Clause 19.—(APPLICATION TO RIVER ESK.) (Hansard, 13 February 1951)

§ Mr. N. Macpherson
I beg to move, in page 8, line 12, at the end, to add: For the purposes of this Act the River Esk means the river from its source to the point where it joins the River Sark. In dealing with any matter which concerns the shifting sands of the Solway one always has to walk warily. The Clause we are considering deals with the River Esk. It may not be generally known what happens to the Esk when it runs into the Solway and it is just as well that we should know what we are talking about when we say … the river Esk, including its banks and tributary streams, as is situated in Scotland. There are many Acts which try to determine what is the Solway. I do not think there is any Act which determines what is the Esk.
The fact is that when the waters of the Solway end it leaves the bed of the river which shifts from time to time. I am informed that is also the boundary between Scotland and England, and from time to time it shifts. So that if by the "River Esk" is meant that bed, in some cases it will change from time to time, because it moves; and the purpose of this Amendment is to make absolutely clear exactly what the law is and how much is confined to Scotland and how much to England. For that purpose this Amendment makes it quite clear that that part of the Esk above where it joins the Sark is to be covered by this Bill, and that alone. I hope I have made the point clear. As I say, there are 274 shifting sands of the Solway, and at any rate the Amendment will enable the right hon. Gentleman to tell us exactly how the various Acts which seek to define the Solway affect this Bill.

Mr. McKie
I am very glad that my hon. Friend has raised what at all events legally would appear to be a case of de minimis non curat lex. But so far as it represents the Scotland side of the Solway Firth, I feel sure that the right hon. Gentleman will realise it is a matter of some moment.
I wish to inquire why the Esk should be treated differently from the River Tweed, although I feel sure I shall call down upon me the vials of anger from the hon. Member for Berwick-upon-Tweed (Brigadier Thorp) when I say that. The River Tweed is to be made subject to this Bill, when it becomes an Act, in its entirety both in Scotland and in England; and here we merely reverse the position with regard to the River Esk. I have lived beside the Solway all my life and what my hon. Friend has said about the shifting sands of that famous estuary is absolutely true; especially about the position as regards the ending of the River Esk when it flows into the Solway Firth.
Let us be clear about what is the geographical position with regard to that. It is only the Border between Scotland and England for about three or four miles where it joins with the other Border river the Liddel which, in turn, has been the Border between Scotland and England for the preceding 12 miles. The two rivers, after the confluence, are the Border between Scotland and England for three miles down to what is called Scot's Dike which, at right angles to the River Esk, runs northward to the River Sark. From Scot's Dike the River Esk, down to where it falls into the bed of the Solway, is wholly in England, though it is true that its right bank marches with what is called the Debatable Land, the parish of Kirkandrews-on-Esk, the place which was in dispute between the two Kingdoms for a long period and was finally incorporated in the Southern Kingdom at the time of the Act of Union of the Crowns.
I wanted to make that abundantly clear, because it is not generally known and, as the River Esk has been men- 275 tioned, I think it is right that we should clearly understand the geographical situation. I hope that the Minister will now reply on this subject. I hope that he will tell us why the River Esk, although it is only the Border for such a short distance, should be made the subject of special treatment compared with its sister river.

§ The Joint Under-Secretary of State for Scotland (Mr. Thomas Fraser)
The hon. Member for Galloway (Mr. McKie) has treated us to a most interesting historical lecture which we enjoyed very much indeed, but he seems to have misinterpreted the purpose of the Amendment.

Mr. McKie
No.

§ Mr. Fraser
Or indeed, the Clause.

Mr. McKie
We are dealing with the Clause.

§ Mr. Fraser
The hon. Gentleman is getting us more confused than ever. He was supporting the hon. Member for Dumfries (Mr. N. Macpherson) who moved an Amendment, but now he says he was speaking about the Clause. The position is that the Esk has not been treated differently from the Tweed. It is being treated in exactly the same way. The Tweed happens to be included in Scotland for the purposes of this Bill, but the whole of the Esk was included in the provisions of the English Act of 1923. We propose in this Clause that it should so remain, and that we should not have some parts of the River Esk under this Bill and some parts under the English Act. Indeed, if we put in a definition of the Esk in this Bill and provided that some part of it should be covered by the Bill, it would be necessary to amend the Act of 1923.
The hon. Member for Dumfries said earlier that there was no need to have different laws for the two sides of the Border unless there was very good reason. If there was very good reason for bringing part of the River Esk within the provisions of this Bill, then perhaps the Government would look sympathetically at the matter. But I do not think that the hon. Gentleman has given any good reason.

§ Mr. N. Macpherson
Under Section 83 of the Act of 1923, there were special provisions as to the Solway. In the Fourth Schedule the Solway district was defined, but that Solway district was contingent upon a Solway district board being set up. It has never been set up. Therefore, it would appear that the definition of the Solway in that Act has not yet come into being. The point of my Amendment is that it seems likely that the Esk, where it flows at low water through the Solway, is still the Esk, half of which is English and half of which is Scottish. That is the point to which I should like the hon. Gentleman to address his mind.

§ Mr. T. Fraser
The River Esk must be treated as one, whether the tide is in or out. I have not got the Act of 1923 beside me now, but I think it makes clear that it governs the Esk. It may be that the Solway district has not been defined, because a board has not been set up, but the River Esk is covered by the English Act and any offences against that Act, as provided for in Section 83, on any part of the River Esk, whether it be geographically in Scotland or not, would be liable to prosecution in the courts.
That is where we should leave the matter unless there is very good reason, and I do not think that the hon. Gentleman himself thinks that he has given a good reason for having this one part of the Esk brought within the provisions of this Bill, while the greater part of the river remains within the provisions of the Act of 1923. The Esk should be treated like the Tweed—as one river. Offences in any part of the river should be treated similarly whether committed on one side of the Border or the other.

§ Brigadier Thorp
This is a Scottish Bill which deals with England and, as far as I could gather, we have had an Irish answer from the Joint Under-Secretary of State, so we are getting rather a hybrid Bill. He said that he was treating the Esk like the River Tweed, but he is doing exactly the opposite. He is including one river in Scotland and leaving the other out. That is not treating one river like another, and that is why I said that we have had an Irish answer.

§ Mr. N. Macpherson
The whole point of this Amendment is to make certain that there is a firm definition of where 277 the Esk ends. If the Government will promise to go into the matter and make certain on that point, I shall be content.

§ Mr. T. Fraser
I have now got the 1923 Act. Section 83 says: This Act shall apply to so much of the River Esk, with its banks and tributary streams up to their source, as is situated in Scotland. This Clause says: The provisions of this Act shall not apply to so much of the River Esk, including its banks and tributary streams, as is situated in Scotland. The two Measures make it clear that any part of the river which happens to be described as the River Esk shall be treated under the 1923 Act and not under this Bill.

§ Mr. Macpherson
All I am asking the hon. Gentleman to do is to make it clear what is the Solway and what is the Esk. If he will promise to make that point clear on Report Stage, I shall be satisfied.