Clause 49.—(RIGHT OF ACTION AGAINST RIVER AUTHORITY.) (Hansard, 18 July 1963)

§ Mr. Temple
I beg to move, in page 48, line 12, after first "that", to insert "(a)".
It may be convenient to take with this Amendment the Amendment in page 48, line 19, at the end to insert: or (b) when granting or varying such a licence the river authority had taken all such care as in all the circumstances could be reasonably expected to ensure that the abstraction (or, as the case may be, the obstruction or impeding of the flow of the inland water) authorised by the licence would not derogate from the protected right of the plaintiff. (4) For the purposes of a defence under paragraph (b) of the last foregoing subsection the court shall in particular have regard to the knowledge which when granting or varying the licence was or could reasonably have been expected to be at the disposal of the river authority as to the effect on the protected right of the plaintiff". My right hon. Friend the Member for Guildford (Sir R. Nugent) has asked me to apologise to the House for his absence. He has had the good fortune to have to be away on the Thames today looking after Conservancy business. The onus has therefore fallen upon me to speak on behalf of the River Boards Association on this occasion.
This matter was discussed very fully in Standing Committee and is regarded as of prime importance by the Association and it will, therefore, be of prime importance to the river authorities when they take the place of the present river boards. I draw attention not particularly to the words, but to the object underlying the Amendment.
851 In Committee, the Minister said: If there proves to be a way in which we can move a step to help my light horn. Friend without weakening the value of the licence…".—(Official Report, Standing Committee F, 18th June, 1963; c. 523.] and he went on to say that he would do so. Unfortunately, it appears that he has not been able to take that requisite step and that is why I am moving the Amendment.
It seeks to deal with the case where abstractors who are injured by a breach on the part of the river authority have a right of action for damages against that authority. It will be noted that under Clause 29(2) a river authority has a duty laid upon it not to grant a licence which will derogate from the rights of any person with protected rights under the Bill. I will assume that every hon. Member knows exactly what a protected right is. It is well defined in the Bill. This is the position with which we are faced. A river authority will have an obligation to pay damages if in ignorance it issues a licence which will derogate from the rights of those people who have protected right sat the time.
It is significant that under Clause 50 the Minister has a right to reimburse a river authority should the Minister under his own powers grant this licence which has not been granted by the river authority. I ought to draw the attention of the House to the fact that this is a permissive right on the part of the Minister, and therefore the Minister may be in the position of granting a licence, and the river authority, by reason of the fact that the Minister has granted that licence, may have to pay compensation to the owners of the protected rights whose rights have been derogated from. It is understood that this is almost a unique precedent, and the River Boards Association is very concerned about this burden being placed on the river boards, particularly as for several years they will not have the requisite hydrometric data on which to base calculations as to the flow of particular rivers.
Today's debate has brought out the difficulty of fixing these minimum acceptable flows, and it has further been brought out today that very likely these minimum acceptable flows, due to the absence of hydrometric data, will not be 852 available for several years. It is the task of the river authorities to make the fullest possible use of the available resources of water, but if they feel that they are putting themselves, the taxpayers, and ratepayers at risk by granting these licences, they may well be inhibited from granting as many licences as they would naturally wish to do and thereby make use of the full availability of water resources.
Again, river authorities may be put to considerable expense due to this power in this Clause, because they will have to take out an insurance policy to cover themselves against possible action for damages under this Clause. There may well be considerable public expense if something in the nature of the Amendment which I am proposing is not accepted by the Government.
The Amendment really places the burden of proof on the river authorities who must establish that all reasonable care was exercised on their part". I know that my right hon. Friend has not before been able to accept the principle of this Amendment, but at this late stage I hope that he may have second thoughts and recommend the House to accept an Amendment of this nature, which is essentially reasonable in essence. The River Boards Association thinks that before the Boards shoulder such an unprecedented liability they should be provided with every reasonable defence so that they may safeguard public funds.

§ Mr. Corfield
I know that my hon. Friend will forgive me if I try to answer this briefly, because I think that the basic argument was mulled over a good deal in Committee upstairs, and this Amendment only raises a variance of it.
Basically we are concerned with the principle of the Bill by which a licence shall be so to speak as gilt-edged as we can make it, something which really will give the licence holder confidence that the water he is licensed to abstract will be available and he can build his business or whatever it is on that basis.
The corollary of that is that the duty of the river authority must be very nearly absolute if this is to be consistent with a licence of the type that I have mentioned. I appreciate the fears of the 853 river authorities, or the river boards as they are now, but I think that there is another serious objection to the phraseology of the Amendment which says …in all the circumstances could be reasonably expected to ensure that the abstraction…authorised by the licence would not derogate… This not only has the effect of giving an extra defence. It also could well have the effect of throwing into doubt the sort of information with which a river authority ought to supply itself and the speed with which it ought to get on with the duties falling upon it under the Bill.
It always introduces matters on which there can be considerable argument, uncertainty and possibly litigation when there are phrases such as— as in all the circumstances could be reasonably expected to ensure that the abstraction". This would be a weapon which in the and would afford very little defence. It would lead to a great deal of litigation and argument. In so far as it formed a defence, it would weaken the value of the licence.Basically, I come down to the argument that the licence and its gilt-edged status is so fundamental to the Bill that I must advise the House to reject the Amendment.

§ Mr. Corfield
I beg to move, in page 48, line 17, to leave out "drought" and to insert "shortage of rain".
This is another shattering Amendment to substitute "shortage of rain" for "drought".