§ If the local authority, or medical officer, or sanitary inspector have reasonable grounds for believing that a nuisance exists in any premises, such local authority, or medical officer, or sanitary inspector may demand admission for themselves, the chief constitute or superintendent of police, or any other person or persons whom the local authority may desire to enter and inspect such premises, and, if necessary, to open up the ground of such premises, or for any or all of them, to inspect the same at any 791 hour between nine in the morning and six in the evening, or at any hour when the operations suspected to cause the nuisance are believed to be in progress or are usually carried on; and may cause the ground or surface to be opened, and the drains to be tested, or such other work to be done as may be necessary for an effectual examination of the said premises: provided always that if no nuisance be found to exist, the local authority shall adequately restore the premises at their own expense, and if admission be refused, the local authority, or medical officer, or sanitary inspector may apply to the sheriff, or to any magistrate or justice of the peace having jurisdiction in the place, stating on oath such belief; and such sheriff, magistrate, or justice may, with or without intimation to the owner, occupier, or person in charge of the premises, by order in writing, require the occupier or person having the custody of such premises to admit the local authority and others aforesaid; and if such occupier or person refuse or fail to obey such order he shall, on conviction of such offence, be liable to a penalty not exceeding five pounds; and on being satisfied of such failure or refusal, the sheriff, magistrate or or justice may grant warrant to such Person or persons for immediate forcible entry into the premises; and if no such occupier or person can be discovered, or if no person is found on the premises to give or refuse admission, the local authority or their officers may enter the premises without any order or warrant, and forcibly, if need be.
§ Provided that if no nuisance be found to exist, the local authority shall adequately restore the premises at their own expense.
§ Any order made by a sheriff, magistrate, or justice for the admission of the local authority or their officers or other persons under this section shall continue in force until the nuisance has been removed, or the work for which the entry was necessary has been done.
§ SIR LEONARD LYELLmoved, before the words, "may demand admission," to insert "with the sanction of the local authority."
§ *THE LORD ADVOCATEhoped the House would not consider this would be an improvement. It might prevent the sanitary inspector acting promptly in remote districts.
§ SIR WALTER FOSTERasked the Lord Advocate where these remote districts were in which the sanitary inspectors would be hampered? There were a large number of medical officers of health scattered throughout these districts, and he did not see that any great difficulty would arise in the matter to which he referred.
§ *THE LORD ADVOCATEsaid the hon. Baronet failed to see the real meaning of the Amendment. It had nothing to do with getting the authority of the medical officers.
792 Amendments made: Leave out "adequately" ["adequately restore "]; leave out "with or without," and insert "after," after "warrant to such," insert "local authority, officers, or." In next paragraph, leave out "adequately."—(Lord Advocate.)
§ Clause 22,—
§ PROCEEDINGS BY LOCAL AUTHORITY WHEN NUISANCES ARE ASCERTAINED TO EXIST.
§
In any case where the existence of a nuisance is ascertained to their satisfaction by the local authority, or is certified to them in writing, signed by the medical officer or by the sanitary inspector, or where the nuisance in the opinion of the local authority did exist at the time when demand of admission was made or the certificate was given, and, although the same may have been since removed or discontinued, is in their opinion likely to recur or to be repeated, they may apply to the sheriff or to any magistrate or justice, by summary petition in manner hereinafter directed, and if it appear to his satisfaction that the nuisance exists, or, if removed or discontinued since the demand of admission was made or the certificate was given, that it is likely to recur or to be repeated, he shall decern for the removal or remedy or discontinuance or interdict of the nuisance as hereinafter mentioned; provided that if it appear to the sheriff or magistrate or justice that the nuisance arose from the wilful fault or culpable negligence either of the owner or occupier of the premises, and that a notice in respect thereof lied previously been served on such author, the sheriff or magistrate or justice may, in addition to making a decree as aforesaid, impose a fine not exceeding dye pounds on such owner or occupier; provided that in the cases sunder Sub-sections (6) and (8) in Section sixteen of this Act such application shall be made only on medical certificate as aforesaid, or on a representation by a parish council, or on a requisition in writing under the hands of any ten ratepayers of the district of the local authority, and that in these cases and the cases under Sub-sections (9) and (10) in said section, it shall be made, only to the sheriff; and farther. that in the cases under Sub-section (11) in Section sixteen it shall not be necessary to cite any person as the author of the nuisance, but such application shall be proceeded with by the sheriff (to whom alone it shall be made) after such intimation to the collector of the churchyard or other dues, or to such other person or persons as to the sheriff shall seem meet; and such person or persons as shall appear after such intimation shall, if the sheriff think proper, be allowed to be heard and to object to such application in the same manner as if he or they were the author of the alleged nuisance within the meaning of this Act.
§ *THE LORD ADVOCATEmoved, after the words "existence of a nuisance is," to insert "upon a certificate by the medical officer or after a report by the sanitary 793 inspector or otherwise." This, he said, was the clause which first, he thought, specifically raised the question of what should be done by the sanitary and what by the medical officer. No doubt this matter had excited a good deal of interest. He should like to say at once that the Government had had no wish to in any way minimise or detract from the position of the medical officer. They entirely recognised the services which he rendered, and the fact that without him they could not satisfactorily carry out the system appertaining to the protection of the public health. But they wanted to make it clear that the medical officer should be the servant and not the master of the local authorities, and accordingly hon. Members would find in each case the person who was to take proceedings in respect of the nuisance, was not any officer, but the local authority. When the Bill was originally introduced, there was only put in this clause the medical officer and not the sanitary inspector. An Amendment was proposed by the hon. Member for Lanark to insert "the sanitary inspector." The view which he took as representing the Government was such as led hint to accept that Amendment. Without in any way wishing to raise the sanitary inspector out of that position which was more appropriate to him, or to make him a qualified person, one did feel that on the question of the existence of a nuisance it would be rather ridiculous if the sanitary inspector saw a nuisance at a point from which the medical officer was miles distant, or a nuisance not requiring technical skill to discover, that they could not have action taken upon it without first of all the sanitary inspector going to find the medical officer, bring him back to the spot, and then the two proceeding to the local authority. That was the view one took in accepting the Amendment. However, upon the discussion that ensued, it appeared that many medical officers thought front the way in which the clause was expressed that upon the question of public health, especially having to do with nuisances and infectious diseases, there was an intention to put the sanitary inspector on exactly the same platform as the medical officer. That was not so, and, accordingly, while he could not go the whole length which had been proposed by some hon. Members, and put the 794 medical officer at the head of everything, and while he thought it would be a mistake from the common sense point of view to take the action of the sanitary inspector out of the section altogether, he proposed by this Amendment a middle course. If the Amendment was accepted the clause would read thus, "In any case where the existence of a nuisance is upon a certificate by the medical officer, or after a report of the sanitary inspector, or otherwise ascertained to the satisfaction of the local authorities," and so on. That lest it for certain that the only person who was entitled to certify, with the additional results that might flow from the form of certification, was the medical officer. Still, at the same time, the sanitary inspector might report to his own local authority, and the local authority should be the persons to take action. He had some hopes that, perhaps, this Amendment might reconcile the views of the medical gentlemen, and at the Same time not make them do without what would very often be the practical service of the sanitary inspector when the medical officer was not near to deal with the nuisance. He begged to move the Amendment.
§ SIR C. CAMERONsaid that he much preferred die Amendment standing in the name of the hon. Member for Edinburgh and St. Andrew's University. That Amendment proposed to cut out the words referring to the medical officer and the sanitary inspector. It would then be competent for a local authority, in a case where they ascertained the existence of a nuisance, to go directly before the sheriff to prove the circumstances. They ought to follow the English precedent, which gave the local authority a free hand. The Lord Advocate's Amendment left matters precisely where they stood. Whether a sanitary inspector was said to "certify," or to "report," surely did not much matter. The thing done was much the same, and this was a distinction like that between tweedledum and tweedledee. If the Lord Advocate's intention was to conciliate his attempt came too late. Let the right hon. Gentleman act in the spirit of "a plague on both your houses," and let him strike out of the clause all allusion to medical officers and to sanitary inspectors. The local authority ought to be allowed to choose its own means of proving a nuisance before the sheriff.
§ SIR W. PRIESTLEYsaid that he should like to cut out of the clause the reference to the medical officer and the sanitary inspector. The practice would then be assimilated to the practice in England, which worked exceedingly well. A medical certificate on the subject of a nuisance was an important matter, and if the sanitary inspector were allowed to certify in exactly the same way as a medical officer it would be derogatory to the medical profession and often troublesome to the public. It was sometimes supposed that a mere sense of smell qualified a person to discover a nuisance, but that, of course was an error. A bad smell was not necessarily injurious to health. A smell was only indicative of some decomposition which might or might not be harmful
§ SIR WALTER FOSTERwas glad the hon. Member opposite intended to stick to his Amendment, which was better than the Lord Advocate's. He hoped that some day sanitary inspectors might become qualified to discover the chemical constituents of smelts, but at present they were not so qualified. Persons who had no scientific knowledge at all were often appointed inspectors. Sometimes they were ex-policemen, and sometimes even blacksmiths who had failed in business. [A laugh.] To put such men in the position of certifying as to nuisances dangerous or injurious to health would be to place them in a position for which they were not qualified. Local authorities would often be involved in difficulties if they had to act on the reports of inspectors having no medical or scientific training in respect of sanitary matters. In many instances local authorities had been misled into trouble and even to the detriment of the public health. The Public Health service of this country had been built up with infinite care and difficulty, and he should be sorry if by legislation any check were given to the advance. He spoke as a medical man, and he spoke unselfishly, for the most unselfish work of the profession was stamping out the diseases by the treatment of which they lived. Medical men were anxious to go on in that course for the benefit of the public. To introduce into administration an Amendment such as that of the Lord Advocate, allowing sanitary inspectors to certify to a nuisance as dangerous or injurious to health, a 796 very difficult and delicate subject to deal with, would be to place sanitary inspectors in a position for which they were not competent, and lead to no end of difficulty in the administration of the health service of the country. On the ground of protecting administration, and to keep local authorities out of the difficulties and trouble arising out of action on reports issued upon inadequate knowledge, he believed the best thing to do would be to cut out the reference to sanitary inspectors for this duty for which they had not been trained and which in the present state of the law they were not qualified to perform.
§ *MR. HEDDERWICKsaid the unanimity of medical authorities on this point gave rise to suspicion in his mind, and he felt strongly that the Lord Advocate would do well to adhere to his own Amendment. This Bill was intended to improve the sanitary condition and the health of Scotland, and not for the settlement of differences between medical gentleman and sanitary inspectors, and he had not the least doubt that if the Amendment had originally appeared in the Bill, none of this internecine warfare, which he understood from the hon. Baronet was now raging would have arisen. If these words were struck out as was proposed by the hon. Member for Edinburgh University, it would then be in the power of any local authority to proceed by way of action in the Sheriffs' Court, upon some utterly unsatisfactory report of somebody whom nobody knew, but with the Amendment of the Lord Advocate accepted, no proceedings could be taken until the local authority was satisfied upon competent judgment of medical officer or sanitary inspector that there were sufficient grounds to take action.
§ *MR. HEDDERWICKsaid it was not to be supposed that proceedings would be taken except on the certificate of a medical officer or sanitary inspector, the words "or otherwise" being to cover some possible exceptional circumstances. He hoped the Lord Advocate would adhere to his Amendment, and he believed that the irritation excited between medical men and sanitary inspectors would soon abate.
§ MR. CALDWELLthought the discussion had reached a point when it was evident that a satisfactory arrangement would be arrived at by the adoption of the Amendment of the hon. Member for Edinburgh University, which had been supported from both sides of the House. The Lord Advocate would not think his dignity infringed upon if he withdrew his Amendment and allowed that of the hon. Member to be moved, upon which there was general agreement.
§ *THE LORD ADVOCATEsaid all he wanted to do was to please the parties concerned, he had no particular anxiety for his own Amendment. As the other proposal appeared to satisfy the medical profession and the hon. Member for Lanark he was quite willing to accept it. Of course it would be understood that a local authority would satisfy itself by the certificate or by any other way.
CAPTAIN SINCLAIRdesired a word of congratulation to the Lord Advocate and the House upon the acceptance of a proposal which he urged more than two hours ago.
Amendment, by leave, withdrawn.
Amendments made: Leave out the words "or is certified to them in writing signed by the medical officer or by the sanitary inspector." Leave out the words "since the demand of admission was made or the certificate was given."—(The Lord Advocate.)
§ Clause 23,—