HC Deb 26 March 1958 vol 585 cc450-6
Lord John Hope

I beg to move, in page 1, line 5, to leave out subsection (1) and to insert: (1) The owner of any agricultural land may apply to the Secretary of State for an order (hereafter in this Act referred to as an "improvement order") authorising the execution of such drainage works as will improve the drainage of the said land or will prevent or mitigate flooding or erosion to which that land is subject. The right hon. Member for East Stirlingshire (Mr. Woodburn) can fairly claim the parentage of this Amendment. He suggested that the relevant wording as originally included in the Bill was too long-winded and contained a good deal which was unnecessary. The effect of the Amendment is that an owner of agricultural land would now be enabled to apply to the Secretary of State for an improvement order without having to be of opinion that it is in the interests of agricultural production that the drainage of the said land should be improved. — The principal difference between the Amendment and the subsection which it replaces is that it is not required that a farmer in making an application for an improvement order shall be of such opinion. He might not be in a position to express such an opinion. I am sure that the right hon. Gentleman's original suggestion will be as welcome to him in the terms of the Amendment as it was in his own terms.

Mr. Woodburn

When I read the Amendment this morning it struck me as greatly improved wording, and I am glad to hear that I was the parent of it. If any students read the proceedings of the Standing Committee they will get lessons in grammar which will last them the rest of their lives. My hon. Friend the Member for Kilmarnock (Mr. Ross) did a great deal of work in trying to make the Bill precise and to make it say what it means without florid declarations of propaganda and other unnecessary verbiage. It was a lesson to anyone who studies grammar.

We are grateful to the Government. The lawyers may not be grateful, but the general public will be grateful that the words express so clearly and in such a straightforward manner what the Clause is meant to convey.

Mr. Willis

Does the Amendment widen the scope of the Bill? We had long discussions in Committee on the limitations on the purposes of drainage schemes to those involving an increase of agricultural production. It seems that under the Amendment the owner of agricultural land has no longer to be concerned with agricultural production before he can apply to the Secretary of State for an order authorising the execution of drainage works.

Will the owner of land still have to consider the necessity of increasing agricultural production? In very long debates in Committee we pointed out the great limitations which this imposed on the owners of land and in many Amendments we endeavoured to exclude the words "agricultural production". Will the substitution of this subsection for that originally in the Bill have that effect? If so, is it not necessary to move further Amendments throughout the Bill to delete the words "agricultural production"? I do not know. I am simply asking the question.

Lord John Hope

The answer is to be found in Clause 1 (2). Under that subsection the Secretary of State has to satisfy himself that it is in the interests of agricultural production that the drainage of the land should be improved. The Amendment does not widen the scope of the Bill.

Amendment agreed to.

4.15 p.m.

The Lord Advocate (Mr. W. R. Milligan)

I beg to move, in page 1, line 15, to leave out "may".

Perhaps it would be convenient if we considered, at the same time, the next Amendment, in line 4, at the beginning to insert "shall have power to". The two Amendments go together.

As usually happens in the Scottish Standing Committee, we had a most interesting discussion in Committee on the Bill about our old friends "may" and "shall". It would not be a Scottish Committee unless we discussed the appropriate occasions when "may" should be used and the appropriate occasions when "shall" should be used. On this occasion, the debate was unusually interesting because the Opposition pointed out with great cogency that in Clause 1 (2, c) we used the word "expedient", and they said with great force, "If the Minister finds it expedient, among other things, why should there by any reason for not having the word 'shall' and for retaining the word 'may'?"

At the risk of wearying the House, I hope not for long, I will draw the attention of hon. Members to the circumstances in which it may be appropriate to use the word "may" and the circumstances in which it may be appropriate to use the word "shall". In nearly every Bill there is a Clause which is an enabling provision. It enables the Minister to do something which otherwise he could not do. In this Bill, in Clause 1 (2), we read that on receiving an application for an improvement order "the Secretary of State may …" That is an enabling provision.

In other parts of the Bill, particularly in Clause 1 (4), the word "shall" is used. The phrase is An improvement order shall be made". That is of a procedural nature. Again, we find "shall" dotted about in the Schedules, particularly in the First Schedule. In paragraph 5 of the First Schedule we find a substantive use of the word "shall"—the Minister, having satisfied himself on certain circumstances and as to certain conditions, "shall" take certain action.

May I outline the machinery which is intended to be set up by the Bill? It is important in this connection in the use of the words "may" and "shall". Taking it very generally, the procedure as we see it is as follows. First, owners make an application for an order, which comes under Clause 1 (1). They make it to the Secretary of State, who will then decide whether or not there is a suitable case. Obviously, if it is an impossible case he will take no more steps, but one assumes that if a request is made he will take action on it. If it is a prima facie case, he will issue a draft order under paragraph 1 of the First Schedule. There then follow certain procedural matters—intimations, objections, and inquiry.

The Secretary of State, having completed these preliminary matters, then addresses himself to the question whether he will proceed with the draft order, in other words, whether he intends and hopes to go on to issuing a final order. We are now approaching paragraph 4 of the Schedule. At this stage, the Secretary of State must satisfy himself of the factors which are set out in paragraphs (a), (b) and (c) of Clause 1 (2). By this stage, having received objections and possibly having had an inquiry made, he is in a position to decide whether the conditions in those paragraphs have been satisfied and whether it is expedient for him to make an order.

We are not quite out of the wood yet, however, because, having put into operation paragraph 4 of the First Schedule, in other words having found out what consents there are, he has to satisfy himself that the conditions set out in paragraph 5 of the First Schedule have also been satisfied. Having done all that, we find, at the beginning of paragraph 5 of the First Schedule, that On the expiry of the period of twenty-eight days referred to in the last foregoing paragraph the Secretary of State"— and the House should note the word "shall"— shall make the order if and only if … The question arises, under a later Amendment, whether we should drop the words "and only if."

Accordingly, having reached that point, the Secretary of State, having satisfied himself on paragraphs (a), (b) and (c) of Clause 1 (2), and on the conditions in paragraph 5 of the First Schedule, has no option but to make the order. Therefore, the word "shall" which was suggested as desirable here, is found in the Schedule, and the word "may" appropriately in the enabling Clause 1 (2).

Mr. Woodburn

I would consider myself out of order if I discussed the Lord Advocate's speech, but I should be glad if he would tell us exactly what difference the change in words makes. What is the difference between … shall have power to make … and "may make"? As far as I can see, all that has happened is that the Lord Advocate has shifted "may" from line 15 in page 1 and has put the same meaning in different words in page 2.

I am quite at a loss to discuss this matter in view of what the right hon. and learned Gentleman has said, because what he has said does not seem to refer at all to what has happened in the change of words.

The Lord Advocate

The right hon. Gentleman is perfectly right. I might have begun by saying that the Amendment will not give effect to what was requested by right hon. and hon. Members opposite, but I was trying to explain to the House that we put the Amendment on the Notice Paper to show by clear words that Clause 1 (2) is an enabling subsection. The meaning remains exactly the same, but the insertion of the words "have power" shows that this is an enabling subsection, whereas the word "may" might not have shown that so clearly.

Mr. Woodburn

This is a perfect example of how we manage to waste a great deal of time in the Scottish Standing Committee. The Government are mainly responsible for it by reason of the number of irrelevancies with which we have to concern ourselves. In effect, "may" has been taken out of page 1 of the Bill and put in page 2, but the phrase has been altered to ensure the insertion of the word "shall", and it now reads: … shall have power to make … That is the same thing in English as "may". I have no objection to the change of words at all, but for the Lord Advocate to suggest that he has thus made a wonderful change in the Bill is an affront to our sense of the English language.

This is not a change of meaning at all. It is a purely verbal change. In the old days, somebody would have risen from the Government Front Bench and merely said "drafting", and no doubt the House would have agreed to the Amendment. There would have been no need to argue about it. In view of all this business of the Secretary of State having to be satisfied and find it "otherwise expedient" for him to do certain things, the words "shall make" could have been inserted in the Bill without the slightest trouble.

The Secretary of State has plenty of safeguards. He is not bound to do anything unless he thinks fit. The inclusion of these words, which mean nothing and ensure nothing, clutter up Bills and make them incomprehensible to the ordinary citizen.

Sir James Duncan (South Angus)

I agree that this is little more than a drafting Amendment by itself, but it is part of a series of Amendments which raise the question of definition. I, among others, raised that question of the definition of an improvement area in Committee. The previous Amendment and this Amendment improve the words and make the definition of an improvement area quite clear. They also make clear why the area has to be the subject of an improvement order whereas, to my mind, the Bill in this respect was previously incomprehensible.

I therefore accept my right hon. and learned Friend's series of Amendments to improve the definition and make it clear, so that the authorised persons who will be promoting these orders will know where they stand. I believe that this will facilitate the making of these important improvement schemes for the benefit of everybody in Scotland, and for the benefit of agricultural land in Scotland which badly needs these drainage schemes.

Mr. Willis

I do not know which Amendment the hon. Member for South Angus (Sir J. Duncan) is talking about. This has nothing to do with definition. The Lord Advocate has made a speech in which he tried to link all sorts of other things in the Bill with the Amendment. I found it very difficult to follow. As my right hon. Friend the Member for East Stirlingshire (Mr. Woodburn) pointed out, the Amendment makes the Clause mean exactly what it meant before, but we now have four words instead of one.

It is grossly unfair of the Lord Advocate to try to present the Amend- ment as if it were a concession to the Opposition. We on these benches did not ask for the Amendment. We argued that "may" should be "shall" in line 15 of Clause 1 in order to make it obligatory on the Secretary of State to take action if he was satisfied about paragraphs (a), (b) and (c). The right hon. and learned Gentleman has not gone any distance towards meeting our argument.

Sir J. Duncan

He has met mine.

Mr. Willis

I am sorry, but it is apparent from a reading of the Amendment that it has nothing whatever to do with more clearly defining an improvement scheme. The Lord Advocate was quite unfair. We are always glad when he takes the trouble to consider our suggestions, but when he substitutes four words for one and leaves the meaning exactly the same we do not accept that he is meeting a point that we made in Committee. The right hon. and learned Gentleman knows that perfectly well, but we understand why he tried to give the impression that he was meeting the point. The Amendment, however, is quite harmless and we could not possibly take exception to it.

4.30 p.m.

The Lord Advocate

What the Opposition object to is not the length of the Amendment, but the length of my speech. I apologise for that. As I said at the beginning, we had an interesting discussion on this point in Committee. We took the view at the time, which is the view we still hold, that the word "may" was appropriate in Clause 1 (2). I pointed out that the purpose of the Opposition was met by the word "shall" in the First Schedule, and that, accordingly, it was unnecessary to accept the Opposition Amendment. We have merely tried to make the matter more clear, but I never suggested that we were accepting the Opposition's proposal.

Amendment agreed to.

Further Amendment made: In page 2, line 4, at beginning insert "shall have power to".—[The Lord Advocate.]