity of more than 8 but not more than l6 passengers."

As another class:

"Buses and coaches with a seating capacity of 17 and over."

Statutory Instrument 1989 No. 1353 (The Humber Bridge (Revision of Tolls and Vehicle Classification Order 1989

9. The Instrument records that the Board, pursuant to its power so to do under section 10(1) of the 1971 Act, had represented that tolls should be revised and as a result the Secretary of State ordered:

"2. From and after the coming into force of this Order –

(i) for the purposes of the tolls authorised in pursuance of the Humber Bridge Act 1959 and 1971, vehicles shall be classified in accordance with the classes specified in items l to 6 and 8 in column (1) of the scale of charges set out in the Schedule to this Order; and

(ii) the tolls which the Humber Bridge Board may demand, take and recover in respect of traffic passing over or on the bridge shall be tolls not exceeding those specified in column (2) of the scale of charges set out in that Schedule respectively in relation to each class of traffic specified in column (1) of that scale.

3. The Humber Bridge Tolls Order 1979 Confirmation Instrument is hereby revoked."

10. The Schedule to this Instrument differed from the l980 Instrument. It contained a definition paragraph providing that:

""bus", "small bus" and "large bus" have the same meanings as in section 19 of the Transport Act 1985;

"car" means a mechanically propelled vehicle (not being a motor cycle or a bus) which is constructed solely for the carriage of two or more persons and their effects;

"goods vehicle" means a mechanically propelled vehicle constructed or adapted for use for the carriage of goods or burden of any description;"

Goods vehicles were classified according to weight as:

""3. Goods vehicle having a maximum weight exceeding 3.5 tonnes but not exceeding 7.5 tonnes …" and "Small bus …" was placed in this class.

Class 4 was stated to be:

"Goods vehicle having a maximum weight exceeding 7.5 tonnes with 2 axles" and "Large bus" was placed in this class.

11. Goods vehicles having 3 axles and exceeding 7.5 tonnes or 4 axles or more were separately classed. No description of bus fell within (5) or (6).

Statutory Instrument l997 No.1950 (The Humber Bridge (Revision of Tolls and Vehicle Classification Order l997)

12. This Instrument emanated from the Board's representations that the toll should be revised. The body of the Instrument followed the wording of the l989 Instrument and the Schedule contained a definition of "bus, small bus, large bus" in identical terms to that which had previously appeared. The definition of "goods vehicle" and "maximum weight" were as they had been previously. The scale of charges did not follow the wording adopted in the l989 Instrument. Class 3 (as before) included "Small bus (up to l6 passengers excluding the driver)" in the same classification as a goods vehicle having a maximum weight exceeding 3.5 tonnes but not exceeding 7.5 tonnes, but whereas "Goods vehicle exceeding 7.5 tonnes maximum weight with 2 axles" (class 4) had previously appeared in the same category with "large bus", "large bus" was not included in this class or any class specified in the l997 Instrument. The only reference to "large bus" was in the definition paragraph. Nevertheless the explanatory note stated:

"(c). The toll for good (sic) vehicles over 7.5 tonnes maximum weight with 2 axles and buses and coaches with l7 or more seats is increased from £6.50 to £9.20."

Statutory Instrument 2000 No. 264 (The Humber Bridge (Revision of Tolls and Vehicle Classification) Order 2000)

13. This Order included a definition of "large bus" in the same terms as the l997 Order and it classified traffic in precisely the same way as the l997 Order but increased the maximum toll in respect of each classification. The explanatory note was also in precisely the same terms.

Statutory Instrument 2002 No.786 (The Humber Bridge (Revision of Tolls) Order 2002

14. The Schedule to the Order defines "bus" and "small bus" but does not define "large bus". "Goods vehicle" is defined as before, namely "a mechanically propelled vehicle constructed or adapted for use for the carriage of goods or burden of any description". "Maximum weight" receives the same definition as in the previous orders and the scale of charges follows the previous classification, namely "Goods vehicle exceeding 7.5 maximum weight with 2 axles", "goods vehicle exceeding 7.5 tonnes maximum weight with 3 axles", "goods vehicle exceeding 7.5 tonnes weight with 4 or more axles". The explanatory note to the Order makes a reference to small buses in these terms:

"The toll for goods vehicles over 3.5 and up to 7.5 tonnes maximum weight and for small buses (up to l6 passengers excluding the driver) is increased from £4.30 to £4.50."

It is plain from this Order that the draftsman deliberately left out "large bus" from the definition in the Schedule and there is no mention of "large bus" at all. If a large bus, namely a bus having l7 people or more is to fall within any category or classification under the Order, it must be as a goods vehicle. It will do so if it can be said to be a mechanically propelled vehicle constructed or adapted for use for the carriage of a "burden" of some description. According to whether a bus has 2 axles, 3 axles or 4 axles, it will be charged accordingly.

The background facts

15. Pursuant to the provisions of the Humber Bridge Acts, public enquiries were held prior to the l980, l989, l997 and 2002 Orders. There was no public enquiry prior to the 2000 Order. The l980 Order was signed by the Minister of Transport on 30 July l980. An Inspector (Mr Holden) had held a public enquiry between ll and l4 March l980. The Inspector's report at paragraph 252 records as follows:

The Order proposes that buses and coaches of whatever size, other than mini-buses, should pay the same toll as goods vehicles over 3 tonnes with 2 axles. If tolls are to be charged, I see no reason why they should not be levied on all vehicles. In my view the toll on a bus is a much part of the operator's running costs as his licence fee or his fuel. Whether the toll should be passed on to the passengers using the service affected or treated as part of the operator's overall costs is a matter for him."

The Board's Order was recommended by the Inspector to the Minister for approval, subject only to drafting changes which the Minister adopted. They were explained by the Inspector in this way at paragraph 180 of his report:

"To remove any doubt about the meaning of the various categories of vehicle mentioned in the Order, the Board asked that the descriptions in the Order be modified as follows:

(a) ….

(b) ….

(c)….

(d) ….

(e) after mini-buses add "with seating capacity of 7 to l6 passengers inclusive"

(f) after buses and coaches add "with a seating capacity of l7 and over".

16. The 1989 Order contained a change in the relevant classes touching this case in respect of which the Inspector at paragraph 91 of his report stated:

"The opportunity has been taken to seek to amend vehicle classifications in the proposed new tolls Order in order to make the terminology consistent with vehicle descriptions currently found in other legislation. This was a reference to the classification by way of maximum weight but it is apparent from the Board's proposals and the Inspector's report that so far as buses were concerned they were to be classified according to their capacity to carry passengers. Again, mini-buses were described as having a seating capacity of more than 8 but not more than 16 and buses and coaches with a seating capacity of l7 and over were in a separate category, although not called "large bus" in the report, plainly referring to large bus."

17. At the enquiry held in l996 prior to the 1997 Order, the Inspector received a representation for a re-creation of a new class of bus, called a "midi-bus" which could be established for the 17 to 35 seat vehicle and a toll to be charged for somewhere between classes 3, the mini-bus, and 4, the large bus. The Inspector concluded,

"I am not persuaded that there is any justification for creating a new class of midi-bus, between class 3 and 4. In all classes there will be vehicles on the borderline and a claim could be made for a reduced rate for them. The present classes fit national legislation and there is certainty and practicality in retaining the recognised classes. I had no breakdown of the number of vehicle journeys that would fall into the midi-bus category and I have to have regard to the overriding need to increase income."

The Secretary of State issued a Decision Letter dated 6 August 1997, having received the report and in paragraph 2 stated:

"The tolls charged and proposed to be charged at the bridge are as follows:

There then followed the classes, and in class 4 the following appeared:

"Goods vehicle exceeding 7.5 tonnes maximum weight with 2 axles

Large bus (l7 or more passengers excluding driver)"

In paragraph 9 of that Decision Letter the following appeared:

"The Secretary of State has decided to make the enclosed Order to implement the Inspector's recommendation on the maximum tolls that should be set. Copies of the Inspector's report and this letter are being sent to all objectors."

It will be obvious that, despite the expressed intention of the Secretary of State to implement the Inspector's recommendations, which included "large bus" within class 4, the l997 Order did not do so.

18. The Decision Letter in connection with the 2000 Order dated 8 February 2000 stated as follows:

"2. Although there are no formal objections outstanding the bus operators who withdrew their objections asked the Secretary of State to give careful consideration to their representations about bus tolls. The Secretary of State has therefore determined your toll application without a public enquiry held but, in doing so, has given careful consideration to the representations of the bus operators.

3. The tolls charged and proposed to be charged at the bridge are as follows:"

There then followed a box containing classes of vehicles. In the category with goods vehicle over 3.5 but under 7.5 tonnes "small bus" (up to l6 passengers excluding driver) appeared. In the next category goods vehicle over 7.5 tonnes, 2 axles, included "large bus" (l7 or more passengers excluding driver). Paragraph 8 of that letter concluded:

"The Secretary of State has decided to make the enclosed order to implement the Inspector's recommendation on the maximum tolls to be set and I am sending a copy of this letter to the Lincolnshire Red Car Company and East Yorkshire Motor Services."

Yet again, the Secretary of State's intention to include in the order, classifications, descriptions and tolls as they appeared in the proposals of the Board was not implemented. At the public enquiry held on 19 December 200l, for the first time, submissions were made by the Confederation of Passenger Transport, East Midlands Region, to the effect that the levying of tolls on large buses was ultra vires because the 2000 Order, and perhaps earlier toll confirmation orders, did not specify large buses as a class of traffic subject to toll. The Inspector (Mr Tipping) noted that an application for leave to move for judicial review was in the course of preparation. Further, it was submitted to the Inspector that since the advertisement did not refer to large buses, operators of such vehicles might have been misled into believing they had no interest in the proposals in the public enquiry and thus had not exercised their right to object or to make representations. In those circumstances the Inspector was asked to adjourn the enquiry. The Inspector concluded as follows:

"2.4 The submission relating to the lawfulness of the levying of tolls on large buses is not a matter for me. As to the adjournment application, this was not renewed at the enquiry and, indeed, was expressly withdrawn by the representative of the objector on whose behalf the application had been made.

2.5 I nevertheless considered carefully whether failing to adjourn the enquiry might prejudice operators of large buses who had not objected to the Board's proposal. Whether lawfully or not, these vehicles have been subject to a toll for using the bridge since its inception, a period of some 20 years. In these circumstances, it was not credible, in my view, that operators of such vehicles would not have been alerted by the advertisement of the Board's proposal to the fact that their interests were in issue in the proposal and therefore at the enquiry. I was reinforced in this conclusion by the fact that 6 of the 7 objections to the proposal were made by bus and/or coach operators. I concluded accordingly that it was neither desirable nor necessary to adjourn the enquiry."

19. The Inspector had received objections in relation to the charges for PSVs (including buses) and he concluded as follows:

"6.7 I deal first with the objection relating to all PSVs, including but not therefore restricted to scheduled local bus services. I have considered the claim that the fact that coaches and buses carry human cargo distinguishes them in some way from other commercial vehicles. I am unable to accept this argument. A decision whether to use the bridge in the course of a journey carrying passengers on a day trip to Scarborough or Whitby seems to me no different in character from a decision in relation to a goods vehicle of the same weight (and therefore in the same toll class) carrying vegetables across the bridge to Hull. The toll payable for the use of the bridge is an alternative to the cost, including wages, fuel and vehicle wear and tear, or the longer drive to the next available crossing of the Humber to the west …"

20. The Secretary of State issued a Decision Letter dated 25 March 2002. Class 4 was limited to goods vehicle exceeding 7.5 tonnes maximum weight with 2 axles and so far as the lawfulness of charging for large buses was concerned the letter stated this:

"One of the bodies who made representations to the application, that is the Confederation of Passenger Transport, East Midlands Region) has submitted its intention to challenge the lawfulness of charging large buses at the undertaking. The Inspector, quite correctly, concluded that this was not a matter for him. The Secretary of State believes that, whilst this may be a matter for him, it should be dealt with separately from the proposed application."

He therefore made the Order in the terms which I have already described.

Submissions

21. Miss Laing, for the Confederation submitted that it was a general principle of public law that a public body may not levy charges from the public unless it has an express statutory power to do so. She submitted that it was for the Board to show a distinct and legal authority to levy a particular charge. She submitted that this being delegated legislation did not affect the principles which have to be applied. In particular, she submitted, so far as the l997 and 2000 Orders are concerned, there was no basis upon which the court could step in and fill the gap which the draftsman had left by the omission of the two words, "large bus". She drew the court's attention to the speech of Lord Diplock in Jones v Wrotham Park Estates 1980 AC 74,105. In that case the House of Lords were having to consider whether an unusual intermediate lease between a landlord and a tenant fell outside the ambit of the Leasehold Reform Act l967 so as to prevent acquisition of the freehold by a tenant. Lord Diplock stated:

"My Lords, I am not reluctant to adopt a purposive constructive where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purpose of the Act. In doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Cannings Ballroom Co Ltd v Zenith Investments (Torquay) Ltd 1971 AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was and it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts."

22. As far as the general principle in connection with charges and levies, Miss Laing relied upon the speech of Lord Lowry in R v Richmond Upon Thames London Borough Council ex parte McCarthy & Stone Developments Limited [1992] 2 AC 48. Lord Lowry cited two passages from Gosling v Veley (1850) 12 QB, 328,407, the other from Attorney General v Wilts United Dairies Limited (1921) 37 Times Law Report 884 at 885. In Wilts Dairies case Atkin LJ stated:

" … if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms, that Parliament has authorised the particular charge… The circumstances would be remarkable indeed which would induce the court to believe that the legislature had sacrificed all the well known checks and precautions, and not, in express words, but merely by implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for purposes connected with his Department."

Lord Lowry concluded in that case that the power to charge a fee for the relevant service, namely a charge levied upon developers for enquiries related to speculative development or redevelopment proposals, was one which if it existed had to be found in section lll(1) of the Local Government Act 1972 either expressly or by necessary implication. Lord Lowry stated:

"My lords, I come back to section lll(1), the relevant provision. The council admits that it cannot without express authority charge for "a duty function", but it still has to say that the ability to charge for pre-application advice is based on "the power to do anything" which is "incidental" … to the discharge of any of [the council's] functions."

To charge for performing a function (subject always to Wednesbury considerations, which do not arise here) must always be incidental to the provision of the service provided. Therefore the council's interpretation of section 111(1) would allow it to charge for the performance of every function, both obligatory and discretionary, which provided a service…. Such a construction in the subsection cannot be justified, and I say this before even considering the point that, in the absence of expressed statutory authority, the power to charge can only be implied in the words of Atkins LJ in Attorney General v Wilts United Dairies Limited 37 TLR 884,886, "as necessarily arising from the words of a statute."

23. Miss Patterson QC, who appeared for the Board, did not dispute the general principle of public law relied upon by Miss Laing. She submitted that the Act conferred upon the Board an express statutory power to levy tolls, (see section 61(1) of the l969 Act. It was not in point to consider the general principle of public law where it was plain that Parliament had intended that the Board should have a power to levy a toll on all traffic crossing the Humber Bridge. Miss Patterson submitted that the court should approach the l997 and 2000 Orders applying the principle underlying the House of Lords decision in Inco Europe Limited and others v First Choice Distribution 2000 1 WLR 586. In that case the House of Lords had to decide whether an appeal lay to the Court of Appeal from a decision made, at first instance, under section 9 of the Arbitration Act l996. Section 18 of the Supreme Court Act l98l as amended by section l07 and paragraph 37(2) of schedule 3 to the l996 Act provided a saving, but the saving did not apply and section 9 itself was silent. Lord Nicholls, with whose speech the other lords agreed, pointed out that read literally the provisions gave rise to an argument which was unanswerable. But he concluded that it was clear beyond a peradventure that "Homer, in the person of the draftsman of schedule 3 to the Act of l996, nodded". Having examined the legislation and the history of the legislation, he stated:

"I freely acknowledge that this interpretation of section l8(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function, the court will add words, or omit words, or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3^rd ed (1995) pp 93-105. He comments at p.103:

"In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislator, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."

This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this was the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily of the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise an attempt to determine the meaning of the enactment would cross the boundary between construction and legislation; see per Lord Diplock in Jones v Wrotham Park Settled Estates 1980 AC 74, 105-106. In the present case these three conditions are fulfilled."

Conclusions

The 1997 and 2000 Orders

24. It was common ground that the two words "large bus" have been omitted from the two Orders was because the draftsman had slipped up. It is clear from the terms of the two Decision Letters that the Minister intended to confirm the Board's exercise of power and to make large buses liable to pay the toll specified in class 4. It is obvious from the inclusion of a definition of "large bus" in the Instrument that "large bus" was envisaged as a category or class. The Explanatory Note is not a legitimate aid to the interpretation of the Instrument, but this being delegated legislation at the hand of the Minister, which is not required to be laid before Parliament, it seems to me that the court commits no impropriety in having regard to the plain intention of the maker of the Instrument, and the content of the Instrument, which confirms the intention but nevertheless by omission, fails to fully implement it. There being a general power contained in section 61(1) of the l959 Act, reaffirmed as a continuing power for revisions to take place pursuant to section 10 of the l97l Act, notwithstanding that the power is an inchoate power until confirmed by the Minister, there can, in my judgment, be no basis for concluding that the court would be stepping outside its constitutional role by rectifying the omissions so as to include large buses as traffic liable to a levy. Since the omission of "large bus" from class 4 in the two Orders is to be regarded as an omission, there is no rational basis for concluding that there being a power to charge all traffic passing over the bridge, "large bus" should be treated by the court as exempt. In my judgment the Board's intention to classify "large bus" as being liable to a toll is sufficiently plain from the general power in section 61(1), the orders drawn by the Board to include it, the respective Decision Letters of the Secretary of State to confirm them as laid before him, and the inclusion in the definition section of the Instruments of "large bus". I thus have no doubt as to the first of the three matters referred to by Lord Nicholls, namely the intended purpose of the statute or provision in question. I have no doubt as to the second, that it arose by inadvertence on the part of the draftsman, and as to the third, there is no difficulty in concluding upon the precise words which would have been used by the draftsman (in effect by the Secretary of State), because he had used them in his Decision Letters, namely "large bus". In my judgment the court should exercise its powers to correct the obvious drafting errors in the two Orders so as to regard the two words "large bus" as being included in class 4 of the classification in the scale of charges in each of those Instruments.

The 2002 Order

25. Having regard to the terms of the Decision Letter in relation to the 2002 Order, it is manifest the Secretary of State was aware of the ultra vires argument which is now before the court. As an Interested Party in these proceedings he has made no submissions and has not been represented. Since the l971 Act gave rise to rights for objections and representations to be made, I was initially concerned whether confusion could have been generated by the previous errors and the proposed terms of the 2002 Order and thus given rise to a denial of rights in those having the right to be heard. However, having considered the matter I am satisfied the conclusions reached by the Inspector in this regard must be right.
26. The case for the power to levy a toll on large buses according to whether they have 2, 3 or more axles, depends solely upon the definition of "goods vehicle" in the 2002 Order. The definition has a long history in transport legislation and is thus not specifically devised to embrace buses. The converse appears to be the case; as a definition of goods vehicle it appears in legislation where buses are specifically categorised. A driver of a goods vehicle requires a Heavy Goods Vehicle (HGV) licence. A driver of a bus requires a Public Service Vehicle (PSV) licence. Despite the ease with which the Secretary of State could have covered past error or omission by including "large bus" in each of the categories 4, 5 and 6, as the court has done in connection with the l997 and 2000 Orders, he did not do so in 2002. The drafting must be regarded as deliberate, without error. What one can discern is that, in the light of the earlier drafting, it was intended that the classification of "bus" and "small bus" should have specific relevance to the 2002 Order. It can be discerned by reason of the amendment to exclude the words "large bus" from the definition section, that it was intended that it should not be regarded as a category on its own. The simple question which arises, therefore, is whether a bus carrying passengers falls, within the definition of a mechanically propelled vehicle carrying "burden of any description". Although the definition of goods vehicle which has been employed may have a long established history, it seems to me that the words "burden of any description" must be given the broad meaning which the word "any" itself suggests. Having regard to the clear purpose behind the Board having the power to levy a toll on all traffic passing over the bridge, where words are used which are according to their ordinary meaning (as opposed to prior statutory use) wide enough to embrace a "large bus" it seems to me effect should be given to the underlying intention and purpose of this legislation. To describe passengers as "burden of any description" may have an antiquated ring about it, but passengers can be regarded as burden in this context because they create a weight which the vehicle has to carry. Further, since the class is capable of being defined by the weight of the vehicle and the number of axles, a classification by reference to the number of persons carried or particular "burden" would be otiose. There is in my judgment no strain to the language used to include "large bus" within the definition of goods vehicle. I have concluded that the Order as drawn and made includes large buses within each of the categories, class 4, 5 and 6, according to how many axles a bus has.
27. For all these reasons this application for judicial review fails.

Friday 1st November 2002

MR JUSTICE NEWMAN: For the reasons given in a judgment, which I hand down, this application for judicial review fails.

MISS LAING: My Lord, I do have an application, as perhaps your Lordship may have anticipated, for permission to appeal. No doubt your Lordship is familiar with the test, which is set out at order 52 rule 3.6, in other words, that the court considers the appeal would have a real prospect of success or there is some other compelling reason for giving permission. My submission would be that in relation to three points in your Lordship's judgment both those criteria are satisfied. Clearly I do not want to bore your Lordship --

MR JUSTICE NEWMAN: You would not bore me, I would be delighted to be told I am wrong.

MISS LAING: But if I can just summarise very briefly what I say those three points are. The first point relates to the last statutory instrument, that is the 2002 order, in relation to which your Lordship has held that a large bus is capable of falling within the definition of goods vehicle, and for the reasons basically which I have asked your Lordship in argument, I would respectfully submit that in this legislative context, in other words a transport context, where Parliament has shown right back to the 1930s that there is a distinction between the classes, a distinction which rests on the very wording in the statutory instrument, I would submit that at the very least it is arguable that your Lordship may have erred in that respect. I would also submit that it is a point of wider importance than just this case because if there is an overlap or confusion between those two distinct legal categories, that clearly has ramifications which go beyond this case. That is the last of the three statutory instruments.

If I can move on to the first two statutory instruments which, as your Lordship will recall, raise identical points. My first point in relation to those is that your Lordship has applied a principle of statutory construction to those statutory instruments which comes from what I submit is a very different context, and neither of us was able to find a case where that principle had been applied in the context of a charge imposed on the subject. I would submit in that respect it is an extension principle. I would also submit again that it is arguable that your Lordship has erred in that respect and that it is a point of wider public importance than the facts of this case.

My Lord, the second point which arises in relation to the first two statutory instruments is what materials are admissible to construe a statutory instrument. Here really one is examining the difference between the objective intention of the draftsmen, which on traditional principles is to be gathered from the language of the instrument itself, and that is a principle that applies to statutes and to contracts, as opposed to the subjective intention of the maker of the instrument, which your Lordship has held may be gathered from other materials, and in particular the decision letter.

As your Lordship knows, Pepper v Hart, which applies to statutes, is, as it were, an erosion of the principle that one does not look at subjective intention, but as the House of Lords made clear in Pepper v Hart, it is a principle which carries this protection, namely that the materials in Hansard, which it is legitimate to look at, are widely publicly available. Now, there is a very important distinction here, in my submission, which is that the decision of the Secretary of State is not a publicly available document, unlike decision letters in planning matters it does not go on the public register, so effectively, in my submission, the consequence of your Lordship's decision on this point is that it is legitimate to construe a statutory instrument by reference to materials which are not readily available to the public. That, in my submission, is an important extension of the principles which are normally applied, and for similar reasons to those advanced in relation to the other points I would submit that it makes it a point on which permission should be granted.

I do not know if I can assist your Lordship further on any of those three points.

MR JUSTICE NEWMAN: No, you have been very, very clear about it. Thank you very much. Mr Whale?

MR WHALE: My Lord, we do resist that application, and in my submission none of the three grounds meet the appropriate test. What I would just do, if I may, is remind you of your words in paragraph 24 of your judgment where you applied the judgment of Lord Nicholls, and in relation to each of the three tests put forward by Lord Nicholls you decided that you would have no doubt as to the first, no doubt as to the second, and that there was no difficulty in relation to the third, and in that context we do resist this application.

MR JUSTICE NEWMAN: Yes. What do you say about the 2002 order?

MR WHALE: What we say about that is that neither that has any real prospect of success neither any compelling reason to grant this application. Those are the appropriate tests.

MR JUSTICE NEWMAN: Yes. Thank you very much indeed.

Miss Laing, you put the matter with such clarity and force that you very nearly persuaded me that this was a case in which I should grant permission, but I do think you ought to take your chance with the Court of Appeal. I do not think that either of the tests is satisfied despite your arguments. Thank you very much.

MR WHALE: My Lord, we would like to apply for our costs in this matter.

MISS LAING: My Lord, I cannot resist that application.

MR JUSTICE NEWMAN: Thank you very much.

MR WHALE: Will that go off to detailed assessment, my Lord?

MR JUSTICE NEWMAN: It will have to, will it not? I cannot do anything about it today unless you have some figure. I cannot remember how long we took on the case. Did we take a day or half a day?

MISS LAING: My Lord, it finished in a day, we had a slightly late start and we finished within the day.

MR JUSTICE NEWMAN: What would you like me to do about it? I will help the parties. If you have a figure and you want to discuss it, but I do not have any of the detailed costs. I am not in a position to assess at all, am I?

MISS LAING: My Lord, I think your Lordship does have the schedules, but my application certainly would be for it to go off for a detailed assessment. Those are my instructions.

MR JUSTICE NEWMAN: I think we ought to. I do not think I can try and grapple with that today.

MR WHALE: I am grateful.

MR JUSTICE NEWMAN: Thank you very much.