HC Deb 18 July 1963 vol 681 cc834-42
Sir K. Joseph

I beg to move, in page 31, lire 39, to leave out subsections (1) to (6) and insert: (1) Where the holder of a licence under this Act to abstract water (in this section referred to as "the original holder") is the occupier of the whole of the land specified in the licence as the land on which water abstracted in pursuance of the licence is to be used (in this section referred to as "the relevant land"), and either, being an individual, he dies, or by reason of any other act or event the original holder, whether an individual or not, ceases to be the occupier of the whole of the relevant land and does not continue to be the occupier of any part of that land, and (either immediately after his death or the occurrence of that other act or event or sub sequently) another person (in this section referred to as "the successor") becomes the occupier of the whole of the relevant land,—

  1. (a) the original holder (except where, being an individual, he has died) shall cease to be the holder of the licence, and
  2. (b) the successor shall become the holder of the licence.
(2) Where the preceding subsection applies, the successor shall cease to be the holder of the licence at the end of the period of one month beginning with the date on which he became the occupier of the relevant land unless before the end of that period he has given to the river authority notice of the change in the occupation of the relevant land. (3) Provision may be made by regulations under this Act for conferring on a person who, after the death of the original holder or the occurrence of any other act or event whereby the original holder ceases to be the occupier of the relevant land or of part of that land, becomes the occupier of part of the relevant land, a right in such circumstances as may be specified in the regulations—
  1. (a) to become the holder of the licence, subject to provisions corresponding to the last preceding subsection, or
  2. (b) to apply for, and to the grant of, a new licence containing provisions (as to quantities of water and otherwise) determined in accordance with the regulations by reference to the provisions of the original licence,
or for conferring on the original holder, where he continues to be the occupier of part of the relevant land but ceases to be the occupier of another part of that land, a right, in such circumstances as may be specified in the regulations, to apply for, and to the grant of, a new licence as mentioned in paragraph (b) of this subsection. (4) Any regulations made in pursuance of the last preceding subsection may provide that, in relation to an application for a licence made by virtue of the regulations, or to a person entitled to make such an application, the provisions of this Part of this Act shall have effect subject to such exceptions and modifications as may be specified in the regulations. Could we at the same time take the Amendments to page 33, line 36 and Clause 52, page 50, line 22, Mr. Deputy-Speaker?

Mr. Deputy-Speaker

If the House so pleases.

Sir K. Joseph

The Government have never concealed the fact that we have not been quite happy about the provisions in the Bill as drafted for the succession to licences. There has been no provision in the Bill as at present before the House for the succession to licences where the land with which the licence runs gets divided.

We are proposing by these Amendments to provide clearly for the succession to the licence where the land passes on to the next licence holder undivided, but we provide by this Amendment that for all other contingencies where the land is divided the Minister shall have the power and duty, by regulations, to lay down the exact procedure. We shall expect to produce these regulations, which will be subject to Parliamentary procedure, before the end of the initial period.

I apologise for having this rather complicated matter to write into the Bill at this stage.

8.30 p.m.

Mr. C. Hughes

I have one question to put on this Amendment, and I think that both my hon. Friend the Member for Leicester, North-West (Sir B. Janner) and the hon. Member for Crosby (Mr. Graham Page) wish to argue the same point.

As the Minister said, we have not had a great deal of time to consider these complicated provisions. This is a little unfortunate. We shall try to do our best. In subsection (2) it is provided that Where the preceding subsection applies, the successor shall cease to be the holder of the licence at tile end of the period of one month beginning with the date… At the end of one month, the successor to a licence loses the licence unless he or she has given the requisite notice to the river authority of the change of occupation of the land.

The question I put, with, I think, the support of my hon. Friend and of the hon. Gentleman opposite, is this. Is not one month, in all the circumstances, far too short? An example of what might happen has been suggested to me. The widow of a deceased licence holder remains in occupation of the land but, if she fails to give notice within one month, the licence lapses. Even if the land were left by will to someone else, the licence would, as I understand it, still lapse if the notice were not given within one month.

It may not be possible to take out a grant of administration in time. I suggest to the Minister—I understand that this would be acceptable—that the period should be extended to two months. It is more than possible that if the period were maintained at one month cases of hardship might arise, and I am sure that it is the wish of the House generally that this should be avoided if at all possible.

Sir Barnett Janner (Leicester, North-West)

I support the appeal made by my hon. Friend the Member for Anglesey (Mr. C. Hughes). Those of us who practise in the law know that questions of time can be extremely difficult. Quite often, a person who has some injustice done to him loses his opportunity to have the matter put right if he overlooks that there is a limitation of time. I myself have often come across cases—I am sure that the hon. Member for Crosby (Mr. Graham Page), who is in the same profession, will have done so, too—in which there has been serious hardship due entirely to oversight or to ignorance of the limiting period within which steps could be taken.

The point we raise now can be of considerable importance to the successor to the land. One realises that there must be a limit of time, but the period of one month will give rise to certain technical difficulties, as my hon. Friend the Member for Anglesey has explained, because it may be impossible, in some circumstances, for the person who is legally entitled to succeed to take the necessary step.

I am sure that the Minister will appreciate that we are trying not to get a special concession but to deal with a situation which might easily arise and in which considerable hardship might be caused to a person if he were confined to this limit. I would go further and say that there might be some provision whereby a person who had gone beyond the limited period should still, in a reasonable time, have the opportunity to apply for just treatment on giving sufficient and reasonable grounds for having overlooked the statutory period.

I was perturbed to hear that although the Law Society asked for the opportunity of discussing the Bill's provisions with the Minister, its application was not favourably considered. The Law Society has vast experience of legal procedure. I am sure that the Minister will appreciate that what I am about to say will be said in the most friendly spirit. In cases of this sort, it is important that a professional body like the Law Society should not have to apply for permission to discuss certain matters with the Minister or the Department concerned. In fact, the Department should seek every opportunity of consulting the Law Society so that it might give its views on matters of which it has experience.

The Minister will understand that we are concerned about this. I hope that he will take into consideration the difficulties which can be caused if a time limit is such that it is almost impossible in many cases to observe it. I hope he will have this matter put right at a later stage of the Bill. Meanwhile, perhaps he will assure us that he will consult the Law Society on this point.

Mr. Graham Page (Crosby)

I think that I can say without conceit that my right hon. Friend the Minister has ranged against him three practising solicitors behind whom is the Law Society. This Clause, as drafted, is extremely difficult to understand, but, if I understand it aright, it means that if, for example, a relative living with the original holder of a licence goes on living in the premises on the relevant land after the original holder dies, that relative must give notice to the authority within one month of the death.

This is quite unrealistic. In any normal case it is not possible to get representation of the estate of a deceased person within one month. By this Clause the relatives are put to an almost impossible task which may cause considerable hardship because, if they do not give notice within one month—and they may not know anything about having to give notice for this—the authority will have the right to grant a fresh licence, with fresh charges, fresh fees, fresh conditions, and so on.

I am not sure whether we have read the Clause right. It certainly states that where the original holder is the occupier of the relevant land, and being an individual he dies, and another person, referred to as "the successor", becomes the occupier of the whole of the relevant land, then the original holder shall cease to be the holder of the licence and the successor shall hold the licence. In the middle of those words in paragraph (a), however, there is interposed in parenthesis (except where, the previous holder having been an individual, he has died) The whole of that sentence states that the previous holder (except where, the previous helder having been an individual, he has died) shall cease to be the holder of the licence". If he has died, surely he has ceased to be the holder of the licence. Why, then, have the words in parenthesis? This seems to refute the old saying that "You cannot take it with you when you die." The Clause seems to envisage that you can take it with you when you die, and that it is necessary for the draftsman of the Bill to say specifically that the gentleman who takes the licence with him when he dies does not come within the Clause. Although that is the logic of the words used in the Clause, it seems to me to be quite illogical and I should like my right hon. Friend to explain why these words appear.

I can only think that in sense, one must disregard those words and assume that subsection (2) applies when a person who holds the licence dies and someone succeeds to it who is in occupation and that person must give notice within one month of the death, otherwise the licence ceases and application must be made for a fresh licence, to which may be applied new conditions and charges. If that is the case, it is not recognising the normal position in the case of a death.

The hon. Member for Anglesey (Mr. C. Hughes) asked whether we could not extend the period from one month to two months. That would not be sufficient. I should regard a six-month period as reasonable. When somebody dies, every person who has a debt against the estate is always prepared to wait that period until representation has been granted. All the authorities who have claims against the person who has died always refrain from pressing their claims for a period which is sufficient to obtain representation to the estate.

Nobody would be harmed by a six-month period in this instance. Who would be the loser if that were the period? Surely, it would not be the authority. What would it lose by not having this notice? If the authority inquires and is informed that the licence holder has died and representation is being obtained to his estate, like all other authorities it would expect to wait until representation was obtained.

I do not know what we can do about it at this stage, unless, perhaps, my right hon. Friend will say that the words in parenthesis which I have quoted take the case entirely out of subsection (1) and somehow put it into the subsection under which regulations can be made about it. Then, there might be some escape from the Clause. Otherwise, it is difficult to know what to do at this stage. I assure my right hon. Friend, however, that the Clause cannot be worked reasonably in practice and that in many cases it may cause great hardship.

8.45 p.m.

Sir K. Joseph

After some months on the Bill, I must confess that I am for a moment uneasy about something. Hon. Members have shown reason to doubt whether we have got it exactly right as drafted. I am not sure that there is anything we can do at this stage even if I were satisfied that there was a better way of handling it.

The problem is that the control of water is important. We cannot lightly allow unlicensed, uncontrolled use of water to go on for a period of months, possibly during a whole season of water shortage. Therefore, it is important to keep the period without control as short as possible.

On the other hand, I do see that a widow might not realise she had to register within a month and that this might lead to some difficulty. What I suggest I do is to draw to the attention of river authorities—and there are ample powers in the Bill to enable me to prescribe this sort of thing—the importance of marking very clearly, in large letters, on the licence, that on the death of the licence holder the application for transfer has to be made within a month.

Let me say, in answer to some of the points which have been made, that the succession to the land concerned is not legal succession; that is to say, a widow would not have to take out letters of administration—or any of the legal phrases which are beyond me at the moment—before she could apply for continuation of the licence. The succession is to the occupation of the land. That, I hope, removes one difficulty.

Secondly, the one month runs from the occupation of the land, not necessarily from the death. In the case of a widow who is living with her husband on the land, the month will run one month from the death. If somebody comes into occupation by reason of a death the month will run from the occupation of the land.

Sir B. Janner

I do not think that that contention is quite correct. I do not see how we can have occupation. Does that mean that if somebody illegally occupies the land he will stand in the place of the legal occupier? I do not think the Minister would be right about that. Would the Minister consult the Law Society on the matter?

Sir K. Joseph

Yes, I will certainly consult the Law Society before these regulations are made. That I will gladly undertake to do.

Perhaps I could correct a mistake I made previously when I referred to the regulations passing the parliamentary procedure. I should have said that they will pass through the parliamentary procedure of the negative sort.

I think that the means I have indicated, clear marking on the licence of the need to register after the death, and to do so within one month of the death, will reassure hon. Members that this will be workable. I know we all agree that a fairly rapid succession to the licence is important for the control of water. On the other hand, I accept that the period must not be too short, else the effects could be draconic. I will certainly consult the Law Society, and if it becomes necessary, as a result of any consultation, I will here and now bind myself to tell river authorities that they must proceed in a certain way in administering even the powers which are in this new Clause in the Bill.

Mr. Graham Page

My right hon. Friend will realise, of course, that river authorities will not be able, if I may so put it, to get out of the Act. They are told, and are given a mandatory statement here, that the licence comes to an end at the end of that month. What month it is is rather doubtful, because my right hon. Friend said it runs from occupation. In the case of an intestacy I think the occupier, till the grant is obtained, is in fact the President of the Probate, Divorce and Admiralty Division. If he has to come into this during that period of one month, it does raise not a little difficulty.

Mr. C. Hughes

I should like to support what the hon. Gentleman the Member for Crosby (Mr. Graham Page) has said, and make a suggestion to the Minister. The Minister said he feels in doubt about this matter. Is there not another course open to him, namely, that when these Amendments go to another place for consideration it will be possible for the Government to substitute "two" for "one" in this Amendment? Or three or four, as the case may be?

Sir K. Joseph

The answer to the question just put to me is that I do not know. I shall consider that and see whether it is practicable. It would have implications for this House, also. I undertake to consult with the Law Society about the regulations to be made under this Amendment.

Amendment agreed to.

Further Amendment made: In page 33, line 36, leave out from "and" to end of line 39 and insert: where such licence is transferred by virtue of any such order, or by virtue of any other statutory provision, or is included in any sale or lease under section 122 of the Public Health Act 1936, the person to whom it is transferred, old or leased shall become (in the case of such a transfer, to the extent specified in the statutory provision in question, and, in the case of a lease, for the period of the lease) the holder of the licence for the purposes of this Act. (8) Where any person who becomes the holder of a licence by virtue of the provisions of this section or of regulations made there under gives notice to the river authority in accordance with those provisions, or any person who becomes the holder of a licence by virtue of the last preceding subsection notifies the river authority that he has become the holder of the licence, the river authority shall vary the licence accordingly; and where, by virtue of the provisions of this section or of any such regulations a person ceases to be the holder of a licence in such circumstances that no other person thereupon becomes the holder of it, the licencs shall cease to have effect".—[Sir K. Joseph.]