HC Deb 01 February 1961 vol 633 cc1087-97
Mr. Willis

I beg to move, in page 2, line 38, to leave out from "that" to "flooding" in line 39.

This raises the point on which we had fairly considerable discussion in Committee. As the Bill stands these words would appear to me to mean, apart from what the right hon. Gentleman said that they meant, that a local authority could never carry out a flood prevention scheme if the flooding of agricultural land was incidental to that scheme. That is good enough. But the argument that I put forward in Committee was that the general impression created in the mind of anyone reading the Bill, when he read the words: … an incidental result of the exercise … would be that a small amount of agricultural land might be covered but not a large amount. I think that the average town councillor or town clerk would probably place that interpretation upon the words. We discovered during the course of the proceedings that in point of fact a local authority could carry out a scheme designed to prevent or mitigate the flooding of land in its area, not being agricultural land, even though one of the results of the scheme was perhaps to prevent and mitigate the flooding maybe of hundreds of acres of agricultural land.

During the course of the Bill, I put to the right hon. Gentleman the example of a small river valley being dealt with simply as the result of the local authority, the county council or some other authority, undertaking a scheme under the Bill to prevent the flooding of urban property in one small village. This is what could happen. One can think of small villages that are from time to time flooded. A local authority could under this Bill—this was the interpretation placed upon it by the Government and I was very pleased as well as surprised by this interpretation—prepare a scheme to prevent the flooding of this wee village of maybe twenty or thirty houses. Although the scheme itself might be of a character to prevent the flooding of hundreds of acres of land in the same river valley, it would be still possible to carry it out under the Bill. The argument at the time was that with these words in the Bill no local authority would think that that was possible. It was argued that the word "incidental" would convey the impression that it was permissible to prevent the flooding of say twenty acres—a small area—of agricultural land as an incidental result.

The right hon. Gentleman pointed out that prevention of flooding of hundreds, if not thousands, of acres would be incidental to the scheme. He admitted that that would be, a correct legal interpretation of the words, but that is not the impression given to people reading the Bill. Therefore, we suggested in Committee that the right hon. Gentleman should look at this again to see whether another form of words could be found. I believe that he undertook to do that. We should like to know the result of his researches and what he has done in this matter.

I put to him this point that, even if he leaves these words, his fears that a scheme might be possible which dealt solely with agricultural land cannot be real fears when we come to read Clause 1 (1), which states: For the purpose of preventing or mitigating the flooding of land in their area, not being agricultural land, any council to whom this section applies may, so far as they think fit and subject to the provisions of this Act, exercise all or any of the powers specified in subsection (1) of the next following section. I do not pretend to be a lawyer, but it seems to me that with that subsection in the Bill it would be quite safe to leave out the words that we propose should be let out, and that the local authority would still only be enabled to carry out a flood prevention scheme under the Bill if in fact the primary purpose of that scheme was to deal with flooding. The Lord Advocate may be able to tell us whether that is in fact the legal interpretation. It seems to me that it may be the legal interpretation, in which case these words could be left out, and if they were left out, I think that the local authority would have a better' idea of what is possible under the Bill.

I am quite sure that many local authorities, as the Bill stands at present, would not place upon it the construction that was placed upon it by the Government during Committee stage. I do not think that any of my hon. Friends thought that the Bill meant what the right hon. Gentleman said that it meant, and I do not think that any of 'his hon. Friends thought so either. If that were thought by Members of Parliament who study the Bill, I think that it could equally be thought by local authority officials who study the Bill. I ask the right hon. and learned Gentleman whether he would be prepared to have another look at the Clause to see if these words can be left out or some other words put in their place.

The Lord Advocate (Mr. William Grant)

As the hon. Member for Edinburgh, East (Mr. Willis) so rightly said, this matter was discussed at some length in Standing Committee. I believe the matter was left in this way that I would be prepared to reconsider the word "incidental" on the basis that I would welcome his advice on the matter. [HON. MEMBERS: "Oh."] The question was whether we should get another word to replace the adjective "incidental". I have thought very hard, as I am sure the hon. Member for Edinburgh, East has, and it appears that neither of us, so to speak, has born fruit in that respect.

Mr. Willis

The right hon. and learned Gentleman will appreciate that during the Committee stage I tendered about eight columns of advice which were duly recorded in the OFFICIAL REPORT. He might at least have read and studied that advice. I appreciate that he would not be able to grasp all the points during the Committee stage.

The Lord Advocate

I have read more than once what the hon. Member for Edinburgh, East said, but the advice which he tendered was not what I would call "incidental" advice.

The position, as was explained to the Committee, is that a local authority can do work on agricultural land if it is necessary for the purpose of preventing or mitigating flooding on non-agricultural land. All that this amounts to if we leave the words in, is to make it clear that if work is done on agricultural land it must be an essential part of the flood prevention operations on non-agricultural land.

8.30 p.m.

The hon. Member referred back to the opening lines of Clause 1 and he suggested that if the words were left in local authorities might be uncertain what was intended. My view is that the words make it clear that if their main purpose is the prevention of urban flooding, if I may put it that way, they may do work on agricultural land if that is incidental to that main purpose. If I may put it in a slightly military way, let me describe the operation of the exercise. Incidentally, we had a little trouble about "exercise" in Committee, but we are not now dealing with that. First, we get an operation order and then we get the object. Here we have the object—the prevention of flooding on urban nonagricultural land. To attain that object one is allowed to do anything incidental to that, even if one goes beyond the scope of the non-agricultural battle field, if I may put it in that way. If we get into trouble, it will only be through leaving out those words.

Agricultural land can be dealt with under the Land Drainage (Scotland) Act, 1958.

Mr. Manuel indicated dissent.

The Lord Advocate

The hon. Member for Central Ayshire (Mr. Manuel) shakes his head. I say it can be. I do not say it necessarily will be. The powers are there. This is to make it clear that if there is an overlap, the overlap onto the agricultural land can only be as an incidental result of the main purpose in the Bill, that is preventing or mitigating flooding in the urban or non-agricultural land.

Mr. Manuel

I am grievously disappointed by the contribution from the Lord Advocate. I have spoken frequently on this aspect of the problem. In the context of many schemes that will be put up to the Secretary of State for Scotland, the word "incidental" will be quite wrong and misleading.

I want to pose to the Committee the main problem in my consituency which I am sure the Secretary of State and the Joint Under-Secretary of State know well. I am thinking of the village of Glengarnock where there will not be a great urban area to be dealt with, but none the less it will be to deal with that urban problem that the scheme will be presented The agricultural part of it will be incidental to it so far as costs or length of river are concerned It will be several miles below the village of Glengarnock that the river will need to be deepened and it is on that that the main cost of the scheme will arise To say that it is incidental would be misleading and would give a completely wrong impression.

I should have thought that the Lord Advocate, instead of giving us wisecracks would have considered some more appropriate word to cover the situation. We must be definite that this means that where agricultural ground has to be relieved of flooding to a much greater extent than the urban area which is being cleared, the job will nevertheless not be held up.

I hope that we can make it perfectly clear that we intend to solve flooding problems and to present urban flood prevention schemes even though the greater part of the area is agricultural land. I hope that we shall have a definite assurance from the Secretary of State that, even though the scheme would be largely relieving agricultural flooding, if the main complaint is, as he knows it has been at Glengarnock, of the flooding of a factory and houses in the village, he will not resolve not to authorise the scheme because the greater part of the on-cost would lead to the relief of agricultural land in the area.

Mr. W. Baxter

It seems to me that the word "incidental" conveys the impression of something of no importance or of a somewhat slight nature pertaining to the scheme. It does not indicate, as we would like it to indicate, that it may be a major portion of the scheme. I would suggest that the word "incidental" be left out and that the wording should read, "Notwithstanding that as a result of certain operations this is required to be done" or words to that effect. Words of that kind would let it be seen in the proper light that this may be an important operation and not a small, incidental part of the whole. The Lord Advocate should clarify that point.

The Lord Advocate

I am certainly willing to look at any suggestion that the hon. Member makes. As for the suggestion made by the hon. Member for Edinburgh, East (Mr. Willis). I have looked at it and he will remember that I said in Committee, not with my tongue in my cheek but quite honestly, that any assistance that he could give me I would gratefully receive

Mr. Willis

I am rather humble about these matters, and, as the Lord Advocate knows, the legal profession in Scotland has a very valiant champion in the hon. Member for Edinburgh, East. But I must say that, after listening to the right hon. and learned Gentleman, my unbounded admiration for the legal profession in Scotland has been sadly diminished on learning that he is unable to find a suitable alternative to this word. We suggested to the right hon. and learned Gentleman words such as "as a result of the exercise" or "notwithstanding that one result of the exercise is so-and-so" or something of that kind.

Surely it was not beyond the wit of the legal profession and of this eminent body of people gathered in Edinburgh to advise some words which would have met this point. I am losing faith gradually in the legal profession and coming more and more to admire the sea lawyer tactics of some of my hon. Friends rather than the activities of the genuine lawyers in Parliament.

Mr. James Dempsey (Coatbridge and Airdrie)

I can recall the discussions on this matter. I can remember that the Lord Advocate was offered several words and that the lay members of the Committee guided the right hon. Gentleman. It is surprising to find that at this stage the Lord Advocate, with all the legal wit at his command and all the intelligentsia of St. Andrew's House at his elbow, cannot find a suitable word.

The Lord Advocate

I sometimes can express in a single word what I feel about speeches by hon. Members opposite.

Mr. Dempsey

I am sure that after all the assistance, guidance and advice that the Lord Advocate has been given tonight, he could have another look at this subsection and at the terms of the Amendment. If the right hon. and learned Gentleman knows a suitable word—and I hope that it will not be a four-letter word, incidentally—I am sure that he could put it before us at the next stage of the Bill to be incorporated in the Clause to meet this point.

Mr. Ross

My attitude to legislation, particularly when we get some of the pearls of wording that are advocated by the Lord Advocate, has been "Never put a word in when you can take some out." What we are proposing in our Amendment is to delete some words, which will leave us with perfect sense. It will also remove "incidental" altogether. What is the need for that word? After all, nothing can be initiated in this matter unless, first of all, it is for the purposes of preventing or mitigating flooding in non-agricultural land.

With our Amendment the Clause would read: notwithstanding that flooding of land other than such land … is prevented or mitigated. That is perfectly clear. There would be no complications and no false impressions over what "incidental" means.

It is 1st February today. We discussed this matter on 8th December, and the Lord Advocate has spent hours each day since then wondering what he can do to get rid of "incidental" which causes wrong ideas to spring up in the minds of the Opposition—and also in the minds of hon. Members opposite, because we had a variety of legal and non-legal interpretations of what "incidental" meant. We had an indication of the vastly widened scope of flood prevention in relation to the Bill in the first speech by the Joint Under-Secretary. There we saw the whole of Scotland as the scope of the battleground—if I may use the strange metaphors of the Lord Advocate—in the exercise of flood prevention.

Let the Lord Advocate study again exactly what our Amendment does. Let him place it in its setting not only in relation to this Clause but in relation to the words that govern action under the Bill, and I defy him to pick holes in it from any legal point of view. There is no doubt about that. Why is the assembled trinity of legislators representing Scotland on the Government Front Bench so unwilling to accept common sense and clarity when it is placed before it? If we do not get an adequate reply, we must once again take our common sense into the Division Lobbies.

Mr. Thomas Steele (Dunbartonshire, West)

After the speeches from this side of the Committee, we ought at least to be told the reason why the Lord Advocate, after his thoughts on the matter, wants these words kept in the Bill.

The Lord Advocate

I have two principles: one is that I am in favour of brevity and the other is that I am in favour of clarity. My opening speech was commendably brief. The hon. Member for Edinburgh, East (Mr. Willis) thought I was about to sit down and I thought that he intended to intervene, and that rather shortened my speech.

I have looked at this matter, and I realise the force of the argument about the operative words at the beginning of the Bill, but I consider that, from the point of view of clarity, it is made perfectly clear in the Clause that the powers must be subject to the consideration that the main object must be the prevention of flooding in non-agricultural land but that the work can be carried out notwithstanding that an incidental result is the flooding of land which is of an agricultural character.

Question put, That the words proposed to be left out stand part of the Clause:—

Ainsley, William Davies, Harold (Leek) Hannan, William
Allen, Scholefield (Crewe) Davies, Ifor (Gower) Hart, Mrs. Judith
Awbery, Stan Davies, S. O. (Merthyr) Hayman, F. H.
Bacon, Miss Alice de Freitas, Geoffrey Herbison, Miss Margaret
Baxter, William (Stirlingshire, W.) Dempsey, James Hilton, A. V.
Beaney, Alan Diamond, John Holman, Percy
Bellenger, Rt. Hon. F. J. Ede, Rt. Hon. Chuter Hughes, Emrys (S. Ayrshire)
Bence, Cyril (Dunbartonshire, E.) Edwards, Robert (Bilston) Hughes, Hector (Aberdeen, N.)
Blackburn, F. Edwards, Walter (Stepney) Jay, Rt. Hon. Douglas
Boardman, H. Evans, Albert Jenkins, Roy (Stechford)
Bowden, Herbert W. (Leics, S.W.) Fernyhough, E. Johnson, Carol (Lewisham, S.)
Broughton, Dr. A. D. D. Fletcher, Eric Jones, Rt. Hn. A. Creech (Wakefield)
Brown, Alan (Tottenham) Forman, J. C. Jones, J. Idwal (Wrexham)
Brown, Rt. Hon. George (Belper) Fraser, Thomas (Hamilton) Jones, T. W. (Merioneth)
Castle, Mrs. Barbara Ginsburg, David Kenyon, Clifford
Collick, Percy Gordon Walker, Rt. Hon. P. C. Key, Rt. Hon. C. W.
Craddock, George (Bradford, S.) Gourlay, Harry Mabon, Dr. J. Dickson
Crosland, Anthony Grey, Charles McCann, John
Cullen, Mrs. Alice Griffiths, Rt. Hon. James (Llanelly) McInnes, James
Darling, George Hamilton, William (West Fife) McKay, John (Walisend)

The Committee divided: Ayes 160, Noes 124.

Mackie, John Popplewell, Ernest Taylor, Bernard (Mansfield)
McLeavy, Frank Prentice, R. E. Thompson, Dr. Alan (Dunfermline)
Mallalieu, E. L. (Brigg) Price, J. T. (Westhoughton) Thomson, G. M. (Dundee, E.)
Manuel, A. C. Probert, Arthur Thornton, Ernest
Mapp, Charles Proctor, W. T. Ungood-Thomas, Sir Lynn
Marquand, Rt. Hon. H. A. Randall, Harry Wainwright, Edwin
Marsh, Richard Rankin, John Warbey, William
Millan, Bruce Roberts, Albert (Normanton) Watkins, Tudor
Milne, Edward J. Ross, William Weitzman, David
Mitchison, G. R. Short, Edward Wells, Peroy (Faversham)
Morris, John Slater, Mrs. Harriet (Stoke, N.) Whitlock, William
Moyle, Arthur Slater, Joseph (Sedgefield) Wilkins, W. A.
Neal, Harold Small, William Williams, D. J. (Neath)
Noel-Baker, Rt. Hn. Philip (Derby, S.) Smith, Ellis (Stoke, S.) Williams, LI. (Abertillery)
Oram, A. E. Snow, Julian Williams, W. R. (Openshaw)
Oswald, Thomas Soskice, Rt. Hon. Sir Frank Willis, E. G. (Edinburgh, E.)
Owen, Will Spriggs, Leslie Wilson, Rt. Hon. Harold (Huyton)
Padley, W. E. Steele, Thomas Woodburn, Rt. Hon. A.
Pargiter, G. A. Stones, William Woof, Robert
Parker, John (Dagenham) Swaln, Thomas Yates, Victor (Ladywood)
Pearson, Arthur (Pontypridd) Sylvester, George
Pentland, Norman Symonds, J. B. TELLERS FOR THE NOES:
Mr. Howell and Mr. Lawson.

Clause ordered to stand part of the Bill.