First Schedule.—(PROVISIONS WHICH MAY BE INCORPORATED IN FLOOD PRE- VENTION SCHEMES.) (Hansard, 1 February 1961)

§ Mr. Manuel
I beg to move, in page 12, line 4, after "any", to insert "tree".
This Amendment may appear to be a matter which occasions some merriment, but I am quite serious about it. First, I should like to clear the House's mind by saying that I am not the sort of person who would like to see a lot of trees felled. If I could preserve a tree then I would be the first person to do so. I do not like the felling of trees. My family was in the forestry trade, and, whether this has left its mark on me or not, I am all for the preservation of trees.
In the First Schedule, however, we read, in paragraph 4, The local authority may, for the purpose of carrying out the operations or of executing any temporary works, cut and lay aside or remove, or cut and use for the aforesaid purposes, any bush or scrub timber growing on land situated within the limits of lateral deviation shown on the plans referred to … for a flood prevention scheme. The local authority is now having placed upon it the onus of dealing with emergency works when flooding takes place, with a village street and houses becoming involved, because of a river bank bursting. Such works usually mean sandbagging to get the river back into its course, and the authority has the right, in carrying out those works, to cut bush or scrub timber.
Scrub timber and a tree are quite different things. Scrub timber has no value, but one can have a tree—perhaps only a small one but still of some value—which impedes sandbagging and the temporary execution of the work, and it is wrong that the Government should protect land-owning interests to the extent that such a tree may not be cut down.
10.45 p.m.
I also want to ask the Under-Secretary of State about Clause 3 (b), which is connected with the First Schedule, and deals with the specific … power to remove any dam or other work situated, or any tree growing, in, on, over or under the watercourse. Local authorities would not want to cut down trees—or scrub timber or bush—unless they needed to do so. Such power as I propose would enable them to 1132 take quick remedial action when flooding occurred. For instance, a tree might fall or be blown against another tree and, in the disturbance of the roots, the banks of the stream might be fractured, allowing the water to get through, possibly flooding into dwellings or on to roads. Is a local authority to be debarred from removing that tree so that it can repair the fractured embankment? Many trees grow near streams and their roots intertwine and form part of the bank. The example I have cited is not unlikely. Without flogging the matter, I hope that the Government will accept the Amendment so that local authorities can undertake temporary repair or remedial work as quickly as possible.

§ Mr. Willis
I support the modest request of my hon. Friend the Member for Central Ayrshire (Mr. Manuel). I had hoped that we should hear the hon. Member for Edinburgh, West (Mr. Stodart) speaking on this Amendment, because I understand that he is interested in trees and their removal and their value, I have no doubt that he has a great deal of practical experience which he could offer to the House, and I hope that we shall hear from him.
My hon. Friend's request is that a local authority shall have power to take down a tree where it is necessary to do so to safeguard urban property—houses and so on. I understand that the Government have not included such power, because a tree has some value to the landowner and the power would mean that a landowner might lose the few pounds which the tree is worth. It is intolerable that people should have their houses flooded because the Government think it wrong for a local authority to get the value of a tree.

§ Mr. Manuel
It does not get its value; it takes it down.

§ Mr. Willis
I said earlier that the Government do not trust the local authorities. The Government are displaying a shocking attitude of mind. I do not think that they know anything about councils, or councillors, or the type of people with whom they will have to deal. If they did, they would not treat them in this way.
I hope that the hon. Gentleman will give a favourable reply to this humble Amendment. It is a minor one on 1133 which the Government could easily yield and do themselves credit and earn the gratitude of the Opposition.
I am not certain about these definitions of bush and scrub timber. I am not certain when a tree ceases to be a tree and becomes scrub timber. I know what scrub timber is. So does anyone who is familiar with the Highlands. But when does a tree become scrub timber? When does a tree cease to be a tree?

§ Mr. Arthur Tiley (Bradford, West)
The hon. Gentleman ought to send for George Washington. We could all then go home.

§ Mr. Willis
That may seem funny, but this is a point of substance. Local authorities will have to administer the Bill. When a local authority sees something, it will have to make up its mind whether it can take it down. One person might say, "This is a tree. We cannot touch this". Somebody else might say, "We will regard it as scrub timber and pull it down and say nothing about it ". When does something cease to be what it is and become something else?
I hope that the Government will be kindly disposed towards the Amendment in view of the earnest and cogent arguments advanced by my hon. Friend.

§ Mr. Galbraith
The Opposition are always accusing the Government of not knowing about local authorities. All I can say is that they do not seem to know much about the characters of their Parliamentary colleagues on this side of the House. They regard with suspicion every Amendment resisted by the Government, as though the reason for doing so was the value of the trees to the owners. This, of course, is just not the case.
I argued this matter with the hon. Gentleman at some length in Committee upstairs, and it is extremely difficult for me to say anything more tonight than I said on that occasion. I will try once more, however, to convince him on this point.

§ Mr. Manuel
rose—

§ Mr. Galbraith
The Amendment follows a point made by the hon. Member for Central Ayrshire (Mr. Manuel) during the discussion in Committee upstairs on the First Schedule. Its effect 1134 is to make it possible for a local authority to cut down trees as well as bushes and scrub to enable it to carry out a flood prevention scheme or execute temporary works authorised by paragraph 2 of the First Schedule. The hon. Gentleman seems to have forgotten that aspect of it.
Local authorities carrying out a scheme must have reasonable discretion to remove bushes and other minor obstructions in the way of their legitimate operations without having to specify them individually in the scheme.
The Schedule in its present form gives them this discretion. The hon. Gentleman will be glad to know that to that extent we trust local authorities. But the cutting down of trees, as I indicated during our previous discussions on the subject, is a matter of a major and permanent kind. That is the point. It is not the value of the trees; it is the fact that the operation of felling them is major and permanent, and not temporary. Once a tree is cut down it is cut down.

§ Mr. Manuel
What if it is in the nature of temporary work?

§ Mr. Galbraith
The work may be temporary, but the cutting down of the tree is not. That is what the hon. Member does not seem to understand. It can take twenty or thirty years for a tree to grow. Because of that we feel that the operation should be included in the flood prevention scheme.

§ Mr. Manuel
Is cutting the scrub timber temporary?

§ Mr. Galbraith
That is quite different. Scrub timber, unlike a tree, grows up quickly again.
I say again what I have said during our previous discussion on this matter; the cutting down of trees is an operation of a major and permanent kind. But if trees require to be cut down—and there are cases where they do as part of the job of preventing flooding, it is right that the operation should be brought under control by including it in a flood prevention scheme, as indeed is provided for in Clause 3 (2, b).
Another difficulty that the hon. Member and his hon. Friends seem to have failed to appreciate is the fact that not merely one tree may be involved but a whole host of trees.

§ Mr. Manuel
Do not get frightened.

§ Mr. Galbraith
There is nothing in the Amendment to prevent a local authority cutting down any number of trees. If it were accepted, it would have the effect of giving a local authority unfettered discretion permanently to remove trees for what might be purely temporary purposes. That would be going very much further than is necessary to enable them to get on with the job, and although I understand what the the hon. Member is getting at, I cannot accept the Amendment.

§ Mr. Steele
That was an amazing speech. The hon. Member started off by saying that he trusted the local authorities, and accused us of being critical and saying that the Government knew nothing about local authorities. Then, having said that the Government trusted local authorities—that they were made up of men of great virtues, who would not do unreasonable things—he went on to suggest that if the Amendment were carried they would get out their hatchets and go round cutting down trees all over the place. He said that we were concerned not merely with one tree but perhaps with a whole host of them. He created a picture of members of local authorities cutting down any number of trees. What could be more ridiculous?
The Minister also said that he had already given my hon. Friend all the answers to the points he had raised, but the question of the tree to which my hon. Friend referred arose in connection with another portion of the Bill; it was not in the Schedule at all. It was the tree in the burn. The hon. Member is now referring to the tree which is not yet in the burn. He is confusing two separate issues. He said that it is not one tree. If we get a dozen trees it becomes a bush, and we know all about going into the bush. According to this, local authorities will have power to cut down a bush. Frankly, I do not think that the hon. Gentleman can see the wood for the trees.

§ Mr. Willis
It is a four-letter word.

§ Mr. Steele
Will not the Under-Secretary give further consideration to the proposed Amendment and agree to the word "tree" going into the Bill?

§ Mr. Ross
I hesitated to rise because I thought the Under-Secretary was going to respond to the invitation of my hon. Friend the Member for Dunbartonshire, West (Mr. Steele). Like him, I have found it very difficult to follow the Under-Secretary's speech, particularly his opening words. I do not think he did justice to himself. I heard the recurring theme that trees might have to be cut down, but, if so, they would go into a scheme. But we are dealing with the First Schedule, and it starts by saying: Provisions which may be Incorporated in Flood Prevention Schemes". I therefore ask the Under-Secretary what he was talking about. In other words, my hon. Friend's Amendment seeks to do what the Under-Secretary says should be done.
What is his answer to that? Is it just sheer prejudice? Does he think that trees should not be cut down? He tells us that Lit might well be that a tree should be cut down. If he believes that, he ought to accept this Amendment. If he believes that the cutting down of a tree should be covered by a scheme, he had better accept the Amendment, because that is the purpose of this Schedule, and paragraph 4 is the only place where it can go in.
I ask the Under-Secretary to look at paragraph 4.: The local authorities may, for the purpose of carrying out the operations … remove any obstructions therefrom. A tree is an obstruction. Yet, according to the Under-Secretary, it cannot be removed. I would 'have understood the hon. Gentleman if he had said that the 1137 Amendment was unnecessary because of these words. All that my hon. Friend the Member for Central Ayrshire (Mr. Manuel) is asking is that a flood prevention scheme should not be held up or spoiled because of the impossibility of cutting clown a tree. That is all.
I really think that the hon. Gentleman is still living in the kind of unreal atmosphere of the speeches that he made in Committee, when he visualised local authorities cutting down tree after tree, and emulating the Forestry Commission—with the difference that the Commission was probably replanting but that the local authority was not. I ask him to look at this matter from a cold, logical point of view, and answer this question. If the tree is an obstruction, can it be cut down?
If he insists that in a scheme the tree must be shown as cut down, where else can that be shown other than in paragraph 4 of the Schedule? I would ask him to appreciate that although there has been a certain amount of humour in this debate—and quite good humour—this is a very serious Amendment, and I sincerely hope that he will see his way, if not to accept it at least to say that he will look at it again.

§ Mr. Galbraith
By leave of the House, may I just say that I am very sorry that, in spite of the serious approach of the hon. Member for Kilmarnock (Mr. Ross) and the humorous and delightful approach of the hon. Member for Dunbartonshire, West (Mr. Steele), I cannot accept this Amendment. Whatever the hon. Member for Kilmarnock may think, it would have the effect of giving the authority unfettered discretion permanently to remove trees for what might be purely temporary purposes. As the removal of a tree is a permanent thing, I am afraid that I cannot accept the Amendment.

§ Mr. Ross
May I ask the hon. Gentleman to answer this question? Since this Schedule deals with provisions within a scheme, which can either be passed or amended by the Secretary of State, what has he to lose by the acceptance of the Amendment? To my mind, everything that the hon. Gentleman says is wrong—quite wrong.

§ Mr. T. Fraser
The Under-Secretary was misled earlier into thinking that we 1138 are here considering only works of a temporary nature. He based his whole speech on the proposition that my hon. Friend was asking for power to remove a tree for purely temporary works. He said that we could not put the tree back again. He has not listened to the serious speech of my hon. Friend the Member for Kilmarnock (Mr. Ross). The first word in the second line of paragraph 4 is "operations"—and that means flood prevention operations; they are all the operations that the local authority might carry out under the terms of the scheme.
These are the operations. It is for the purpose of carrying out the operations that the local authority may … cut and lay aside or remove, or cut and use for the aforesaid purposes, any bush or scrub timber growing on land situated within the limits of lateral deviation … Does that include a tree, or does it not? If these operations are part of the operations included in the scheme, they are not of a temporary but of a very permanent nature. I suggest that in many cases these schemes must include the removal of the trees. Is the hon. Gentleman saying that they must never include trees? If he will not have "tree" linked with "bush or scrub timber" then, of course, trees could not he included.
We are not dealing with temporary works at all; we are dealing with operations. My hon. Friend the Member for Kilmarnock and I thought that the answer of the hon. Gentleman would be that the word "tree" is unnecessary, because at the end of the paragraph power is given to remove "any obstructions". That would surely include trees, but the Under-Secretary does not admit that. Any local authority would be convinced that there was no power in any circumstances as part of the operations listed in the First Schedule to cut down a tree—not a whole forest, but trees, the removal of which is necessary for carrying out the operations set out in a flood prevention scheme approved by the Secretary of State.
I should have thought that there was no harm in putting in the word "tree" before "bush". If "any obstructions" include trees, those obstructions are equally related to temporary works as to operations under a scheme. It may be that the whole paragraph will have to be looked at again. We should not 1139 mind that. All we were concerned about was that the Under-Secretary, for some reason which was obscure. was quite determined that a local authority in seeking to prevent flooding of people's homes would not be willing to cut down someone's trees.
I wonder if the Secretary of State will undertake to have another look at this matter and consider whether "any obstruction" could conceivably include trees. Surely "any obstruction" could conceivably include trees and operations under a scheme could include removal of trees. Surely, the words "any obstruction" relate to temporary works as they relate to operations under a scheme. Any lawyer could easily convince himself and any local authority—and, I hope, at the end of the day, a court—that a tree was included in the more general phrase "any obstructions". If it is the desire of the Under-Secretary that a tree might be removed as part of the operations of a scheme but must not be removed as part of the temporary works, paragraph 4 must be looked at again.
The Under-Secretary must agree that there is some ambiguity in paragraph 4 if his intention is that a tree may be included in permanent works and operations, but not in temporary works. If so, I hope that he will at least undertake to have another look at the matter.

§ Mr. Galbraith
If I may speak again by leave of the House, for the third time, it may be "third time lucky". I think that the difference between us comes from whether or not a tree is to be specified in the scheme. I say that it has to be specified, because it is permanent. The hon. Member wishes it to be treated like a bush or scrub and, therefore, not specified. I am afraid that I cannot resile from my position.
The hon. Member for Hamilton (Mr. T. Fraser) asked an interesting question about obstruction. He wanted to know if it could include a tree. I am advised that this is a matter of legal interpretation which could be finally decided only by the courts—

§ Mr. Willis
The courts might settle it against the Government.

§ Mr. Galbraith
I prefer to leave the interpretation of the word "obstruction" to the court.

§ Mr. Steele
The Government must put into the Bill words which mean something.

§ Mr. Galbraith
It would be better, I think, to leave this matter as it is. The real difference between us is whether a tree should be treated as scrub and whether it can be removed without being specified in a scheme. The view to which I incline is that, because there is something more permanent about dealing with a tree than there is about dealing with a bush, it should be specified. For that reason, I very much regret that I cannot accept the Amendment.

§ Mr. Willis
The hon. Gentleman must appreciate that we are trying to help the Government and stop them from getting into a difficulty. My hon. Friend has simply asked the Government to look at this again, because the phraseology is ambiguous. We ask the Government to do this in their own interests. The hon. Gentleman should at least say that he will look at it.

§ Mr. Maclay
I beg to move, That the Bill be now read the Third time.
I am inclined to comment that another Scottish Bill moves relentlessly on its way to the Statute Book. It is extremely difficult to find anything new to say about any part of what is in the Bill now. I was not privileged to be present at all the discussions in Committee, but I kept a watchful and interested eye on what went on there.
It would be a grave mistake on my part if I risked spoiling the flow of eloquence and repeating the many other things which have been said about the Bill. I should like to confine myself to the classic formula for Third Reading. The Bill was a good Bill when it started. It has undoubtedly been improved in the process of going through its various stages in the House. Now on its Third Reading I can only commend it to the House.

§ Mr. Ross
Inevitably I find myself in disagreement with the Secretary of State. He said that it was a good Bill to start 1141 with and it is better now. I say that it was not such a good Bill to start with, but it is a little better now.

§ Mr. Willis
But it is still not good enough.

§ Mr. Ross
It is still not good enough. It certainly does not measure up to the needs of flood prevention or the expectations of those concerned with it. There may be some hon. Gentlemen opposite just waiting to make their contribution today on Third Reading.
We must appreciate that the Bill does not of itself do anything directly in relation to flood prevention. It merely enables somebody else to do it. That somebody else is the local authority. Whether the local authority will accept this responsibility depends upon the provisions of the Bill. That is one limitation. There is the further limitation that the Bill limits the operations in relation to flood prevention to non-agricultural land. We on this side think that those two limitations mar the Bill.
We must appreciate that hitherto the responsibility for flood prevention has not lain upon local authorities or any other body. Therefore, we are asking local authorities to assume a burden which will cost them some money.
If we really want flood prevention schemes carried out, the financial arrangements are very much in the nature of an inducement to local authorities. But there is no guarantee that the local authority will get anything. The position is now a little better than it was at the start of our proceedings on the Bill. It was possible then for a local authority, if it could persuade the Secretary of State, to receive up to 50 per cent. We have now managed to get the Secretary of State to make it up to 100 per cent., but the thing to notice is that there is no guarantee of anything at all.
The second point is that there are certain aspects of this assumed responsibility for which local authorities will receive no grant. They will get a grant only for particular capital works; but, once they assume the responsibility and continue to maintain, there is no grant for maintenance or for anything that happens in the course of that maintenance which makes them liable to pay compensation. They must face that new 1142 liability on their own. Obviously, a local authority will balance the interest of what benefit it is likely to obtain from the Bill against the new financial responsibilities and the unknown liabilities for compensation. Therefore, we should not delude the people of Scotland about what the Bill means. We must make it absolutely clear that widespread flood prevention is not to be expected from this legislation.
While my hon. Friend the Member for Central Ayrshire (Mr. Manuel), for example, may hope that the Bill will apply to the Glengarnoch valley, we must keep in mind that the Secretary of State has told us that all that is proposed to be spent in the first year for the whole of Scotland on flood prevention is £20,000. When, under a previous Act, the right hon. Gentleman proposed to spend that amount in two years, what he actually achieved was the spending of only £6,000. Let us, therefore, not be deceived about what is likely to happen or what can happen, for we have the long-stop of the Secretary of State which obviously will prevent the widespread assumption of these powers that will attract grant.
The difficulties of flood prevention in Scotland are likely to be more serious in the coming years by virtue of the fact that what progress was being made under the 1958 Act was more or less killed off with the coming of this Bill. In other words, we were doing more under existing legislation than we are now likely to do under the Bill.
I ask the Secretary of State what Departmental arrangements he proposes to make to deal with the circumstances that now arise. This is one problem of flood prevention which in essence has only one solution—flood prevention operations. But we shall now have a second department within one Department dealing with the same problem. If the flood prevention relates to one kind of land there is one department. If it relates to another kind—urban land—there is another department. The thing is rather silly.
Of course, this is the central weakness of the Bill. It is a weakness which we have tried to bring out during the passage of the Bill. To a certain extent we have failed, I think because the Government were committed to the limitations of which I have spoken. But 1143 I do not think that it will be the last we hear of flood prevention if we are ever to tackle it properly. As to the points that we have raised during today's discussions which are still unanswered—and I am sure that even some points which the Government resisted will have gone home—there is still time for repentance in another place, and we sincerely hope that the Government will take that chance.
In so far as the Bill will help small local authorities where a small amount of expenditure will prevent flooding, it is a useful Measure, but do not let us deceive either ourselves or the public that this is the answer to the flooding problem in Scotland, because it is not.

§ Mr. Manuel
What the Secretary of State for Scotland said in his opening remarks is true, that the Bill has been improved during its passage. Although it is a smaller Measure than many of us had hoped for, I hope that in my own constituency we shall get some real results from it.
It is recognised that for the first time the local authorities are being brought in under the Bill. Previous legislation has been completely ineffective. Under Clause 6, as amended, local authorities will be asked to take on very heavy responsibilities. They can be asked to clear any watercourse. Paragraph 2 of the Explanatory and Financial Memorandum to the Bill makes that abundantly clear, for it says: Councils are empowered to cleanse and maintain watercourses and to carry out works designed to remove the risk of flooding in their areas. That is a wide range. Previously local authorities have had no obligation to undertake' the powers now delegated to them.
The sum of £20,000 is laid down for the first year. Those who have studied the problem recognise that this is a very small amount. The Secretary of State may have ideas about this. Has he any ideas about how this sum could be increased as schemes come in? Has he an upper limit in his mind? How much increase can we expect as schemes come in? It would be a very bad thing if the hopes of local authorities and householders in areas subjected to flooding were built up that there would be some 1144 relief for them but schemes coming in to the Secretary of State for approval were held up because of lack of money.
I welcome the Bill, but I am sorry that it will not give a lead to local authorities, as would have been the case had our last Amendment been accepted, where there is a doubt and lawyers will have to be consulted before the local authorities know what their duties are in relation to the operations that they may undertake.

§ Mr. Galbraith
I am grateful for the qualified welcome that hon. Gentlemen opposite have given to the Bill. There is, of course, another place where, as the hon. Member for Kilmarnock (Mr. Ross) pointed out, anything which is not quite clear can be considered.
I think, however, that I can allay the doubts and fears of the hon. Member for Central Ayrshire (Mr. Manuel). I do not think there is any likelihood of an upper limit being placed on the money available for flood prevention schemes.
It might interest the House to know that, in anticipation of the Bill becoming law, we have had inquiries from three councils which propose to carry out flood prevention schemes, the costs of which range from £9,000 to £36,000.