§ 2.10 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Munster.)
§ On Question, Motion agreed to. House in Committee accordingly:
§ [The LORD STANMORE in the Chair.]
§ Clause 1:
§ Duty of Minister in relation to water.
§ 1. It shall be the duty of the Minister of Health (hereafter in this Act referred to as "the Minister"), to promote the conservation and proper use of water resources and the provision of water supplies in England and Wales and to secure the effective execution by water undertakers, under his control and direction, of a national policy relating to water.
§ LORE STRABOLGI moved, after "Wales," to insert "to prevent the pollution of water supplies." The noble Lord said: This Amendment follows on the speech made by my noble friend Lord Addison on the Second Reading of this very important Bill, when my noble friend drew attention to the growing evil of pollution and contamination of rivers. Although it may be the intention of His Majesty's Government that the Minister, amongst his duties, shall have that of preventing, checking, prohibiting or putting a stop to pollution of water supplies, it does not actually say so. The first clause says it shall be the duty of Minister "to promote the conservation and proper use of water resources and the provision of water supplies," but nothing about seeing that the water is pure. I am 306 sure your Lordships will agree with me that this is a very important matter and it might be made a little more clear if the Government could see their way to accept my Amendment.
§ In this matter I am speaking for thousands of farmers whose cattle and stocks are dependent on rivers for their drinking water. If the water is contaminated the stock sickens and great harm is done to the whole industry of husbandry. Secondly, I am speaking for the angling fraternity. There are not only wealthy anglers; I am speaking for, I suppose, a hundred thousand fishermen the great majority of whom are artisans and working men. These form a most reputable and respectable body of people, who do no harm to anyone, who nearly always are good citizens and good fathers, and who are, in spite of the legends to the contrary, as truthful as any other section of the community. When a river or canal is contaminated by carelessness the fish are killed and these poor fellows are deprived of their harmless recreation. Also in these hard times the supply of freshwater fish is not by any means to be despised as a means of increasing the food supplies of the nation. If our rivers were properly looked after, stocked and conserved, I believe the food supply could be greatly increased. In any case the supply of freshwater fish is valuable and useful.
§ Now under the Bill the duty of preventing pollution of rivers and other water supplies is, as before, laid on various local bodies, boards of conservators, and so on. The truth of the matter is that these people have not the powers or the money in these days to prevent pollution. On Friday last I was talking to a very experienced member of the Hampshire river conservators who told me that both the Test—a very valuable river from the point of view of the farmer and of the supply of fish—and the Avon have been badly contaminated. They are two very famous Hampshire rivers. In both cases analyses have been taken of the water, which has been found to be less pure than it has been within living memory, with very bad results for both farmers and fishermen. The board of conservators have not much money, they have not much power, they do not want to make trouble and they really are no: the best people to proceed against those 307 who are responsible for polluting the rivers. Sometimes the war factories are responsible, and I suppose that that was inevitable. There would be a good deal of pollution in various parts of the country as a result of these new industries which have been established for war purposes. Partly also it is due to the growth of population and the neglect of local authorities— perhaps not through their own fault again but through war conditions— to provide drainage and sewage disposal plants. But the net result is that a great many rivers in this country are in a worse state than they have been for generations.
§ Last year, as the noble Earl no doubt knows, the Kennet, a very important river, was badly poisoned. The farms suffered very much. The farmers had to keep their cattle away from the water and thousands and thousands of prime fish, which would be very welcome at the present time, were made unfit for food. I have only given three examples, the rivers Test, Avon and Kennet. If the Minister would accept responsibility for this matter his inspectors could go about the country. He has his representatives and in any case they could trace cases of contamination and pollution and then take action on behalf of the Crown. That is a very different story from a local board of conservators proceeding against some wealthy and powerful manufacturing company, say a brewery, which may be poisoning the water. I think that explains the object of my Amendment. I am sure it has the sympathy of the noble Earl and the Government and I hope of all your Lordships. I beg to move.
Page 1, line 1o, after ("Wales") insert ("to prevent the pollution of water supplies").—(Lord Strabolgi.)
§ THE EARL OF MUNSTER
My Lords, the noble Lord who moved this Amendment is quite correct in saying that the insertion of the words which he proposes has the sympathy of His Majesty's Government. I do not disagree with the views he has expressed. As the noble Lord pointed out, the purpose of the Amendment is to add to the Minister's functions under this Bill the general duty of preventing the pollution of water supplies. There are, I am advised, a number of separate Acts dealing with pollution and its prevention. There are the River Pollution Prevention Acts of 308 1876 and 1893, the Salmon and Fresh Water Fisheries Act of 1923, and the Public Health and Drainage of Trade Premises Act, 1937. There is also a projected Bill, as my noble friend is probably aware, to set up river boards. I think that Bill will be the place at which to raise the Minister's position as regards the pollution of water supplies. The occasion for such a thing to be done will be when the general question of pollution is before Parliament. The Bill to which I have just referred will amend the general law with regard to pollution.
It is quite true that this Bill in certain clauses does touch upon the question of pollution, but it does so primarily in relation to the duty of public undertakers to prevent the pollution of any water, whether surface or underground, which belongs to them or which they are authorized to take. The Minister's duty in the Bill is to see that the water undertakers exercise their powers and perform their duties in this particular respect. That is already covered by the words "to secure the effective execution by water undertakers, under his control and direction, of a national policy relating to water." I think I have said enough to show my noble friend that I am not wholly against the proposal in his Amendment but it would not be possible to insert the words in this Bill. It would in fact be proper that these words, or words to a similar effect, should be inserted in the River Boards Bill which I hope will come along in the new Session. For these reasons I hope my noble friend will see his way to withdraw his Amendment.
I am much obliged to the noble Earl for his sympathetic reply. Do I understand that the River Boards Bill is already drafted? If not, perhaps it could be considered whether these words, or similar words, could be inserted in it.
§ THE EARL OF MUNSTER
I am not at all certain whether the Bill has been drafted, but I will convey the noble Lord's suggestion to the appropriate quarter.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clauses 2 to 14 agreed to.309
§ 2.15 p.m.
EARL DE LA WARR moved, after Clause 14, to insert the following new clause:
If any statutory water undertakers by reason of toe construction of any well, borehole or other similar work or the extension of any existing well, borehole or other similar work, interrupt, or diminish the supply of water in use upon y neighbouring land (including any supply derived from a well or borehole and whether or not flowing in any defined channel) the statutory undertakers shall make provision for alternative supplies or pay full compensation to all parties interested for all damage sustained by them by reason of such interruption or diminishment of such water supply as aforesaid.
§ The noble Earl said: The point I venture to put before your Lordships is really an extremely simple one. It was referred to during the Second Reading debate on the Bill. It is this. A company or any water authority is entitled to enter into an area and sink bores or wells and thereby, it may well be, extract the total water supply that is available in that area. It may be that there is a whole community dependent on its own wells and in consequence of what is done the water supply of that community may recede. I mentioned on Second Reading the question of the watercress industry, but in fact it tray well happen that a whole village community of a few hundred souls may be deprived in this way of their water supply. If your Lordships will turn to Clause 14 you will see that by this clause they are deprived of any possibility of protecting themselves. At the present time, under the law as I read it, they have at least a possible means of protecting themselves—I do not say it is a satisfactory one— by sinking new wells, probably at a much greater depth. But under Clause 14 they are deprived even of that right, because the Minister is now in a position of being able to make an order prohibiting the sinking of any alternative borehole or wells whatsoever. They have no redress at all, if they are deprived of an existing right, of going over to an alternative, and have no right to be given another supply of water nor yet of being paid compensation. I suggest to your Lordships and to His Majesty's Government that this is a matter which requires consideration. It may be that the words of my Amendment are not the best way of dealing with the problem, but I am sure your Lordships will agree that there is a very real 310 problem and one to which it is right to draw the attention of His Majesty's Government and ask them to see to it before this Bill is passed that this undoubted grievance is put right. I beg to move.
After Clause 14 insert the said new clause.—(Earl De La Warr.)
Before saying anything in support of the noble Earl's Amendment, perhaps your Lordships will permit me to say what a pleasure it is to me that His Majesty's Government have seen fit to strengthen themselves by the addition of a young and distinguished kinsman of mine. I live in the country where the water supplies are scanty and capricious and I find among the country people, who are generally well up in the Common Law of the land, a theory that under the Common Law every man has a right to the waters that arise on his own land. I am bound to say that I feel a great deal of anxiety when that principle is threatened. Moreover, in the case where the Minister did not prohibit competition with the statutory undertaker, I think that an affected village would soon witness what I call a well race. I am bound to say that any private person who engages in a well race with a statutory undertaker will have a very difficult task ahead of him. I hope therefore His Majesty's Government will consider this Amendment very carefully.
§ VISCOUNT MAUGHAM
I think this is a matter which requires careful consideration. My justification for saying anything about it is that I have been concerned with a number of cases relating to similar matters, where water has been abstracted with very serious consequences. Your Lordships are no doubt aware that as the law stands, and until this Bill shall pass, there is no right to complain of the abstraction of water even by your nearest neighbour if in doing so he only interferes with water in an undefined channel. There have been many cases in which that has been enforced by order of the court. In other words, if there is a definite channel through which water flows you have a right, but if the channel is undefined you have not a right.
One observation that arises on this proposed Amendment— my noble friend with his usual candour says he is not wedded to the precise language of the Amendment— is that as the Amendment stands it 311 looks as if when a water undertaker constructs a well, borehole or other similar work, and some person in the neighbourhood conceives that his supply of water has been diminished, he will bring an action and will apparently be entitled to bring an action, although it may be that in fact the amount of abstraction or the diminution of supply has been exceedingly doubtful or very trivial. Although I have not had the opportunity of discussing it with the noble Earl, what I think would be a reasonable clause and one which might prevent a great deal of heartburn and trouble would be a clause so worded that it applied to cases where interruption or diminution was established. In other words, I should provide that "if it is established" that any statutory water undertakers have interrupted or diminished a supply of water—the words "have interrupted" would come in instead of "interrupt"—"whether or not flowing in any defined channel," and so on, statutory undertakers shall make provision for alternative supplies or shall pay (or be liable to pay, it should be) full compensation to all parties interested for such damage.
Such a clause would have the effect that it would apply only in the somewhat unusual cases in which you could prove your case and in which you were bound to prove your case. That might be some years after the damage had been done. Your Lordships know perfectly well— the White Paper on which this Bill is founded explains it with clarity— that you cannot tell the effect of a boring or anything of that sort at the time it is done, or even a year after it is done, because the amount of water supply is affected so much by the rainfall. Scientific people tell us that it has been known that it is not until three years after a particular operation which ultimately affects the supply of water in the neighbourhood that the effect of it is noted, observed, proved and the cause of it established. If the interference which Clause 14 contemplates is confined to known channels, it seems to me perfectly clear that the undertakers would then be liable, but I go further in support of my noble friend and say that the right of action should apply also to cases where water has come through unknown channels if it is established that the result of it has been to dry up a well or make a 312 stream cease to flow, or there has been some other, it may be, terrible effect on the neighbourhood of the operations of the undertaker in question.
Therefore I strongly urge on the Government, if they want to prevent a feeling of injustice to any people who are concerned with streams and wells, where the water supply, it may be for many years, has rested simply on these sources of supply, that they should accept either this clause or some other clause which will make water undertakers aware when they embark on some major operation under Clause 14 that they will have to compensate the persons who prove beyond a peradventure that they are damaged by what has been done.
§ 2.26 p.m.
§ The EARL OF MUNSTER
The object of this Amendment, as clearly stated by the noble Lords who have spoken, is to require statutory undertakers to make provision for alternative supplies or pay compensation to the interested parties where, as a result of the abstraction of underground water by a borehole or new well, or the extension of an existing well or an existing borehole, the supply obtainable on neighbouring land is interrupted or diminished. I think it is clear to your Lordships that this proposed new clause is a matter of some importance, and perhaps therefore you will bear with me if I deal with the subject at considerable length.
I have no wish whatever to cross swords with the noble and learned Viscount, Lord Maugham, who has expressed to your Lordships his views upon the Common Law of England, but as I understood the remarks made by the noble and learned Viscount he was in point of fact supporting Clause 14 as it stands in the Bill at the present time. I am informed that under the Common Law of England every owner of land is entitled to take any underground water under his land which is not flowing in a defined channel; that is unless he or his predecessors have parted with this natural and normal Common Law right. He can, I understand, do exactly what he likes with it. He can abstract the water for his own personal use or for business use; he can sell or dispose of it; he can even open up and waste a flow of water which he does not require. I think normally there is enough water to provide for many wells without serious damage to 313 any, but is true that in some parts of the country, where underground water forms one of the main sources of supply for all purposes, this unfettered right has often led to competitive boring or waste of water. South Lincolnshire provides a well-known example of the difficulties likely to arise in a critical area.
The Common Law is, of course, the same in critical areas as in any other part of the country. Any one dependent on boreholes or wells for his supply has no remedy whatever if the activities of the neighbouring landlord result in interruption or in diminution of his yield of water. Statutory water undertakers, whether local authorities or companies, might be expected to have as landowners the same right as other landowners and at the same time be subject to precisely the same disabilities. But, in fact, as creatures of Statute, they are quite unable to exercise the ordinary right of a landowner to sink wells on their own land. To do that, they have got so have the express authority of the Minister of Health or of Parliament, and that authority is given not generally but only in relation to a well on a specified piece of land. The result, clearly, is that where the statutory water undertakers propose to sink boreholes or wells to abstract underground water from their land, there is an opportunity for objections to be made by all those who fear that they may be detrimentally affected.
On the other hand, the statutory water undertakers, on whom an enormous number of people are solely dependent, both for domestic water and trade water supplies, have, in general, no protection whatever against any unreasonable exercise by the adjoining landowners of their unfettered Common Law rights. I think it is true to say— and I think that it was, perhaps, suggested here to-day— that this has long been felt to be quite indefensible in areas where underground water is the main source of supply for all purposes, particularly in those areas where the strata are such that wells can affect each other's water over a considerable distance, and the total water resources are limited in relationship to the prospective demand.
To meet the problem, the Central Advisory Water Committee, under the Chairmanship, as your Lordships well know, of Lord Milne, recommended in 314 their first report, which was published in 1938, a measure of general control by licensing, in such critical areas, and on those recommendations Clause 14 of this Bill has, in point of fact, been drafted. Moreover, the White Paper published by the Government some time ago showed our intention in this matter quite clearly. That White Paper was published in April, 1944. Now this proposed new clause, which has been moved by the noble Earl, takes no regard of this system of control, but it does seek to perpetuate, and even to increase, the disabilities of the statutory water undertakers which I have just endeavoured to describe. In fact, it does intend to alter the whole of the Common Law on this matter in this country, but not for all alike— which would be understandable, though indeed a very big issue to raise at this stage— against the statutory water undertakers alone. It would, I am advised, compel them, and them alone, amongst owners of land, to pay compensation or to provide for alternative supplies where, for instance, the result of pumping from a new well, a newly extended well or a borehole, was to reduce the yield of water from some neighbouring well or borehole.
This, it seems to me, is a wide general obligation, and one which Parliament has never put upon water undertakers in all the very many hundreds of local Acts which have been passed from time to time in the House of Lords. It seems to me quite indefensible that such a general obligation should now be placed on statutory water undertakers everywhere in England and in Wales, and that no complementary obligation should be put on near-by landowners to compensate and provide for alternative supplies for statutory water undertakers where the yield from their wells might be interrupted or diminished by the activities not of themselves but of others. It is true to say that what Parliament has sometimes done is to include in local legislation in special circumstances, and in special circumstances only, and on shown cause, a protective provision limited to the specified zone of the water undertaker's well and its neighbourhood. This, usually, I am informed, does confer certain rights, on proof of damage, on owners of existing wells within a specified distance of the new well. There is an example of 315 this kind of clause in the East Worcestershire Water Act, 1941.
In the critical areas, which are areas such as I have described, in Lincolnshire, where underground water forms the main source of supply for practically every purpose, it is, I think, usually recognized that the general abstraction of underground water by all persons should be controlled in the interests of all those persons in such an area as that which would, probably, and properly, form the subject of a Provisional Order under Clause 14 of the Bill, and the system of licences would afterwards come into operation, in conjunction, in the case of water undertakers, with the authorization of works by statutory, orders so as to have regard to the general good, and riot to favour one or other sectional interest, whether public water supplies or not. The Milne Committee took the view that it would be impracticable to provide for compensation in respect of any control so imposed on all alike in these particular critical areas. In such areas and in the rest of the country where no such controls may be in operation, the Bill is designed to secure— through the provisions of the First Schedule to the Bill— the fullest publicity for the proposals of the statutory water undertakings, the widest possible opportunity for objection, and for the holding of local inquiries when the undertakers apply for the Order of the Minister under Clause 23 of the Bill.
This procedure, it seems to me, will enable all the facts of the particular cases to be brought out, and evidence to be given with regard to arty possible or probable interference which may be caused with the neighbouring supplies of a particular owner of a portion of land, and will enable all those liable to be affected to ask for the protection before the works are constructed. My right honourable friend will be willing, and indeed would feel hound, to consider on individual cases what is the proper and fair arrangement for all the interested parties concerned; and, on the facts shown to him, he will include in the Order authorizing the work suitable provisions to safeguard other interests on the same lines as Parliament has done in the case of some local Acts. In other cases, if necessary, he might include a provision for compensation in water; I think he would be against cash 316 compensation. I would not go so far as to say that cash compensation would never be appropriate, but each case must be dealt with on the facts and on the merits.
I apologize for delaying the Committee for so long, but let me attempt to sum up what I have endeavoured to establish. To make drastic changes today in the existing Common Law, as this Amendment endeavours to do, and to deal with rights in underground water in the one-sided way which is proposed, would, in our opinion, be unfortunate and a mistake, when there are practicable methods of control in critical areas such as are described in Clause 14 of the Bill and the safeguards which are provided under the procedure in the First Schedule. The proper way to deal with these matters is that which I have just described. My right honourable friend feels strongly that the proper method is to consider each case on its merits and to give a licence or make an Order dealing with that particular case. I hope that, for the reasons which I have given to the Committee, the noble Earl will see his way to withdraw his Amendment.
EARL DE LA WARR: Will the noble Earl be good enough to answer one specific question? Let us assume that there are twenty cottages all dependent on shallow wells. A scheme is carried out in the district, and all those wells dry up. What will be the position and the rights of those cottagers? I am assuming that the Minister is right in allowing the scheme in the general public interest. He is appealed to, and he rightly allows the scheme to go through; but unfortunately those twenty cottages are deprived of their water-supply. What would be their position?
§ THE EARL OF MUNSTER
Off-hand, I cannot tell the noble Earl; but he will observe that, if they are deprived of their water-supply, they must have been deprived of it for some reason, and the reason why they have been deprived of it is, as I understand his argument, that the statutory water undertakers have come along and taken their water. I am afraid that my noble friend has not read the proposals in the First Schedule. Those cottagers would be the first people to lodge an objection with the Minister against the proposal of the statutory water undertakers to sink wells or bore 317 shafts to obtain water, and take the water supply away from them.
§ EARL DE LA WARR
I do not think that the noble Earl can have heard the whole of my question. I am assuming that they did lodge a complaint.
§ EARL DE LA WARR
That will not give them any water. It may well be that if the noble Earl or I or any one of us were the Minister, one would, in the general interest, feel compelled to allow the scheme to go through, but that will not give these people water, nor will they have information before the scheme goes through that in fact their wells are going to dry up.
§ THE EARL OF MUNSTER
But they will have an opportunity of knowing that a scheme will operate in their district. I think that the noble Earl will agree with me that, when they have lodged their objection to the Minister, he will decide, and I cannot tell the noble Earl on a hypothetical case whether the Minister will or will not take action. When a case is put up it will be considered.
§ 2.45 p.m.
I would point out that it is often a considerable time before a shortage such as has been described takes effect. Under those conditions, I think that the noble Earl has not covered the case which has been put to the Committee.
§ THE EARL OF PORTSMOUTH
The noble Earl who speaks for the Government is so persuasive that he is very often difficult to deal with; but, as my noble friend has just said, it is often going to take a considerable time before we know whether such a disaster take place. There may be three or four wet years in which there will be no result, and then will come the disaster. I am well aware that that is probably a reason for refusing this Amendment, because it is going to be so difficult in law to establish the fact that there has been this loss of water; but I do not think that the noble Earl who replied for the Government is quite accurate when he says that the only people singled out are the statutory water undertakers. If you read Cause 14 you will find that those who allow water to go to waste are liable to 318 get into trouble, and there the existing water owners are being penalized on another score, so that the proposed penalization of the water undertakers is in line with that of others who are to be penalized for wasting their existing water.
After all, the new water undertakings envisaged by the Bill will be almost entirely statutory water undertakings because it is necessary to get a licence to bore otherwise, and they are the people who are most likely to use water and ultimately to waste it. It is almost inevitable that we shall -start with a small scheme, perhaps 10,000 gallons a day, which may affect nobody; but by the time that people have put in bathrooms and a small garden suburb has sprung up, there may be 100,000 or 200,000 gallons a day being used, and that will be the time when the water undertaking will deprive other people of their water rights and start drying up the underground water-table.
I do not believe that this Amendment will work in practice. Nevertheless, I still strongly support it, because I believe that it will be a deterrent. If local statutory water undertakers are going to be faced with the possibility that, if they bore unfairly to their neighbours, they will have a large case on their hands, they are not going to go for the easiest and most available form of water, which may destroy the underground water-tables of the countryside; they are going to think again and go for slightly more expensive originally, but far more sensible ultimately, forms of water usage, and use waste water by purification; bringing it back to the land, where it is badly needed. I strongly support the Amendment, there fore, in spite of what my noble friend Lord Munster has said. I believe that we shall need all the time we can get to learn about underground water supplies, about which we know very little at the moment. If this Amendment acts as a deterrent to statutory water undertakers from the irresponsible use of water, I think it will have achieved its object.
§ THE EARL OF MUNSTER
I have no desire whatever to delay the proceedings of the Committee, but I think that the noble Earl who has just spoken has not really read through the whole Bill, if he will forgive me for saying so. Under Clause 14, which deals with critical areas, everybody is subject to licence, including 319 the water undertakers; but, in spite of that, the water undertakers must not only get a licence, like everybody else, to bore for water, but also an Order made under Clause 23 of the Bill to authorize them "to construct, acquire by agreement, alter or continue…waterworks and works connected therewith." It seems to me that the cottages to which the noble Earl referred are amply protected by Clause 23. Further, I think that the noble Earl will forgive me for saying that he seems to have missed Clauses 28 and 29, which make it a duty resting on owners to provide water in pipes whenever possible, so that the Minister will consider carefully whether it was possible for the owners of those particular cottages to provide piped water, as is their obligation under Clauses 28 and 29.
§ VISCOUNT MAUGHAM
I am very loth to speak again, but we have heard a great deal about the Common Law from my noble friend who speaks for the Government here.
§ VISCOUNT MAUGHAM
Not so much from me, but I want to say this. It is true that in the Common Law of England you may dig on your own ground and ruin your neighbour by abstracting his water, but how has that grown up? It has grown up from an age when there were very few houses in this country, and when water was not the necessity that it is now. There was very little provision for baths, and very little for washing up of dishes for food, and very little, in fact, for all the uses to which water is now put; and, after all, if we are doing something to prevent injustice by the deprivation of water is it a drastic alteration of the Common Law? It was not decided, until the case of the Corporation of Bradford, in which a gentleman named Pickles was concerned, that you could take away the water by sinking wells on your own ground in order to get the corporation to buy you out. Instead of the country, or the lawyers as a whole, thinking that that was a glorious proof of the justice of the Common Law, every one I have ever met considered it was a monstrous abuse, and a thing which ought not to be allowed.
I cannot believe that it will generally be considered to be a dreadful thing that 320 when people are given special rights under this Bill, under Clauses 23 and 28, and so far under Clause 14, they should not seriously interfere with the water supply of the neighbouring area without giving compensation. Where the noble Earl is wrong in his argument that you have a right to appear before the Minister and ask for a provision as a condition of the licence for the work to be done, is that lie does not realize that when you get before the Minister with a claim, where a well has been sunk and any major operation for removing water has been effected, it is impossible to prove that damage will occur by what is being done except in the rarest of cases. You are helpless when you get before the Minister and it is only the lapse of time which will establish that your houses are worthless and ruined.
§ THE EARL OF MUNSTER
Do I understand that the water undertakers should have the obligation of paying compensation or giving an alternative supply of water for ever?
§ VISCOUNT MAUGHAM
You certainly ought not to understand that. If your water has been taken away you should have a reasonable opportunity of going to the Minister, if the clause takes one form, or to the court, if it takes another. If anyone is doubtful as to what is a reasonable time, you could put in a five-year or a six-year limit. I do not believe that less than a five-year limit would be fair. If you show that in wet seasons and in dry your water supply has dried up and you can no longer carry on your business, I cannot see that anything exists which ought to prevent you getting compensation.
It has been the invariable practice to assess what compensation is needed. Clause 28 refers to a supply of water for houses and schools, but it says nothing about farms.
§ 2.54 p.m.
§ EARL DE LA WARR
I do not think it is necessary to trouble your Lordships with very much more as to the propriety of inserting this Amendment or something in the way of amended wording. I cannot help commenting on one of the remarks of my noble friend Lord Munster, in accusing me of not reading Clauses 28 and 29, which provide that owners shall 321 if possible lay down a water supply. If I may say so that is a most appropriate provision. I thank Lord Maugham for what he has said on the subject of the Common Law. I always understood that it was the function of most legislation to alter the law of the land, whether it be the Common Law or some other law. So far as I see it, my Amendment only alters the Common Law in so far as it compensates the private individual for the loss to which he is being submitted of a right that he already has under the Common Law. They have the right to practise this at the moment. This Bill is depriving them of that right, and I am endeavouring to get some compensation inserted in the Bill for that purpose.
With the approval of your Lordships, I should like to move my Amendment in a slightly different form, in the light of the suggestions made by Lord Maugham. It seemed to me a valid criticism of the Amendment as I had framed it that it would be difficult to administer, and might cause a great deal of litigation, to decide whether damage had been done or not. I would ask leave to move the Amendment in the following form:If it is established in the opinion of the Minister within a reasonable period that any statutory water undertakers by reason of the construction of any well, borehole or other similar work, or the extension of any existing well, borehole or other similar work, have interrupted or diminished the supply of water in use upon any neighbouring land (including any supply derived from a well or borehole and whether or not flowing in any defined channel) the statutory undertakers shall be liable to make provision for alternative supplies or pay full compensation to all parties interested for all damage sustained by them by reason of such interruption or diminishment of such water supply as aforesaid.I would suggest to the noble Earl that he should accept that Amendment, it being clearly understood that he and his advisers should examine it before the Report stage with regard to any necessary drafting alterations. I beg to move.
§ Original Amendment, by leave, withdrawn.
§ Amendment moved—
Page 17 line 6, insert as a new clause:
If it is established in the opinion of the Minister within a reasonable period that any statutory water undertakers by reason of the construction of any well, borehole or other similar work, or the extension of any existing well, borehole or other similar work, have interrupted or diminished the supply of water in
use upon any neighbouring land (including any supply derived from a well or borehole and whether or not flowing in any defined channel), the statutory undertakers shall be liable to make provision for alternative supplies or pay full compensation to all parties interested for all damage sustained by them by reason of such interruption or diminishment of such water supply as aforesaid."—(Earl De La Warr.)
§ 3.1 p.m.
§ THE LORD CHANCELLOR (VISCOUNT SIMON)
I am at a serious disadvantage because, being engaged on other public business, I have only been here for the last few minutes of this discussion. I must beg forgiveness, therefore, if I have not precisely understood the situation in which we stand at this moment, but I gather that the Lord Chairman is putting to the House, no doubt most properly, an Amendment which is not the Amendment on the Paper, and that there are manuscript changes, apparently changes rather difficult to read, of which the noble Earl has been good enough to inform us by word of mouth. I must confess— perhaps it is because I have not been here all the time— that I really do not understand, and I very much doubt whether a great many other noble Lords understand, precisely what it is we are asked to vote for. Surely the least the Government can ask is that they should be given reasonable time to consider the Amendment in the new form.
I was able to hear the end of my noble and learned friend Lord Maugham's speech with reference to propositions of law, but obviously this is much more than a lawyer's dispute; it involves enormous public interests. It is not, of course, the usual practice of this House to play ducks and drakes with these enormous public interests. But this may put fearful burdens upon various public authorities, and it is being done by an Amendment partly in manuscript which I will be bound to say the majority of members in this House do not understand. I should hope that your Lordships will not be prepared at this stage to accept this combination of words. Anyhow, that is not the way in which we ought to proceed and I would ask my noble friend— who spoke most persuasively, I am sure, on the merits of his proposal— and others who sympathize with him to recognize that the right course is not to put in this Amendment here on the Committee stage, but on the contrary, to have it put down in 323 its proper form when it can be dealt with on Report.
§ EARL DE LA WARR
With all deference to the noble and learned Viscount, I understand that I am in perfect order in moving an Amendment slightly amended to suit the needs of the debate. The Amendment to my Amendment was put before your Lordships extremely clearly by the noble and learned Viscount, Lord Maugham, and I simply adopted his words. The principle of the discussion we have had is extremely clear, as, I suggest, is the nature of the Amendment, and therefore I would ask your Lordships to support me in pressing this Amendment on His Majesty's Government; it being perfectly clearly understood that there is a Report stage coming in the future, when it will be possible for His Majesty's Government to move any drafting Amendments if they so desire.
§ LORD TEMPLEMORE
In view of what my noble friend has said, I should not like him to be under any misapprehension. He said there is a Report stage coming. If there are no Amendments accepted there will not be any Report stage.
§ THE LORD CHANCELLOR
I was technically inaccurate. There is an opportunity of putting Amendments in on the Third Reading.
§ LORD WOOLTON
I hope the noble Earl will let this go. I hope I am not going to annoy any of your Lordships, but I am extremely anxious to get this Bill. I make no disguise of the fact that I do not like the speed with which, during this next week or ten days, we are passing legislation; that, your Lordships will agree, is something which at any rate we did not want. But here are the facts. This Bill is something of very great importance. When I brought in the White Paper and spoke on the matter your Lordships gave it very warm support and I know that you all want the main principles of this Bill to be carried into law. I am afraid— and it is obvious to your 324 Lordships that I am not using any threatening language when I say this— that if we pass substantial Amendments that have already been discussed in another place—
§ LORD WOOLTON
I am very anxious to make the position on this issue quite clear. If we pass substantial Amendments, or Amendments that have been discussed in another place, then the Parliamentary time available in another place will not make it possible for us to get this Bill. Therefore, much as I dislike the rush and the hurry, I am rather anxious to preserve this somewhat precious Bill. If the noble Earl will be good enough to let this go now we will look at it on the Third Reading. I make no promises without consultation with the Minister or consideration of the state of Parliamentary business in another place. It may be that subsequent legislation will have to be introduced, but I hope your Lordships will do your best to let us have this Bill to-day.
§ EARL DE LA WARR
When the Leader of the House makes an appeal, and particularly during these very difficult times, one is most anxious to fall in with his request. Unfortunately this is a matter of vital importance, possibly to quite small communities, but it is in order to help these small and important communities that this Bill is specifically put before us. I do feel that we shall be doing a great disservice to many people in the countryside if we let this Bill go through in its present form. The noble Lord has suggested that we may possibly lose this Bill if it has a major Amendment or an Amendment dealing with a subject that has been discussed in another place. I venture to suggest to your Lordships that, in fact, although important and dealing with an important matter, this is not a major Amendment, and that if it were put before the House of Commons as an Amendment accepted by the Government it might take possibly half a minute of time there. With regard to the other point, this has not been discussed in another place. It was in fact put down by a member on behalf of the Farmers' Union, who was unfortunately ill, and therefore it was not even considered. Those are the two points the noble Lord 325 put to us. I suggest to your Lordships that neither of them is valid, and therefore that we should press forward with this Amendment.
§ Resolved in the negative and Amendment disagreed to accordingly.
§ Clauses 15 to 23 agreed to.
§ Clause 24:
§ Power of statutory water undertakers to acquire land by agreement or compulsorily.
§ (7) A compulsory purchase order made under this section may authorize the purchase of any land belonging to the National Trust notwithstanding that such land is held by the Trust inalienably, but where any such order authorizes the acquisition of land so held inalienably or of any land forming part of a common, open space or allotment, the order shall, subject to the next following subsection, be provisional only and not have effect until it is confirmed by Parliament.
§ (8) So much of the last foregoing subsection as provides that any such order as aforesaid shall be provisional only and not have effect until it is confirmed by Parliament 'shall not apply where the order provides for giving in exchange for such land other land, riot being less in area, certified by the Minister of Agriculture and Fisheries (in the case of a. common or an allotment) or the Minister of Town and Country Planning (in the case of land held inalienably by the National Trust or an open space not being a common or an allotment) to be equally advantageous to the persons, if any, entitled to commoable or other rights and to the public:326
§ On Question, Whether the proposed new clause shall be there inserted?
§ Their Lordships divided:—Contents, 22; Not-Contents, 42325
|Reading, M.||Samuel, V.||Meston, L.|
|Wimborne, V.||Monkswell, L.|
|Carlisle, E.||Monson, L.|
|De La Warr, E. [Teller.]||Amulree, L.||O'Hagan, L. [Teller.]|
|Portsmouth, E.||Denham, L.||Rea, L.|
|Strafford, E.||Dorchester, L.||Saltoun, L.|
|Faringdon, L.||Strabolgi, L.|
|Easher, V.||Herlech, L.||Winster, L.|
|Simon, V. (L. Chancellor.)||Long, V.||Macmillan, L.|
|Margesson, V.||Ormonde, L. (M. Ormonde.)|
|Norfolk, D. (E. Marshal.)||St. Davids, V.||Rankeillour, L.|
|Northumberland, D.||Sankey, V.||Rushcliffe, L.|
|Stansgate, V.||St. Oswald, L.|
|Ailesbury, M.||Simonds, L.|
|Normanby, M.||Chesham, L.||Soulbury, L.|
|Salisbury, M.||Ebbisham, L.||Southwood, L.|
|Elgin, L. (E. Elgin and Kincardine.)||Stanmore, L.|
|Cavan, E.||Stratcona and Mount Royal, L.|
|Dundonald, E.||Greville, L.|
|Fortescue, E. [Teller.]||Hindlip, L.||Templemore, L. [Teller]|
|Iveagh, E.||Hindlip, L.|
|Jersey, E.||Jessel, L.||Thurlow, L.|
|Lucan, E.||Latham, L.||Wolverton, L.|
|Munster, E.||Lovat, L.||Woolton, L.|
§ Provided that—
- (a) before giving any such certificate the Minister of Agriculture and Fisheries or the Minister of Town and Country Planning, as the case may be, shall give public notice of the proposed exchange, and shall afford opportunities to all persons interested to make representations and objections in relation thereto, and shall, if he thinks it necessary, hold a local inquiry; and
- (b) the order shall provide for vesting the land given in exchange in the persons in whom the land acquired was vested, subject to the same rights, trusts and incidents as attach to the land acquired, and for discharging the land acquired from all rights, trusts and incidents to which it was previously subject.
§ 3.17 p.m.
§ VISCOUNT ESHER moved, in subsection (8), at the beginning, to insert "Except in the case of land inalienably held by the National Trust as aforesaid." The noble Viscount said: I hope this Amendment, which I am about to move, will be considered sufficiently small not to rock the Government to its foundations. When this Amendment was moved in another place, the Minister of Health endeavoured to maintain that there was no essential difference between National Trust 327 properties and common land, and that it was quite reasonable for National Trust land to be exchanged under the same method by which the Government proposed to exchange common land. Surely there can be no comparison between the two things. Commons are selected for no particular quality except a low agricultural value. They are, in fact, lands which nobody in particular wanted to enclose, so that one piece of land is very much like another. On the other hand, the properties of the National Trust have been selected from the point of view of natural beauty or historic interest and have, for the most part, reached the Trust as gifts from those who loved them and were ready to make sacrifices in order to preserve them.
§ The State has recognized the special character of these properties by Acts of Parliament drawn up in order to protect them, and has given the National Trust the power to declare these lands inalienable for all time. Mr. Keeling (in another place) gave as an example Runnymede, and I cannot see how the noble Earl is going to maintain that if we were to take Runnymede away from the nation and give the nation in exchange two fields near Egham, he would have treated the nation fairly, or that it would be the same thing to lose the historic interest of the land at Runnymede and get, in exchange, something which has no historic interest at all.
§ I would draw your Lordships' attention to the name National Trust. It indicates not only that its properties belong to the nation but that they are held in trust on behalf of those who gave them to the nation. The Government propose to give themselves the right to break that trust, to take away land which the owner gave and to substitute for it land which the donor did not give. The Government of course would plead necessity, that they cannot carry out their water schemes unless they have these powers, and necessity disregards trusts and knows no law. I do not know where the Government got the arguments from but they seem to me familiar and I do not like the sound of them. I would venture to suggest to the noble Earl that he would be on sounder and more English ground if he remembered the words of Burke: "If I cannot reform with equity I won't reform at all." beg to move.328
Page 26, line 23, at the beginning insert (" Except in the case of land inalienably held by the National Trust as aforesaid ").—(Viscount Esher.)
§ THE EARL OF MUNSTER
Clause 24 of the Bill gives power to statutory water undertakers to acquire land by two methods— either by agreement or by compulsion. If the land is to be taken by compulsion and objections are maintained, then a public inquiry has to take place in accordance with the proposals set out in the Second Schedule to the Bill. Land which is held inalienably by the National Trust can, it is true, be taken by a Provisional Order or by order of the Minister if there is other land offered in exchange, and if that other land is certified by the Minister of Town and Country Planning to be equally advantageous to the public. Again, if there is any objection in this particular sphere a public inquiry has to be held. It seems to me the body for which the noble Lord speaks and whose good work we are all acquainted with is really amply safeguarded.
Let me see if I can explain exactly what the Minister intends to do. It is quite impossible to give equally advantageous land in exchange for lands of unique historical importance but what my right honourable friend is concerned with is this. Suppose that on a portion of property now in the hands of the National Trust there are a group of cottages situated at a high level on the land and they could only be satisfactorily provided with public water if a tank was put in on a higher piece of land above the cottages. If in fact that happened to be the only place where it could be effective in order to give the cottages concerned their pipe supply of water, that would be done. That is all my right honourable friend intends to do. He is not of course in any sense suggesting that he should take enormous acres of beautiful countryside that has been left by some man or woman to the National Trust to be held forever for the benefit of the British public. Indeed, I will go so far as to say that my right honourable friend is very much against taking any land from the National Trust unless it is absolutely essential. The example which I have given is the one which I know my right honourable friend has at the back of his mind, but I assure your Lordships there is no intention whatever that the Minister 329 should ever take any large area of land which is at present in the hands of the National Trust. I hope therefore my noble friend will see his way to withdraw this Amendment. I appreciate the fear which he might have that it is the intention of the Minister to take a large portion of such land, but I assure him the Minister has no such intention.
If the noble Earl was the Minister we could accept exactly what he says and leave these priceless heritages safely in his hands, but unfortunately our experience of Government Departments is very different. My noble friend Lord Esher mentioned Runnymede. I know something of what had to be done in taking the initiative in preventing Stonehenge from desecration. Our greatest difficulty there was the Air Ministry, which had some hideous buildings on the skyline. Those buildings were of no use whatever, being relics of the first world war, but they completely spoiled the wonderful escarpment and the skyline. Yet the Ministry persistently refused to remove them. Eventually, by enlisting all sorts of authorities on the highest level, we got these accretions taken away. In the case of Stonehenge we raised a large sum of money, a great portion of which came from the United States of America. Americans were as anxious as we were to preserve this unique monument of the downs. If it should happen that there were cottages in Stonehenge that required a water supply, from what we know of Government Departments we know they would not hesitate at all. The relics of the Druids would mean nothing to them. They would say, "There is nothing in the regulations about that." Or take the case of Lulworth. Lulworth is not a place of unique historic interest, it is only beautiful, and we had the very greatest difficulty in preventing it being turned into a tank training ground. I am only calling attention to this as an example of soullessness and lack of imagination and vision and of an historic and national sense on the part of Government bureaucratic offices. I think the words of this Amendment are necessary and I should support them.
It is as much as one's life is worth to press any Amendment on this Bill, therefore I feel constrained to accept the noble Earl's suggestion, 330 especially as I understand he proceeded to give what amounts to a Parliamentary undertaking that the provision will be administered in the reasonable manner which he has described. That being so I beg leave to withdraw my Amendment.
§ THE EARL OF MUNSTER
Certainly I give the noble Viscount that assurance and I am delighted to do so.
§ Amendment, by leave, withdrawn.
§ Clause 24 agreed to.
§ Clauses 25 to 6o agreed to.
§ Clause 61:
§ Saving for protective provisions in other Acts.
§ 61. Except with the consent of the persons interested, no order made under Section thirty-two of this Act shall abrogate or affect—
- (a) any provision contained in a local enactment for the protection or benefit of any specified person or class of persons or body of persons, whether incorporated or not;
- (b) any provision contained in a local enactment for conferring on or preserving to the public rights of enjoyment of air, exercise and recreation on land or rights of access to land for those purposes or for conferring any right of way;
- (c) any provision contained in a local enactment with respect to the quantity of compensation water to be discharged into any watercourse or the periods during which or the manner in which such compensation water is to be discharged.
§ 3.28 p.m.
§ LORD WINSTER, who had given Notice of five Amendments to this clause, moved, at the end of paragraph (a), to insert "or any provision contained in a local enactment with respect to the discharge of compensation water into any watercourse or the periods during which or the manner in which such compensation water is to be discharged." The noble Lord said: The Amendment I am proposing to Clause 61 involves also certain other clauses of the Bill. I gather that it would be for the convenience of the noble Earl if I deal with the whole matter at once. As it will be for my convenience also I am very happy to do so. What my Amendment is concerned with is the preservation beyond all possible doubt of the public's right of access to water catchment areas. I shall have to refer to the Birmingham clauses 'by which the legal rights of the public to access for air, exercise and recreation to commons passing into freehold possession of water takers, have been preserved. These clauses have preserved to the public a 331 right of access to some 200 square miles, and as in this country the public have access only to one-tenth of the area occupied by commons and hills, to preserve 200 square miles of them is of some importance.
The present Bill gives the Minister the power to repeal such clauses. He has power to do so under Clauses 33, 23 (I) (a), and 9 (3). Clause 33 is the principal one of these clauses. Under that clause the Minister may— these are the words—
by order repeal or amend any local enactment relating to the supply of water …
Conditions under which water is collected obviously relate to its supply, and consequently any undertaker could appeal for repeal or limitation of the Birmingham clauses on such grounds, for instance, as that there would be risk of pollution unless the statutory rights of the public to access to the catchment area were withdrawn or limited. It is important to note that this power of repeal of the Birmingham clauses was not contained in the Bill as introduced. What was then Clause 59 and is now Clause 61 expressly limited the Minister's powers. It said that no repeal should abrogate or affect any provision of a local enactment conferring public rights of enjoyment of air, exercise and recreation. But having got over what might have been rather an awkward fence in this way on introducing the Bill, the Minister then proceeded to withdraw the limitation during the Committee stage and unfortunately during the proceedings in Committee the effect of his Amendments was not recognized, so that the Minister got away with it.
§ On the Report stage, when the inwardness of what had been done in Committee had been perceived, the Minister stated that he had no intention of issuing any order so to amend local Acts that the Birmingham clauses and the legal rights of access they conferred would be abrogated or affected. That is merely a statement of good intentions on the part of the present Minister. Like cooks and caretakers, Ministers come and go. It is not a question of the good intentions of the present Minister. The fact remains that the legal power to amend these local orders and affect the Birmingham clauses are in the Bill. I agree that if a serious objection were raised to any Order made under Clause 33 and maintained at a public 332 inquiry the Order must be confirmed by Parliament. That is in Clause 33, but what that amounts to is simply that voluntary societies must do the work which should be done by Parliament. In my opinion vigilance on the part of voluntary societies is not a satisfactory form of protection. That is merely transferring the onus of protection which in the past had laid upon Parliament to the backs of voluntary societies, which will have to discover the meaning of an Order, which is not always easy, which will have to get a local inquiry held and will then have to get the whole business through Parliament. Those are very heavy tasks indeed to throw upon the backs of voluntary societies.
§ Parliament by this clause throws off its duty of initiative and its duty of protecting public rights and transfers that duty to voluntary societies. In the 1943 Bill, which presented an exactly similar problem, the Minister admitted that this was an insufficient protection and he accepted an Amendment to remedy it. But in the Bill which we are now considering we are back at the state of affairs which in 1943 the Minister agreed afforded only an insufficient protection. What is contained in Clause 33 permits the repeal of any local enactment relating to the supply of water and those words are wide enough to permit anything. The 1943 Bill gave us a perfectly firm commitment; the 1945 Bill gives us only a verbal assurance. I submit that in matters of such importance as this affecting the public right of access to land for air, recreation and exercise, a most important legal right, a verbal assurance only is an objectionable and unsatisfactory way of dealing with the matter. Therefore it seems to be right to bring forward Amendments again in a form which will bring the Bill as regards Clause 23 (1) (a) into line with what the Minister expressly accepted in 1943. Under the terms of my Amendment Clause 61 would expose the Birmingham clauses to Clause 23 (1) (a) and would protect them from Clause 9 (3) and Clause 10 (3) and above all from what is to my mind the highly objectionable Clause 33. Words which the Minister himself wrote into what then was Clause 59 and is now 61, which was opposed at Second Reading, gave the public absolute protection. The Minister obviously saw no objection to the public being given protection.333
§ I think we ought to have unqualified protection, but my Amendment is modest. If it is accepted I agree that it only gives qualified protection. It in fact gives the Minister more than he asked for in the first draft of the Bill. That being so, I ask how the Minister can object to this Amendment. If he does object then let him go back to his original intentions and have unqualified protection, leaving any necessary minor Amendments to be dealt with, as they quite well could be, by short private Bills, and not taking away pubic access rights conferred by Parliament. If the Minister's assurance is to hold good for all time, why not put it into the Bill? It is the written word that remains and not the good intentions of a temporary Minister. My Amendments give effect to the considerations which I have ventured to lay before your Lordships. I beg to move.
Page 55, line 40, at end insert ("or any provision contained in a local enactment with respect to the discharge of compensation water into any watercourse or the periods during which or the manner in which such compensation water is to be discharged.")—(Lord Winster.)
§ THE EARL OF MUNSTER
The Amendments which stand in the name of the noble Lord, Lord Winster, were put down, as I understand it, to secure that what is commonly called the Birmingham clause shall not be interfered with. I quite frankly admit that I agree generally with the spirit which prompted the noble Lord to move this Amendment, but I hope in my reply to succeed in persuading him that the Amendment is not really necessary and that my right honourable friend has no intention whatever of interfering with the principle underlying what is known as the Birmingham clause. If I may make just one observation on Clause 33, which my noble friend mentioned, I would like to say that in point of fact he has ample safeguard. First of all, there is the Minister's assurance, and secondly, there is the fact that an Order made under Clause 33 of the Bill is provisional. It can have no effect until it is confirmed by Parliament. Clause 33 or a similar clause was not included, it is true, in the 1943 Bill. Indeed I have been told that there has never been a clause such as the Birmingham clause included in any Water Bill or its predecessors, the Water Undertakings Bills in 334 1939 or 1943. Indeed, the very insertion of such a clause within the Bill must, I think, automatically refer to the specified tracts of land, and is not really appropriate to any Act of Parliament which deals with the general subject of water as a whole.
There was, and there still is, in Clause 61 of the Bill, provision designed to safeguard the Birmingham clause when the Minister comes to apply the new waterworks code, which is put in the Third Schedule to the Bill. In applying that code to a water undertaking he will have to review and to modify any existing local Acts or Orders. As the noble Lord's Amendments are drafted, they would prohibit the Minister from making an Order under any provision of the Bill except Clause 23, which authorizes the construction or acquiring by agreement, the alteration or continuance or maintenance of waterworks and works connected therewith, cutting down in any way the rights of access which are secured to the public under the Birmingham clause.
My right honourable friend went to the trouble— and indeed he went to considerable pains in another place— to show that it might be necessary in very rare cases to alter the Birmingham clause. But I think he went so far as to say that the only time he intended to alter it was when it was not practicable for some work to be executed anywhere except on some small piece of land to which the Birmingham clause is appropriate. I give as an indication the erection of a small pumping station, or some such establishment. I think that the guarantee which was given, that there was no question of any arbitrary or wholesale wiping out of these very valuable and useful provisions in the Birmingham clause, was sufficient for the purpose. I might add that these Amendments which the noble Lord seeks to include in the Bill, give the appearance of importing an express power to interfere with the Birmingham clause. The Minister does not seek the appearance of any express power, and he would, himself, not wish to have these particular words thrust upon him. I can say no more than to give the assurance which was given by my right honourable friend in another place, that it is not intended to destroy the Birmingham clause in every Water Bill which is passed through Parliament, but it is only in the very small and limited number of cases where land 335 is required for a pumping station and such-like work that my right honourable friend would then seek to amend the Birmingham clause so far as it affected that particular area.
§ LORD WINSTER
As I forecast, in my remarks, that he would do, the noble Earl has referred to the fact of his right honourable friend having no intention of doing certain things. He speaks about the provisions of Clause 33 being guaranteed by a verbal assurance which has been given by his right honourable friend. The noble Earl also said in reference to this matter, that the Order would be provisional if opposed. As I pointed out in my earlier remarks, the onus of opposing an Order is being shelved by Parliament and is being thrown on to the backs of voluntary societies, which, obviously, will be at great loss in this matter. The noble Earl referred to an Order being made under Clause 33 of this Bill.
But let us look at the words. The original wording was:No repeal effected by or under this Act…shall abrogate or affect any provision contained in a local enactment for conferring on or preserving to the public rights of enjoyment of air, exercise and recreation.Those words were clear and categorical, but they have been changed to this:Except with the consent of the persons interested, no Order made under Section thirty-two of this Act shall abrogate or affect any provision contained in a local enactment for conferring on, or preserving to the public rights of enjoyment of air, exercise and recreation. …If we come to look at Clause 32 we find that that only provides for embodying the third Schedule, which deals with the modernization of waterworks codes— in other words Orders which the Bill authorizes. The third Schedule cannot possibly touch the Birmingham clauses, so Clause 61, so far as that matter is concerned, concedes literally nothing at all.
I agree with the noble Lord— and indeed my Amendment concedes the point— that there is no objection to the Birmingham clauses being varied or abrogated to enable, for instance, extensions to reservoirs being carried out, or to permit of the erection of cottages necessary for workmen whose employment is connected with the reservoirs. That, as I say, is correct, and my Amendment makes allowance for 336 that fact. Certainly there is no objection to the Minister varying the Birmingham clauses by Order, to permit of necessary works being carried out.
Really all that fie noble Earl's remarks on this head amount to are this. He repeats the assurance of his right honourable friend that it is not intended to do anything at all at variance with the Birmingham clauses except in regard to such minor matters as those that I have agreed it is appropriate he should have a right to do. The noble Earl is only repeating the verbal assurance given by his right honourable friend. I can only repeat that in a matter which concerns rights which have been granted to the public by Parliament, I do not think that a verbal assurance on the part of a Minister is sufficient. This assurance which is given should be translated into words in the Bill which will make it binding upon his successors.
§ On Question, Amendment negatived.
§ Clause 61 agreed to.
§ Remaining clauses agreed to.
§ Schedules agreed to.
§ Bill reported, without Amendment.