'.—(1) Section 8(2) of the 1961 Act shall be amended by inserting at the beginning, "Subject to the next following section".
(2) After section 8(2) there shall be inserted—
(2A) Notwithstanding any provision of this section, any person authorised by a local authority may for the purpose of exercising the duty conferred on that local authority by section 4B above enter any land at any time if he is satisfied that such action is required in a case of emergency.".'.—[Mr. Chisholm.]
§ Brought up, and read the First time.
§ 6.3 pm
§ Mr. Malcolm Chisholm (Edinburgh, Leith)
I beg to move, That the clause be read a Second time.
New clause 1 deals with emergency powers of entry with reference to clause 2, which deals with cleansing, repairing and otherwise maintaining watercourses. We welcome the Bill in general and the fact that duties are to be imposed on local councils with reference to the maintenance of watercourses and flood prevention.
The Bill changes the "can" of the Flood Prevention (Scotland) Act 1961 into a "must". However, if councils are to fulfil their duties properly, they must have the necessary powers and resources. One issue that we raised in Committee with reference to powers related to fines for dumping. One of the main causes of flooding is dumping in rivers. We argued that the maximum fine should be increased from £1,000 to £2,500. Councils need that power to do their duty, but the proposal was rejected by the Government. That shows, once again, that the Labour party is prepared to be tough on anti-social behaviour.
To do their job properly, councils also need powers of access in an emergency—access to a building or land that causes a serious flood problem. Councils want that power, yet the Government deny it to them. I raised the issue on Second Reading, as did the hon. Member for Argyll and Bute (Mrs. Michie)—I seem to be quoting Liberal Democrat Members rather a lot this evening. The hon. Lady said:Such powers could be needed in an emergency such as that which occurred recently in Dunoon. Then, equipment had to be diverted a considerable distance to gain access to a watercourse in flood because a private landowner would not allow access over his stretch of land."—[Official Report, Scottish Grand Committee, 13 January 1997; c. 65.]The matter was also raised by me in Committee, as part of a large group of amendments, and it did not merit a great deal of the Minister's time when he replied. He said:We, too, want to allow for quicker access to land but we do not consider that access without a warrant is necessary or appropriate."—[Official Report, First Scottish Standing Committee, 11 February 1997; c. 18.]Today, the Minister has an opportunity to amplify that remark.
Section 8 of the 1961 Act provides that admission to any land shall not be demanded as of right by councils, unless 14 days' notice of intended entry has been given 380 to the occupier of the land, but that, on application to a sheriff, the sheriff may warrant the council to enter that land if he is satisfied that there is a case of urgency. That has been extended slightly in the Bill through a Committee amendment, which allows a justice of the peace to grant the council the power to enter the land. That does not go far enough.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
Might it not be the case that the justice of the peace who gives authorisation is a member of the council?
§ Mr. Chisholm
I thank my hon. Friend for that interesting point, which should be noted by the Minister.
The Bill places a new duty to act to clear watercourses if that would substantially reduce the likelihood of flooding. Blockages of culverts, in particular, can occur very quickly as a result of natural debris, such as broken branches, or irresponsible dumping in watercourses. I have referred to the problems that that can cause councils in pursuing their duties.
There can be no guarantee that a regular maintenance programme would necessarily detect such hazards before a storm or flash flood. On occasions, blocked culverts have rapidly caused significant flooding of property. If councils are to carry out their duty effectively, it is essential for them to be able to access blockages in an emergency, before the flood waters rise to dangerous levels.
For example, in Paisley, which was badly affected by floods in the winter of 1994, a light engineering company called Tercet, which makes high-quality products for the electronics industry, was badly flooded. The flooding arose from a blocked culvert on an adjoining vacant site, which was owned by a private development company, whose whereabouts were not known at the time. Ownership had changed and was initially denied. The flooding rose to a depth of 0.5 m within two hours. The company closed its operations for about six weeks and the damage cost £1.5 million to repair.
Although it is not usual to allow emergency access without a warrant, the speed of flooding and the gravity of the consequences make this an exceptional case. The new clause would allow emergency access without a warrant only if, in the view of the responsible officer, waiting for a warrant would result in significant flooding of property. In those circumstances, the measure is reasonable and necessary. It should be noted that, in paragraph 18 of the original consultation paper, the Government suggested:Authorities would be able to carry out work at their own expense with similar access arrangements as obtained in the 1961 Act with the addition of a power to act in an emergency without service of notice.The Government should explain why their original intentions as embodied in the consultation paper have not taken shape in the Bill.
The simple fact is that, without this emergency access power, there would be a risk of unnecessary flooding occurring in certain cases. I have said that we support and welcome the extra duties for councils conferred by the Bill—indeed, Labour Members pressed for those powers during debates on environment legislation two years ago. However, if councils are to exercise their duties properly, they must have the tools to do the job. One necessary tool is the emergency access power.
381 The other essential tools, which are not mentioned specifically in an amendment tonight, are the resources to do the job. Hon. Members may raise that issue on Third Reading. There are clearly serious problems, particularly in relation to clause 3, because the plans cannot be realised without funding. Perth has applied for challenge funding, but there are many more applicants than there is money available for the work required.
It is good that councils should have those duties, but they must also have the resources and the powers to perform them properly. Emergency access is an essential power. The councils want it, so why will the Government not grant it to them?
§ Mr. Norman Hogg (Cumbernauld and Kilsyth)
Madam Deputy Speaker, like me, you have served in the House for a long time. You will remember a time when Tories were toffs. Unfortunately—with the exception of the right hon. Member for Dumfries (Sir H. Monro), who is undoubtedly a toff—they are not toffs any more. They used to know a thing or two about land. However, present Tory Members do not know very much about that issue—although they often sell it in small parcels as estate agents. When they knew about land, they would contribute to debates such as this, and they would have been able to tell us why the new clause is inappropriate.
I do not understand why the Government should resist our new clause, as it seems to be eminently sensible for all the reasons that my hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm) offered. I do not understand why restrictions should be put on local authorities when dealing with emergencies. I do not see why a justice of the peace must be involved. It has always been a great source of irritation to me that I was never made a justice of the peace. [HON. MEMBERS: "Shame."] I did something to offend Willie Ross, which was a grotesque mistake for a young man in politics to make. As I was never a justice of the peace, I do not really know what their powers involve. However, such restrictions amount to impediments that will prevent authorities from taking the proper action at the right time to avoid difficulties.
This House and the other place will go to great lengths to defend landowners. We have discussed defending the lawyers—we can be relied on to do that well—but the defence of land is everything to some hon. Members. I notice that the Under-Secretary of State for Scotland, the hon. Member for Kincardine and Deeside (Mr. Kynoch), will reply to the debate. I hope that he will explain why the new clause is not sound, because it seems to be an eminently sensible idea. The local authority or the three water authorities—the strange creation of the present Administration—are the appropriate bodies in Scotland to deal with such emergencies. I cannot wait to hear the Under-Secretary explain why the new clause is not a good idea.
§ Mr. Bill Walker (North Tayside)
The hon. Gentleman should bear it in mind that land is a finite resource and water is not.
§ Mr. Hogg
I have always known that the hon. Gentleman is a philosopher. I may not be able to sleep tonight, because I will be thinking about that interesting idea. I shall look for him tomorrow to tell him my thoughts on it.
I believe that we should agree to this reasonable new clause. Goodness knows why the Government always think of reasons why they should not be sensible. I am sure that they will run true to form tonight and resist our new clause. I hope that my hon. Friend the Member for Leith will not cave in, as he did on a previous occasion. I urge him to press the matter to a Division.
§ Mr. Thomas Graham (Renfrew, West and Inverclyde)
As many hon. Members will know, my constituency was devastated by floods in 1994. Many people suffered an unbelievably horrific winter: they were forced from their homes, their houses were ruined and their lives were destroyed. Those folk have now returned to their homes, but they continue to fear further flooding. At the time, my constituents did not know who would come to their rescue—they expected some Government help, but this Government certainly did not provide it. It was said at the time that the Government had left them high and dry. Assistance from central Government was certainly a long time in coming.
The local councils did their best. They did not know where the money would come from or how they would deal with the problems created by the floods. [Interruption.] I hope that the Minister is listening—he seems to be paying more attention to his hon. Friend the Member for North Tayside (Mr. Walker), who talks with finesse about water.
My constituents had to wait a long time to receive assistance. On one occasion, my hon. Friend the hon. Member for Glasgow, Provan (Mr. Wray) and I visited a family at 1.30 am. We waded through 2.5 ft of stinking sewage which surrounded my constituent's house. Families could not get out and about. The fire service was doing its damnedest to assist people: it was pumping water, but was making little progress as the rain was torrential and the drains were blocked with debris. The Minister must give local authorities real powers and real finance.
Just a week ago, a constituent of mine was going bananas because the river outside her house had nearly reached flood level, and she was imagining what it would be like when the water came over. Madam Deputy Speaker, you are a woman. You can imagine how my constituent felt when she got up and saw sewage all over her house, her carpets and kitchen stinking of bog and human dirt.
The Minister knows about that case, because I have written to him a number of times. I plead with him not to let my constituents suffer that indignity once again. Surely the local authority should be given the power to act quickly in an emergency. However, it takes intensive manpower. Last weekend, dozens of men came out with sandbags. That cost money, but the people who are living in fear of flooding cannot but look to the Government and to local government to give them some security.
I shall finish, Madam Deputy Speaker, because I promised to speak for only five minutes, although I could speak for five hours on this subject. The folk who 383 get flooded live in my village, in Linwood. I saw them all the time. It broke my heart to see people at Christmas whose toys and everything else for which they had worked had been ruined.
§ Sir Hector Monro (Dumfries)
I am interested in the compelling case that the hon. Gentleman is making, but what practical advantage does the new clause give for emergency access to prevent flooding?
§ Mr. Graham
I am speaking about new clause 1. I ask the Minister to consider the points that I am raising on behalf of my constituents, to ensure that the local authority has meaningful powers so that it can spend money to do the job.
§ Mr. Graham
The hon. Gentleman said something from a sedentary position. If he stands up, I will give way.
§ Mr. Walker
The hon. Gentleman should read what the amendment is about and what the powers are for. It is not about spending money.
§ Mr. Graham
I could respond to that, but I have manners. The hon. Gentleman is just being provocative. That man should understand the suffering of my constituents.
I went on record and said that I welcomed the Bill. It is a step in the right direction. I welcome it in every way, and so do my constituents, my local authority and the people who are worried about the threat of flooding. I ask the Minister to go a stage further: give us rock solid assurances so that local government does not need constantly to look over its back, so that it can do the job properly. We are asking for strong emergency powers to deal with the problem. I hope that the Bill will help us in the long term. That is the message that I want the Minister to give my constituents.
I congratulate the Minister on introducing the only decent Bill that I have seen in the past 10 years.
§ Dr. Godman
May I point out to you, Madam Deputy Speaker, that you are fortunate in one respect and I am unfortunate in another? My hon. Friend the Member for Renfrew, West and Inverclyde (Mr. Graham) is a neighbour of mine; you just come across him occasionally. [Laughter.] The hon. Member for North Tayside (Mr. Walker) may laugh, but he was being deliberately provocative when he intervened on my hon. Friend's passionate speech.
Talking about provocation, I wish to say mea culpa, that I was not being provocative when I asked my hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm) a question concerning a justice of the peace in the scheme of things. The JP approached by a local authority may in fact be an elected representative of that authority. My question was prompted by the fact that, most weekends, I meet up with a delightful woman in Scotland who is both a JP and a councillor. Far from criticising Edinburgh—if I can catch my hon. Friend's attention for a moment—I love that city. I lived for 14 years just off the new town.
The new clause is important. A local authority should have the power to take decisive action to defend our constituents where, say, a neighbour—be it a large 384 company or, perhaps, Clyde port authority—is acting irresponsibly. Many people complain about local authorities acting in a cumbersome, bureaucratic way, but in these circumstances, outlined so graphically—I would not say elegantly or even eloquently—by my hon. Friend the Member for Renfrew, West and Inverclyde, a local authority has to act promptly. I know of many councillors and local authority officials who would not dream of abusing the powers in the new clause, but decisive action may have to be taken occasionally to deal with some riparian owners, and I refer to Clyde port as a riparian owner.
I am grateful to the Minister for his letter dated 25 February, which was delivered almost by his own fair hand, in which he gave a substantive answer to a serious question that I asked him in Committee. As he said in his letter, he has sent copies to other members of the Committee. There is an important issue here, and with respect to what the Minister says in his letter, a local authority along the Clyde might need to take decisive action against a landowner. When I say "landowner", I am not talking about someone who owns an estate or a farm. We could be talking about an industrial enterprise such as Clyde port. I am not saying for one moment that Clyde port would neglect its obligations to the authorities and the people who live along the Clyde, as my hon. Friend the Member for Renfrew, West and Inverclyde and I do. Nevertheless, elected representatives and their officials should have the power to deal with negligent riparian owners or landowners who fail to honour their obligations to their neighbours.
The new clause would strengthen a Bill that will be welcomed by my constituents. Sometimes it is almost impossible to drive through Port Glasgow after heavy rain, as the Minister and the hon. Member for North Tayside know. In other areas in Greenock and Port Glasgow, the water runs heavily off the land. Perhaps Inverclyde council needs to take decisive action. Who can imagine someone like Bailie Tricia Godman behaving ultra vires, behaving badly, if the powers in the new clause were to hand?
We have to trust our local authorities and our much-maligned elected representatives. I know that every hon. Member would rather be a Member of this place than a member of a local council. Members of local councils have many onerous duties. They are much more amenable where their constituents are concerned. We are down here, 400 or 500 miles away from our constituents. Because of the damage that flooding inflicts on people's homes—on their carpets, furniture and so on—a local authority should have the right, through the new clause, to act decisively and expeditiously on behalf of the people in the community.
§ Mr. Bill Walker
Like the hon. Gentleman, I too have had sad experience of flooding. I do not want the House to debate this matter without my placing it on record that I believe that the record of Harry Robertson and his emergency team in Perth and Kinross is exemplary. They have done a tremendous job, and will continue to do so. It is the officials and not the elected representatives who run the show when things go awry.
§ Dr. Godman
I am sure that Harry Robertson and the other officials do a first-class job. The overwhelming majority of local authority officials, from Shetland to the 385 borders, do a first-class job in emergencies, as they did during the dreadful disaster in the Dumfries constituency. I was thinking about that the other day when my wife and I drove past Lockerbie. Heaven forbid that such a disaster should happen again—I never want to see it. The everyday problems of flooding have implications for ordinary people who have saved to make beautiful little homes of their houses.
I believe that first-class officials and first-class elected representatives at local level—the Minister may say that I would say that, because I am married to one, but I hope that it will earn me some brownie points—act judiciously in 99.99 per cent. of cases against a negligent and careless neighbour. We have a first-class new clause.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. George Kynoch)
As I explained in Committee when we debated this issue, I understand the motivation behind the proposal of the hon. Member for Edinburgh, Leith (Mr. Chisholm). We also want to allow for quicker access to land, but we do not consider that access without a warrant is necessary or appropriate. That was why the Government tabled an amendment in Committee, which provided for a justice of the peace to sign warrants for access. We consider that to be appropriate and sufficient in the circumstances.
The hon. Member for Greenock and Port Glasgow (Dr. Godman) raised the issue of justices of the peace who are also councillors. So be it. Justices of the peace, on appointment, must swear an oath of allegiance in court to Her Majesty the Queen. They have to swear that they will act independently. There is a distinct separation between their duties as justices of the peace and their duties as councillors.
§ Dr. Godman
I have great trust in and respect for justices of the peace. In a modest way, their role is analogous to that of a Government Law Officer. As councillors and justices of the peace, they perform two roles, and they do so honourably.
§ Mr. Kynoch
My point was that there is easy access to justices of the peace, so they are the right people to make access easy. Both in Committee and tonight, the hon. Member for Leith said that, on occasions, blocked culverts have quickly caused significant flooding of property. The hon. Member for Renfrew, West and Inverclyde (Mr. Graham) was not there in the Committee, although he was a member: unfortunately, he was ill at the time and we did not have the benefit of his, I would say, eloquent contribution, even though the hon. Member for Greenock and Port Glasgow did not recognise it as such. The hon. Member for Renfrew, West and Inverclyde referred to the misery caused by flooding in his constituency last year.
I want to get on, because we have covered much of that ground in Committee. The hon. Member for Leith referred to Tercet, which is a light engineering company that was affected by the 1994 flooding in Paisley. As with all victims of flooding, it is of great concern to me that that company suffered, as did the constituents of the hon. Member for Renfrew, West and Inverclyde. The Paisley flooding was one of the events that led to the Government's decision to review existing flood prevention legislation.
386 However, it is fair to say that the floods in Paisley and elsewhere in Scotland in 1994 and 1995 were exceptional. They occurred at a time when some councils were not doing enough to prevent flooding. I am on record as saying that there is evidence that the situation has improved since local government reorganisation. I hope and expect that, when the Bill is enacted, the situation will be further improved.
I accept that there will always be exceptions: no legislation can cover all eventualities. The Bill will make flooding less likely than before. This part of the Bill will ensure swift action using justices of the peace, and I believe that is sufficient.
The hon. Member for Leith referred to the consultation with councils and others on the proposals. It may interest him to know that only 8 per cent. of councils said that they wanted a provision without service of notice. I believe that we have responded to the consultation exercise, and I hope that the hon. Gentleman will withdraw the motion.
§ Mr. Chisholm
We welcome the extension of the role to justices of the peace. I do not think that we have had an entirely satisfactory explanation of why the emergency power has not been granted. However, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.