§ Mr. Galbraith
I beg to move, in page 5, line 11, to leave out from "may" to the end of line 14 and to insert:for the purpose of preventing the obstruction of any particular watercourse in their area so as to be likely to cause the flooding of land, other than agricultural land, whether in their area or not, make byelaws regulating or prohibiting the deposit of rubbish or other material in or near the watercourse".During the Committee stage, hon. Gentlemen opposite criticised the drafting of Clause 6 (1) on the ground that reference to the manner in which rubbish was deposited in a watercourse appeared to be a reference to the physical manipulation of the rubbish into the watercourse rather than the effect which the depositing of the rubbish would have on the watercourse. I agree that there may be something in this, and the Amendment, therefore, seeks to improve the drafting of the Clause to remove any ambiguity on that score.
At the same time, the Amendment covers a very real type of case, which we discussed in Committee, where rubbish is deposited on a dump near a watercourse and is likely in time to spill over and get washed into the stream, thereby causing an obstruction, and possibly causing flooding further down.
Hon. Gentlemen will recollect also that I undertook during the Committee stage to consider whether the Clause might be redrafted to meet the point of an Amendment by the hon. Member for Coatbridge and Airdrie (Mr. Dempsey), who suggested that the power to make byelaws might be extended to cover the prevention of any interference with the normal flow of a watercourse. I said then that I was not able to accept the Amendment as it was worded although I had a good deal of sympathy with its 1114 object. I hope, therefore, that the hon. Gentleman will now feel that in introducing into the Clause a reference to the prevention of obstructions in a watercourse I have gone some way to meet him. I believe that the Clause, as amended, will give local authorities all the powers they need in relation to the making of byelaws having regard to the permissive nature of the whole Bill, and I hope that hon. Gentlemen opposite will agree that we have gone as far as we can to meet them.
§ Mr. A. Woodburn (Clackmannan and East Stirlingshire)
During the Committee stage I spoke on the first point mentioned by the hon. Gentleman, and I thank him for trying to meet me.
However, on reading the Amendment, I still feel a little puzzled about the word "deposit". The impression given to me by "deposit" is that it is the act of somebody depositing something in a stream. I suggested earlier that obstruction might result from neglect. Suppose there is in the middle of Kilmarnock a wall which the water undermines and the owner of the wall does not keep it in good order and the wall collapses into the stream. I am puzzled as to whether the person "deposits" the wall in the stream or whether the wall just falls in. Flooding might be caused equally by that person's neglect.
What strikes me about the whole of this is that neglect is not really covered by the Bill, and that more damage might be caused by a person's neglect than by any incidental depositing of rubbish in a stream. I have held out the possibility of a wall collapsing, but there are a number of other possibilities. I should be glad if the Joint Under-Secretary or the Lord Advocate could make clear what "deposit" means. Is it a conscious act on the part of someone, an act which he has actually committed, or does "deposit" include the results of neglect where the person ought to have prevented the incident from happening by keeping the wall, the bridge or whatever it might be in order.
§ Mr. Dempsey
I am grateful to the Joint Under-Secretary of State for coming part of the way as far as obstruction is concerned, but he will recall that during the Committee stage I also referred to dumping. He should have 1115 considered dumping because, as I read the Amendment, byelaws to cover dumping are governed by the words… so as to be likely to cause the flooding of land …In other words, there will be no byelaws to cover the situation in which dumping takes place excessively in many rivers, but still does not reach the stage of actually causing a flood.
It may be argued that we are dealing with flooding only and can deal with dumping only when it reaches the stage at which flooding takes place, but the mere fact that dumping can, at some stage, contribute to flooding should lead to its prohibition from our rivers. I know a place in Lanarkshire where the width of the river has narrowed because of dumping, and at a certain stage flooding is bound to take place. The mere fact that dumping can be a contributory element in flooding should have been ample reason for the Secretary of State to consider eliminating it altogether.
I believe that it is difficult to apply a byelaw dealing with flooding arising out of dumping. One must ask the questions: at what stage does flooding take place, and what degree of dumping is necessary before flooding occurs? This can create a tremendous amount of difficulty in the implementation of effective byelaws.
The mere fact that we are to allow dumping to take place in our rivers to a certain degree—dumping which, enormous as it is in many respects, has not actually sparked off flooding—is a weakness in the Amendment. I was hoping that the Government would correct that indecision.
Apart from many other factors, we all know that dumping is a great menace to children, who naturally gravitate towards water in their play. I thought that we could have taken advantage of this legislation to stop dumping in our rivers on a large scale and by large businesses—for it is done not by men with wheelbarrows but by large scale concerns. I hoped that, in view of the charitable outlook the Under-Secretary of State took during our discussions, we would have an Amendment to prohibit dumping.
I am appreciative of the distance which he has already travelled towards 1116 our point of view, and I am grateful for it, but I would have preferred him to be definite about river dumping and to have included a provision prohibiting it entirely.
§ Mr. Steele
The operative words in the Amendment are… be likely to cause the flooding of land …There might be some doubt about what those words mean. This can be decided only in the courts, but it would be useful to hear what the Lord Advocate has to say about the matter. I want to consider those words and also the words… in or near the watercourse.The serious flooding in part of my constituency was caused because sawdust from a sawmill was piled beside a water course. At that stage, of course, it did not cause flooding, but when we had a storm and a heavy rainfall, water came down the stream and gradually seeped away the sawdust and carried it down the stream to a small bridge where it blocked the stream so that the water piled up and two or three houses were flooded.
That was something about which nobody could do anything. The local authority had no power and the owners of the flooded property took what action they could, but although they tried to keep the stream clear at their own expense, the owner of the sawmill was not prepared to take any action. If the intepretation of this provision suggested by my hon. Friend the Member for Coat-bridge and Airdrie (Mr. Dempsey) is correct, there is not yet a solution to this problem. However, if the Lord Advocate is certain that the wordsbe likely to cause the flooding of landwould cover a case of this kind, then my constituents will be very happy.
§ The Lord Advocate
The right hon. Member for East Stirlingshire (Mr. Woodburn) suspected that "depositing" meant "voluntarily depositing". I am fairly certain that if a person allowed his wall to get into a state of neglect with the result that stones fell into a river, that would not be depositing within the terms of the Bill. Apart from that, there still remain common law rights, and, if anybody is injured, there would be a common law remedy outside the Bill.
1117 The hon. Member for Coatbridge and Airdrie (Mr. Dempsey) wanted to make any depositing an offence, whether it was voluntary or involuntary. I was in sympathy with some things he said, but it has to be remembered that this is a Bill to enable councils to take measures for the prevention or mitigation of flooding, and, even if we had drafted an Amendment to meet his argument, I doubt whether it would be in order. However, I will take note of his comments.
He and his hon. Friend the Member for Dunbartonshire, West (Mr. Steele) asked what was meant by "likely to cause flooding". The example given by the hon. Member for Dunbartonshire, West (Mr. Steele) is typical of the type of case which would be covered. As it turned out, the depositing of sawdust caused flooding, and anyone knowing the weather of Dunbartonshire would have been able to say that it was likely to cause flooding, and so the case would have been covered.
I was also asked whether the phrase "in or near" was sufficient to cover the matter when the depositing was some distance from the watercourse. It would be impossible and extremely undesirable to lay down limits. For instance, if we laid down a distance of 100 yards, that might cover cases which ought not to be covered and might not cover cases which ought to be included. However, when the depositing is likely to cause, and in fact does cause, flooding, as happened in the example, and when it is near enough to cause the flooding, it would clearly be covered by the byelaws which can be made.
§ It being Ten o'clock, the debate stood adjourned.
§ Proceedings on the Flood Prevention (Scotland) Bill and the Agricultural Research etc. (Pensions) Bill exempted, at this day's Sitting, from the provisions of Standing Order No. I (Sittings of the House)—[Mr. Maclay.]1118
§ Question again proposed, That the words proposed to be left out stand part of the Bill.
§ Mr. Ross
The Lord Advocate will appreciate that in trying to meet the objections raised to the original language the words in the Amendment make the position much more difficult. Originally, there was power to make bye-laws for the purpose of preventing flooding. It was relatively easy to decide whether something would cause flooding. The words now proposed will make it much more difficult for a local authority to decide something about which it must satisfy the Secretary of State for Scotland, because the Amendment says:for the purpose of preventing the obstruction of any particular watercourse in their area so as to he likely to cause the flooding of land, other than agricultural land, whether in their area or not …How on earth will anyone be able to decide a thing like that with certainty? How can it be justified? How can we ask a local authority to make bye-laws to cover only the flooding of non-agricultural land? This is the height of stupidity to which we have been reduced by this constant insistence on nonagricultural land.
I hope that the Lord Advocate, with the leave of the House, will explain why it was thought desirable to introduce this for the first time in the Amendment. Our original difficulty was that of being able to prohibit the dumping and depositing of rubbish, because there was no provision to deal with that. Dumping was not an offence. Depositing also was not an offence. It was "depositing in such a manner", and so on, that caused considerable difficulties to any local authority which tried to prosecute people under that provision. I think that the Secretary of State for Scotland will now find it even more difficult to decide whether the obstruction of any particular watercourse in any area by this dumping would be likely to cause flooding of land—not the flooding of agricultural land, but just land which is other than agricultural land.
While we are satisfied that the Government have tried to get round our original difficulties by making the sanctions which local authorities can apply much more effective, they have spoiled their efforts by dragging in this reference to land 1119 other than agricultural land. They have not only spoiled their efforts, but have made this quite nugatory.
I do not know whether we are grateful for this. I do not think that the Lord Advocate is grateful for the speech that I am making, but I hope that he will appreciate that there is a difficulty here and will promise to think about it again.
§ Mr. T. Fraser
I am unhappy about the Amendment for another reason, or perhaps I should say an extension of one of the reasons given by my hon. Friend the Member for Kilmarnock (Mr. Ross). The subsection will now read:Subject to the provisions of this section, a local authority may for the purpose of preventing the obstruction of any particular watercourse in their area …"—the watercourse that might be obstructed has to be in their area—so as to be likely to cause the flooding of land, other than agricultural land, whether in their area or not, make byelaws regulating or prohibiting the deposit of rubbish or other material in or near the watercourse.I should like to know what the Government have in mind. One got the impression that in their original draft they envisaged the local authority making byelaws for the prevention of flooding in its own area, but under this alternative wording which the Secretary of State has put before us a local authority making byelaws for regulating or prohibiting the deposit of rubbish or other material in a watercourse in its area might do so for the purpose of preventing flooding of some urban land in the area of another local authority.
I can envisage circumstances in which it might be desirable to do that, but we have not had any indication of what the Government have in mind. As a matter of fact, they resisted an Amendment a little earlier where we wanted consultation between the urban authority whose land might be flooded and the other authority which was causing the flooding. That has been resisted as being quite unnecessary, but it seems to be necessary to put in the Bill a byelaw-making power for one authority to regulate the depositing of material in or near a watercourse in its area to prevent flooding of land in the area of another local authority. In what circumstances does the right hon. and learned Gentleman envisage a local authority taking 1120 steps to make such byelaws for the protection of the area of another authority?
§ The Lord Advocate
If, by leave, I may reply, the circumstances I envisage are cases where local authorities are cooperating. One has the case of flooding occurring further downstream in the area of another local authority and, as a matter of neighbourliness, the upstream local authority under these provisions could make byelaws to prevent the deposit of this, that and the other material in the watercourse as it passes through its area to prevent flooding at a point further downstream. As the hon. Member for Hamilton (Mr. T. Fraser) remembers, and as I think he will accept, in the Clause as it stands there is the broad principle that a local authority normally can make byelaws only in regard to any act done within its area. We allow the local authorities to pass byelaws to prevent something happening in their area even if it is a matter which affects a local authority or an urban district further downstream. I think that the hon. Member will agree that that is reasonable.
§ Mr. T. Fraser
It is precisely because I think that it is so necessary that I wanted there to be consultation with the people upstream who will be causing the flooding. That is why we suggested the earlier Amendment.
§ The Lord Advocate
That was not in relation to one local authority and another but in relation to a local authority and an improvement committee under a land drainage scheme. There is a little difference.
The hon. Member for Kilmarnock (Mr. Ross) asked why the provision was limited to land other than agricultural land.
§ The Lord Advocate
The Bill deals only with the prevention and mitigation of flooding of non-agricultural land, as is seen from the Long Title. Even if we had left the Clause as it stands, the provision would have been read as being concerned with flooding within the scope of the Bill. We have merely made it 1121 clear that only non-agricultural land is affected.
§ Mr. Fraser
The Lord Advocate has referred to the Long Title, which enables local authoritiesto take measures for the prevention or mitigation of flooding of non-agricultural land in their areas.The Amendment would seem to go beyond the provisions of the Long Title.
§ Amendment agreed to.