“(4) The power of the Secretary of State to make an Order under the said section 10 shall be exercisable by statutory instrument and the Secretary of State may by any Order made by him under the said section 10 amend, vary or revoke any of the provisions of any Order made by him under section 61 (Tolls) of the Act of 1959 or under the said section 10.”
“1.The Humber Bridge Tolls Order 1979 , which is an order made by the Humber Bridge Board in exercise of their powers under the said Section 61, prescribing the tolls which the Humber Bridge Board may, from and after the opening of the Humber Bridge for public traffic, demand, take and recover in respect of traffic passing over or on the bridge is confirmed subject to modifications. 2. The said Order (so modified) is set out in the Schedule hereto.”
“1. This Order may be cited as theHumber Bridge Tolls Order 1979 . 2. The tolls which the Humber Bridge Board may, from and after the opening of the Humber Bridge for public traffic, 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 Schedule to this Order in relation to the particular classes of traffic specified in column 1 of that Schedule.”
“(1) Class of Traffic (2) Maximum Toll Heavy commercial vehicles (over 3 tons): Class A (2 axle) Class B (3 axle) Class C (4 or more axles) Mini-buses with a seating capacity of more than 8 but not more than 16 passengers Buses and coaches with a seating capacity of 17 and over£5.20 £6.60 £8.00 £2.90 £5.20 ”
“2. From and after the coming into force of this Order (i) for the purpose of the tolls authorised in pursuance of the Humber Bridge Acts 1959 and 1971, vehicles shall be classified in accordance with the classes specified in items 1 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.” (i) for the purpose of the tolls authorised in pursuance of the Humber Bridge Acts 1959 and 1971, vehicles shall be classified in accordance with the classes specified in items 1 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.”
“bus”, “small bus” and “large bus” have the same meanings as insection 19 of the Transport Act 1985 .”
“(1) Class of Traffic (2) Maximum Toll 1. Motor cycle with or without sidecar 2. Car Goods vehicle having a maximum weight exceeding 3.5 tonnes 3. Goods vehicle having a maximum weight exceeding 3.5 tonnes but not exceeding 7.5 tonnes Vehicle within class 2 above with trailer Small bus Motor caravan 4. Goods vehicle having a maximum weight exceeding 7.5 tonnes with 2 axles Large bus 5. Goods vehicle having a maximum weight exceeding 7.5 tonnes with 3 axles 6. Goods vehicle having a maximum weight exceeding 7.5 tonnes with 4 or more axles 7. Pedestrian 8. Pedal cycle 70p£1.60 £2.90 £6.50 £8.70 £10.90 Nil Nil”
“From and after the coming into force of this Order for the purposes of the tolls authorised in pursuance of the Humber Bridge Acts 1959 and 1971, 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 the Schedule to this Order with respect to each class of traffic specified in column (1) of that scale.”
“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 as 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.”
“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: … (e) after mini-buses add “with seating capacity of 7 to 16 passengers inclusive”; (f) after buses and coaches add “with a seating capacity of 17 and over”.”
“The opportunity has now been taken to seek to amend vehicle classifications in the proposed new tolls Order in order to make the terminology consistent with vehicles descriptions currently found in other legislation.”
“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 over-riding need to increase income.”
“My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language 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. Kammins Ballroom Co Ltd v ZenithInvestments (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.”
“I freely acknowledge that this interpretation of section 18(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, 3rd 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 intention of the drafter or the legislature, 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.”
“Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provisions in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler[1977] Ch 1 , 18, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case. Here the court is able to give a construction of the statute which accords with the intention of the legislature.”
“It was common ground that two words “large bus” have been omitted from the two Orders 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 1959 Act, reaffirmed as a continuing power for revisions to take place pursuant to section 10 of the 1971 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”
“The purpose for which a power is conferred, and hence its ambit, has to be inferred from the language used, read in its statutory context and having regard to any aid to interpretation which assists in the particular case. In either event, whether the purpose is stated expressly or has to be inferred, the exercise is one of statutory interpretation. Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman … . As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[1975] AC 591 , 613: “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.””
“Or the aids may be external to the statute, such as its background setting and its legislative history. This extraneous material includes reports of Royal Commissions and advisory committees, reports of the Law Commission … and a statute’s legislative antecedents. … Nowadays the courts look at external aids for more than merely identifying the mischief the statute is intended to cure. In adopting a purposive approach to the interpretation of statutory language, courts seek to identify and give effect to the purpose of the legislation. To the extent that extraneous material assists in identifying the purpose of the legislation, it is a useful tool.”
“The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result which is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament’s real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation.”
“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 for the bridge are as follows:”
“From and after the coming into force of this Order for the purposes of the tolls authorised in pursuance of the Humber Bridge Acts 1959 and 1971, 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 the Schedule to this Order with respect to each class of traffic specified in column (1) of that scale.”
“The scale of charges referred to in article 2 of this Order shall be as follows: “(1) (2) Class of Traffic Maximum Toll 2 Motor Car Motor Caravan Goods vehicle having a maximum weight not exceeding 3.5 tonnes£2.50 3 Goods vehicles having a maximum weight exceeding 3.5 tonnes but not exceeding 7.5 tonnes Vehicle in class 2 above with trailer Small bus (up to 16 passengers excluding driver)£4.50 4 Goods Vehicle exceeding 7.5 tonnes maximum weight with 2 axles£10.00 ”
“(b) The toll for goods vehicles over 3.5 and up to 7.5 tonnes maximum weight and for small buses (up to 16 passengers excluding the driver) is increased from£4.30 to£4.50 . (c) The toll for good (sic) vehicles over 7.5 tonnes maximum weight with 2 axles is increased from£9.60 to£10.00 ”
“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 17 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 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 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 1997 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 may axles a bus has.”
“3.5 The increases now proposed would take effect, if confirmed, on1 April 2002 , and apply during the period to31 March 2004 . The 2000 Order retained eight classes of Bridge user and these would remain unchanged. Of these, two classes, pedestrians and cyclists, would continue to use the Bridge free of charge. The toll chargeable to motorists would increase by 10 pence to£1.10 , representing the smallest convenient increase compatible with current coinage. The tolls chargeable to the remaining five classes would increase, with some limited rounding, by 4%, representing the Board’s best estimate of inflationary trends during the period1 April 2002 to31 March 2004 . This estimate had been formulated combining experience of past inflation with Government estimates of future inflation. 3.6 Thus the toll chargeable to motor cars would increase by 10 pence or 4.16% to£2.50 . Since 1989, the tolls chargeable to heavier vehicular traffic had been based on weight and number of axles, irrespective of type of vehicle. Coaches and large buses (those carrying more than 16 passengers excluding the driver) were thereby included in class 4: “Goods Vehicle exceeding 7.5 tonnes maximum weight with 2 axles”
“4.2 The very high existing Bridge tolls imposed on PSVs, that is, on large buses and coaches, using the Bridge were unacceptable and were causing operators to reduce crossings. The proposed toll increases would accelerate this trend. Reducing the toll would encourage an increase in Bridge crossings by PSVs and increase toll revenue from that source. 4.3 The tolls charged for use of the Bridge were the highest for any estuarial crossing in Britain. … Moreover, the toll charged for a coach or large bus was four times that charged to a motor car, again the highest differential imposed on any British estuarial crossing. This fourfold differential had been applied since the inception of the Bridge, but had always been onerous and unfair. If the board’s toll proposal were implemented, the cash difference between the undiscounted tolls for a single crossing by a car (£2.50 ) and a large bus (£10.00 ) would rise to£7.50 . The average car:large bus ratio for all other UK crossings was 1:1.87.”
“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 the 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”
“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…”
“I do not therefore accept that any reduction in the toll proposed for all PSVs is appropriate. It follows that there is no purpose to be served by establishing a separate PSV toll class, as urged by the objectors. … Charging for PSVs by weight and number of axles seems to me to be fair, having regard to my conclusion above as to the essentially commercial nature of these operations in general. … ”
“On the basis of the evidence before him and having regard to Section 10 of the 1971 Act, the Secretary of State is satisfied that the proposed toll revisions are justified. The Secretary of State has, therefore, decided to make the Order.”