HC Deb 22 June 1868 vol 192 cc1857-70

Lords' Amendments considered.

Amendments, as far as the Amendment Leave out Clause 46, agreed to.

MR. MILNER GIBSON

said, he wished to call the attention of the House to the Amendments which had been made in "another place." Two years ago the late Government had brought under consideration a Bill for facilitating the establishment of oyster fisheries. Lord Derby's Administration took it up, devoted much attention to it, improved it and passed it into a law. It was working well. Many applications had taken place under the Act for the establishment of oyster fisheries, and so far as he knew, the measure was giving general satisfaction. In the Sea Fisheries Bill it was thought desirable that all the statutes relating to sea fisheries should be consolidated into one, and therefore the Oyster Bill was put into the Sea Fisheries Bill as a matter of consolidation. Important Amendments had been made in the Bill in the House of Lords, which, if adopted by Parliament, would go far to defeat all the main objects of the measure intended to encourage the establishment of oyster fisheries. It might be right enough to amend, but it was not the proper way of doing it in a Consolidation Bill without notice or discussion. If the Oyster Fisheries Act was to be repealed, it should be brought under the consideration of Parliament; the object should not be effected in an indirect manner by the insertion of Amendments in a consolidating Bill by the other House of Parliament. The Bill enabled persons to appropriate unproductive, useless areas on the sea-shore for the cultivation of oysters; but care was to be taken that al! proprietary and other rights should be respected, that all parties concerned should have due notice and an opportunity of being heard against any such appropriation of the sea-shore—not only before the Board of Trade, but if they thought fit before a Select Committee of the House, as in the case of a private Bill. There were many parts of the sea-shore which might be appriater to oyster beds without injury to anybody; but unless private rights, frequently of undefined and valueless character, were barred, after persons had received a grant and gone to a great expense in laying down oysters the persons who had rights of dredging might come and dredge them all up. He would bar any such right; but he would not do so without notice, and consent or compensation. What, then, had been done? The House of Lords said that it was right that areas of the seashore should be appropriated to oyster fisheries; but they inserted clauses to the effect that the Board of Trade Order should bar no rights except those of parties who had given their consent. Now, what would be the effect of this? There might be the inhabitants of a village who might have undefined prescriptive rights though of no real value, whose consent could not be obtained, and they might lie by whilst the Order was obtained, and then after the unfortunate grantee had invested his money they might come forward and say that their consent had not been obtained, and therefore they had the right to take the oysters. Certain Scotch proprietors appeared to think that there was some intention to interfere with their foreshore rights; but they would find that this measure for the promotion of the oyster fisheries would be most beneficial to them in the end. He thought that the Lords' Amendments ought to be rejected—in the first place, because what they proposed to do was not a fair mode of defeating the intentions of the Legislature when it passed the Oyster Fisheries Act. The clause in that Act which he supported was the law of the land. If, however, it could be shown that under the existing law adequate compensation was not given for the interference with the rights of any person where they were affected injuriously by any provisional Order of the Board of Trade, he should be ready to accede to an extension of that law in order to secure that object. The Lords' Amendments did not provide for the compensation of individuals for such an infringement of their rights, and, therefore, he moved that, instead of those Amendments, a clause be inserted in the Bill providing that the Lands Clauses Acts should be deemed to be incorporated in every Order of the Board of Trade made under this Act, and that grantees should make full compensation under the Lands Clauses Acts to all persons whose rights of fishing or any of whose rights were injuriously affected by any Board of Trade Order, or by any confirming Act, under the Oyster Fisheries Act of 1866.

Leave out Clause 46, the next Amendment, read a second time.

MR. STEPHEN CAVE

said, he could not deny that he preferred the clauses as they stood in the Bill passed by that House, and he certainly agreed with the right hon. Gentleman the Member for Ashton that this alteration would to some extent curtail and fetter the operation of the Board of Trade, and so far impede the granting of Orders for oyster fisheries. At the same time there was considerable force in the arguments which induced the House of Lords to adopt these Amendments—namely, that a Government Department ought not to have the power of interfering with or taking away any property or right, however small or ill-defined, but that such power ought to be vested in Parliament alone. Inserting the Amendments in a consolidating Act might not have been the best way of proceeding; but they knew that it was the constant practice of Parliament to unite amendment with consolidation, and he did not think that they could find fault with the House of Lords on such a ground. The House of Lords thought that the power ought to be vested in Parliament alone to take away rights, and that it would be hard to call upon people to defend their rights before Parliament because the Board of Trade had made an Order which would curtail those rights. Very high legal authority had declared that the clauses in the Oyster Fisheries Bill were hardly constitutional, and ought not to have passed in 1866. That was a question which he must leave the right hon. Gentleman to settle with a former and probably future Colleague of his own; which, if they might judge from the ordinary sources of information, he would not find a very easy task. On the other hand, it might be said that in practice the present Board of Trade had been so careful of existing interests that not only had there been no objections on that score in respect of any of the Orders already issued, but they had drawn upon themselves complaints, he might even say taunts, from people speaking and writing in the interest of applicants for grants of oyster fisheries, on the ground of their being unduly scrupulous; so that the Board of Trade was not such an instrument in the hands of a despotic Government for the confiscation of property as it had been represented to be. Still, it was clearly contrary to the usage of law or Parliament that the property or rights of any persons should be left to the discretion of the occupants of a Government Department, who might not always be equally scrupulous. The effect of the Lords' Amendments would doubtless be that the only cases in which they would be able to grant oyster fisheries would be those to which no opposition was made. But then they should still be able to give full protection to such fisheries when made, which was probably the original intention of legislation on this matter. He was afraid there would be a more serious impediment; thrown in the way of regulating fisheries, and especially of protecting places like Boston Deeps from wanton destruction of mussel spawn. The right hon. Gentleman proposed as an alternative the incorporation of the Lands Clauses Acts, but that would hardly meet the case, because those Acts simply provided for compensation for property compulsorily taken, whereas the objection made to the Bill was, that no power at all to take compulsorily ought to be given by it. As he had already said, he regretted the alteration which had been made. On the whole, however, he should be inclined to recommend the House to defer to the anxiety exhibited in "another place" for the protection not only of the property of great proprietors—for that was hardly a fair way of putting it—but of the rights of the general public in this matter, and agree with those Amendments, rather than run the risk of losing the Bill altogether; and then, in case the Act proved unworkable and it were found necessary to give more power to the Board of Trade, it might be done by a future substantive measure.

SIR ANDREW AGNEW

said, he believed that the acceptance of the Lords' Amendments would counteract the benefit conferred by the Act passed two years ago. He trusted that in all that was done with regard to this subject, care would be taken to respect in every way the rights of the foreshore proprietors.

MR. SHAW-LEFEVRE

said, he would support the Motion made by his right hon. Friend the Member for Ashton. The Act of two years ago was passed in consequence of the recommendations made by a Commission appointed to inquire into the subject, and the only complaint that had since been made with regard to the working of that Act was that the Board of Trade had put its provisions into force too cautiously. It was preposterous to imagine that the House of Lords would, if the Amendments were rejected, throw out the Bill, because by so doing they would leave the law precisely in the state of which they complained. He therefore trusted that the House would not consent to Amendments which the Vice President of the Board of Trade did not attempt to defend, and which would entirely defeat a Bill which had been very beneficial to the public, and was only objected to by certain Scotch Lords, who, not content with owning a great part of Scotland, wished to extend their imaginary rights even into the sea.

GENERAL DUNNE

said, he hoped that the House would accept these clauses which had been inserted in the Bill with the strictest attention to public rights, and in thorough harmony with the spirit of the Constitution.

THE ATTORNEY GENERAL

said, that as the Bill originally stood owners of foreshore were liable to deprivation of their rights by an Order of the Board of Trade, confirmed by an Act of Parliament, and the only way in which they could preserve their rights was by defending them in the passage of the Act through Parliament. The House of Lords perceived that this was a very strong piece of legislation, and they now endeavoured by these clauses to provide a remedy; for it certainly was hard that a man who had bonâ fide rights over a fishery should be deprived of those rights, however desirous he was of preserving and exercising them, or be compelled to oppose the passage of a Bill through Parliament.

MR. LAWSON

said, that the working of the Act had been attended with great benefit in Ireland, and it was unreasonable that so well-considered a measure as this had proved to be should be defeated by a side-wind, as now contemplated by the other branch of the Legislature. It appeared to him that the tendency of the Amendments was not so much to protect real rights as to give a colour to imaginary rights, and thus occasion useless litigation.

MR. WALDEGRAVE-LESLIE

said, he agreed with the right hon. Member for Ashton-under-Lyne (Mr. Milner Gibson) as regarded oyster fisheries; but must remind him that other rights were affected by the clause in question. For instance, Hastings had an ancient charter giving its corporation a right to take shingle from the foreshore to mend the roads; the Board of Trade, however, instead of inquiring as to the right exercised under this charter, sent its circular ordering coastguard officers to report cases of removal of shingle, and thus interfered with the unquestionable rights of the people. The question was a serious one for Hastings, because metal for the roads other than shingle cost the corporation almost as much as coal.

MR. COLERIDGE

said, he feared the Attorney General argued on the erroneous basis that it was desirable to grant rights for compensation, and to treat the matter entirely as a private concern, without admitting those large considerations to which a great Government Department ought always to give due weight. The power of the Crown over foreshores had been vested in the Board of Trade, and administered by that Deportment to the general satisfaction. He highly approved the Circular of the Board recently presented to the House, because it dealt with foreshores on the principle that the public was concerned in them. The case quoted by the hon. Member for Hastings (Mr. Waldegrave-Leslie) did not affect the expediency of issuing a general Order by the Board of Trade. No doubt a simple representation from the Corporation of Hastings would have secured a due consideration for its rights under the Royal Charter.

THE SOLICITOR GENERAL

said, he thought the hon. and learned Member for Exeter (Mr. Coleridge) had failed to appreciate the point under discussion. The more careful legislators in the House of Lords, with whom he agreed, objected to depriving subjects by force of rights they had long enjoyed. [Mr. MILNER GIBSON: There is compensation provided for.] That was precisely what the Lords objected to. Rights were to be taken away by force and compensation given. The only argument used against the view taken by the other House was that some parties would lie by by design while their rights were being dealt with; but the Lords said that if the rights of individuals were to be interfered with it should be done by an Act of Parliament, and not by a Government Department.

MR. H. BAILLIE

said, he trusted the House of Lords' proviso would be maintained as far as Scotch foreshores were concerned; but if the Irish Members parti- cularly wished to have their foreshores placed entirely at the disposal of the Board of Trade, by all means let it be so.

SIR FRANCIS GOLDSMID

said, that parties whose rights were affected had ample means for protecting their interests. Their Lordships appeared to attach some peculiar sacredness to the rights of foreshores which entitled them to be treated in a different manner to that in which Parliament had acted in sanctioning inclosures and all public improvements.

MR. CRAUFURD

said, he must complain very strongly of the language of the Circular drawn up by the Board of Trade. The Crown having always failed to establish their rights to the foreshores in Scotland in a straightforward manner, it was now sought to circumvent the proprietors of foreshores by the systematic course of action laid down for the Department.

MR. M'LAREN

said, it was altogether a mistake to suppose that the Board of Trade were grasping at any jurisdiction. The Bill merely recited the law as it now stood; and it was the other House of Parliament who wished to alter the law, and deprive the Crown of its rights. The Crown in this case was but the personification of the public interests, and the Board of Trade, in the name of the Crown, were merely protecting the public. He recommended the House to let well alone, and not to alter the existing state of the law.

MR. MILNER GIBSON

said, he wished to explain. He had been misunderstood by the learned Attorney General. The Motion affected no rights, altered no proprietary rights, and set up no titles. His only object was to apply to rights over the sea-shore the same formula which was applied to rights over land—namely, consent or compensation. But their Lordships would have no compensation.

Motion made, and Question put, "That this House doth disagree with The Lords in the said Amendment."—(Mr. Milner Gibson.)

The House divided:—Ayes 125; Noes 133: Majority 8.

Amendment agreed to.

Amendments, as far as the Amendment Clause B, agreed to.

MR. STEPHEN CAVE

, in moving the insertion of Clause B, as inserted by the Lords, said, he should like to say a few words on this Amendment. In 1839 a Convention was concluded with France fixing a close time for oyster fishing in the seas between the United Kingdom and France from the 30th of April to the 1st of September. The Convention was held not to apply to the sea within the three-mile limit, nor to seas beyond the English Channel. This was shown by the case of the oyster dredgers on the East Coast of England, who defied the authorities to prevent their taken their dredges out of port and fishing the whole year round beyond the three miles; and by the instance of the Ark-low Banks, off Ireland, on which, according to the Report of the Irish Fishery Board for 1856, the Irish dredgers fished during the close months, from January to September. So that the position under the old Convention was this: a close time applicable to the Channel alone, and binding only on the French and English, because, the open sea being free to all, the Dutch or Belgians might have fished there with impunity at any time. This close time, even in the Channel, was practically disregarded by the English fishermen of the East Coast, as against them it was enforced only by cruizers, which the dredgers managed generally to evade. It was operative against the South Coast fishermen, who complained grievously of the unequal treatment. For these and many other reasons this system of quasi game laws in the open sea was condemned by the Deep Sea Fishery Commisioners appointed by the late Government; and their views on this point being adopted by the present Government, negotiations ensued with the French Government, with the object of bringing about an entire abolition, or, failing that, a relaxation of the close time. It was found that the French were very unwilling to relax the rule, not because they cared about the deep-sea beds, with respect to which they to some extent shared our views, but because they hoped by these means more effectually to preserve the beds within their territorial limit. However, our Government succeeded in striking off six weeks of the close time in the Channel, leaving the law in other parts precisely as before. There was, therefore, no pretence for saying that we took care of ourselves in the sense in which that expression had been used; and, moreover, any danger there might be that the Irish deep-sea beds might be fished during the close time in the Channel by dredgers driven during its continuance from their ordinary grounds existed before this new Convention was concluded, and had been practically dimin- ished by the new Convention, inasmuch as I the close time had been cut short by six weeks; and he need scarcely say that if the Bill were thrown out, or the Convention suspended, and the old Convention consequently ipso facto revived, the Irish banks would be exposed to the danger of which the Irish Members were now afraid, for six weeks longer. Whatever might be the ancient doctrine of mare clausum, or property in the bed of the sea, an opinion had been given by the Law Officers of both countries that the Irish Fishery Board never had any authority outside the three-mile limit; and when it was represented that the interests of Ireland were sacrificed it should be remembered that the Irish Sea was left in precisely the same position as the Bristol Channel, and the whole of the seas washing Scotland and England beyond the English Channel, in all of which were valuable oyster beds. Moreover, Ireland was left in this better position according to her own views, inasmuch as she had the power of completely regulating the fisheries within three miles. It had been asked, why should we not have a close time for oysters as well as for grouse or partridges? But oysters did not sit upon eggs, and everyone knew, in reference even to game, that close time was of no use, unless sufficient birds were left to breed. It was not dredging in close time which had diminished the supply of oysters, but partly failure of spat and partly over-dredging in open time. Hence the scarcity was felt in France, where close time was strictly observed. When oysters were taken in a sick, unhealthy state, it was when they had just spawned. Like other fish, they were wholesome shortly before spawning, when their capture, of course, still more prevented increase of brood. But he must say, with all deference, that this desire on the part of Ireland to obtain powers to which she had no claim by law, and which she had never exercised, ought scarcely to have been made a ground for impeding a Convention concluded nearly two years ago with a friendly Power—a Convention in which that Power made considerable concessions, and the principles of which had received the approbation of the late as well as of the present Government. It would not have been creditable to this country to inform France that we could not carry out our engagements because a section of Parliament endeavoured, by opposing this Bill, to obtain concessions at variance with the principle of entire freedom in the open sea, to which we endeavoured throughout the discussions to obtain the assent of the French Government. In order to avoid this the noble Duke the President of the Board of Trade reluctantly consented to the introduction of this clause, to which he moved that this House do now agree— The Irish Fishery Commissioners may from Time to Time lay before Her Majesty in Council Byelaws for the Purpose of restricting or regulating the dredging for Oysters on any Oyster Beds or Banks situate within the Distance of Twenty Miles, measured from a straight Line drawn from Wicklow Head to Carnsore Point on the Coast of Ireland, but outside of the exclusive Fishery Limits of the British Islands, and all such Byelaws shall apply equally to all Boats and Persons on whom they may be binding. It shall be lawful for Her Majesty, by Order in Council, to do all or any of the following things—namely, (a) To direct that such Byelaws shall be observed; (b) To impose Penalties not exceeding Twenty Pounds for the Breach of such Byelaws; (c) To apply to the Breach of such Byelaws such (if any) of the Enactments in force respecting the Breach of the Regulations respecting Irish Oyster Fisheries within the exclusive Fishery Limits of the British Islands, and with such Modifications and Alterations as may he found desirable; (d) To revoke or alter any Order so made. Provided that the Length of Close Time prescribed by any such Order shall not be shorter than that prescribed for the Time being by the Irish Fishery Commissioners in respect of Beds or Banks within the exclusive Fishery Limits of the British Islands. Every such Order shall be binding on all British Sea-Fishing Boats, and on any other Sea-Fishing-Boats in that Behalf specified in the Order, and on the Crews of such Boats. Clause B, the next Amendment, read a second time.

MR. GREGORY

said, that Ireland had great cause to complain of the three-mile limit, because the greater portion of some of their most valuable oyster beds were outside that distance, and consequently the great difficulty was how to protect that portion which was outside the municipal limit. He objected to the power of making by-laws being taken from the Sea Fisheries Commissioners and placed in the Board of Trade. At present every person interested in the oyster fishery had full opportunities of making objections, and in that respect the system had been found to work well. But it was now proposed to put an end to that system, and instead of their being one set of by-laws and one uniform limit, the Bill would create two limits, to be regulated by two sets of by-laws; a state of things that could only produce confusion. The effect of the Amendment he proposed would be that the by-laws for both limits should be sanctioned by the Lord Lieutenant of Ireland in Council. The hon. Member concluded by moving to leave out in line 2, the words "Her Majesty, and to insert in their place, "Lord Lieutenant or other Chief Governor of Ireland."

Amendment proposed, in line 2, to leave out the words "Her Majesty," in order to insert the words "the Lord Lieutenant or other Chief Governor of Ireland,"—(Mr. Gregory,)—instead thereof.

MR. SHAW-LEFEVRE

said, that as one of the Members of the recent Fisheries Commission, he desired to observe that, in the opinion of Professor Huxley and Mr. Caird and himself, no close season was desirable at all, and that the late failure in the supply of oysters was attributable to the exceptionable state of temperature that had been experienced, and other extraneous circumstances, and not to over-dredging or to the non-enforcement of a close season. The Commissioners them-selves were therefore willing to do away with the close season altogether. But the French Commissioners with whom they came in conference, in negotiating the new Convention, though of the same opinion themselves, represented that the French fishermen were not yet prepared for so great a change; and upon this representation the Commissioners agreed not to recommend the abolition of the close season, but that it should be shortened from four months to two and a half months. It was also agreed that the limits within which the close season should be enforced should be very nearly the same as those under the old Convention of 1844, that is to say, the English Channel only, and not the East Coast, or the Irish Channel, or the Irish Coast. The line was drawn from the North Foreland to Dunkirk, and from Land's End to Ushant. It was not therefore because they believed in the advantage of a close season that this limit had been agreed upon; in fact the close season was to be confined to as narrow limits as possible. He apprehended that the same policy which the Commissioners thought best for the East Coast of England was also best for Ireland. It could not therefore be said that they had neglected Ireland. But as there was a difference of opinion on this important subject among the Irish Fishery Commissioners, as there was a certain advantage in trying two opposite systems, it was not his intention to oppose the Amendment adopted by the House of Lords, giving to the Irish Commissioners the power of making by-laws as regards the three-mile limit, and also, under certain conditions, as regards the fisheries beyond that limit. He thought, however, that the Queen in Council ought to have the supervision of such by-laws.

GENERAL DUNNE

said, that the views of the Irish people had not been adequately represented by the Commissioners. The most valuable part of the Irish fisheries was beyond the three-mile limit. Regard ought to be paid to the wishes of the people concerned rather than to the opinions of Professor Huxley and other theorists, who knew nothing of the matter. When the Lords gave the twenty-mile limit it was to have been expected that they would place the whole twenty miles within the jurisdiction of the Irish Commissioners, instead of leaving seventeen miles subject to Her Majesty in Council. Could there be anything more absurd than having two rules with regard to close time within the twenty miles? The three-mile limit was a modern invention assumed by lawyers; but the Government had over and over again exercised jurisdiction to the extent of the wider limit; and it did not follow because there were fisheries within it that they were to be open to the whole world.

MR. BLAKE

said, he must remind the hon. Member for Reading (Mr. Shaw-Lefevre) that some of the highest authorities on the subject—such as Mr. Barry, the Irish Commissioner, who understood the oyster question before the hon. Gentleman was born, Mr. Burchell, author of the able and valuable work, The Harvest of the Sea, Mr. Harry Long, chairman of one of the most successful oyster breeding companies yet established in England, and Dr. Frank Buckland, the eminent naturalist, agreed in thinking that it was of the greatest importance to protect the oyster fisheries during spat time. So convinced were the Irish fisherman of the same fact, that they had voluntarily established a close time, and had quite resolved not to be parties to killing the goose that laid the golden eggs. For his own part, he was inclined to think that the present want of oysters was owing partly to causes connected with temperature, but partly also to the system of over-dredging which prevailed so extensively. During the Whitsuntide Recess he had paid a visit to two or three of the best oyster fisheries in the kingdom; he found at all of them a great want of spirit, and he was convinced that unless the oyster fishery was properly protected by legislation its deficiency next year would be felt even more severely. Ireland was better adapted than any other country for the successful culture of oysters; but if the beds were dredged without being replenished they would soon be exhausted. The Irish Members were evidently unanimously in favour of a closer season, and he hoped that the right hon. Gentleman opposite would yield to their united opinion.

MR. STEPHEN CAVE

said, it was shown in 1856 that the Irish fishermen did not observe close time. But the question really before the House was this, whether Her Majesty should or should not be ousted of her authority over the Irish seas; and whether the Lord Lieutenant should for the first time in history be endowed with an authority extending beyond Ireland? That would be the practical result of the Amendment of the hon. Gentleman opposite. It should be remembered that the Bill only proposed that by-laws enacted by the Irish Fishery Commissioners should be subject to the sanction of the Queen in Council. There could be no conflict between the authorities, for it was provided that the close time should be the same both within and without the three miles limit, within the lines laid down in the clause already adopted by the House, and the by-laws, when sanctioned by the House, would be enforced within the whole area by the Irish Commissioners.

Question put, "That the words proposed to be left out stand part of the Clause."

The House divided:—Ayes 75; Noes: 46: Majority 29.

MR. GREGORY moved to increase the penalties to a maximum of £50 and a minimum of £10.

Amendment proposed, in line 13, to leave out the word "twenty," in order to insert the word "fifty,"—(Mr. Gregory,)—instead thereof.

MR. STEPHEN CAVE

said, that if anything, £20 was too much, as under the Act 5 & 6 Vict. c. 106, the Irish Fishery Commissioners could only impose a penalty of £5 for such offences within three miles; and it would be most unreasonable that they should be allowed to impose ten times that amount outside the three-mile limit.

Question, "That the word 'twenty' stand part of the Clause," put, and agreed to.

Clause B agreed to.

Subsequent Amendments to be taken into Consideration upon Thursday.