§ 5.30 p.m.
§ Sir K. Joseph
I beg to move, in page 49, line 38, at the end to add:(3) Where under section (Application by owner of fishing rights for revocation or variation of licence) of this Act—768
- (a) the Minister determines that alicence shall be revoked or varied, and in consequence of that determination compensation is payable by a river authority in respect of the revocation or variation of the licence, or
- (b) the Minister determines that a licence shall be revoked or varied, and in consequence of that determination compensation is payable by the river authority under subsection (7) of that section in a case where the licence was granted in compliance with a direction given by the Minister, or
- (c) the Minister determines that a licence shall not be revoked or varied, and in consequence of that determination compensation is payable by a river authority under subsection (8) of that section,the last preceding subsection shall have effect in relation to that compensation as it has effect in relation to compensation payable in the circumstances mentioned in the last preceding subsection.Am I correct in thinking, Sir Robert, that I can take with this Amendment the new Clause—"Application by owner of fishing rights for revocation or variation of licence."
§ Sir K. Joseph
In Committee hon. Members on both sides were much concerned with following up the implications of the powerful speech made on Second Reading by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) about the effect of the removal of the common law rights, particularly in the interim stage between the second appointed day and the determining of the minimum acceptable flow for any piece of water. In Committee it became more and more clear 769 that what was worrying hon. Members was that during this interim period damage might be done by abstractions lawfully taking place as a result of a licence given by a river authority, to such an extent that sensitive fishery interests might be ruined beyond redemption.
The Government undertook to consider whether anything could be done to safeguard this position. This new Clause is the result of the Government's consideration. What it does is to enable the representatives of a fishery interest, during the period running from one year after the second appointed day until a minimum acceptable flow is applied to any particular stream, to seek the authority of the Minister to vary or revoke any licence which may have been granted for abstraction from that stream if the fishery interest can show damage to itself.
There is power within the Clause for the Minister to take a decision in the public interest on the conflict between the fishery interest and the abstractor. As a result of the Minister's decision, several alternative results may ensue. The Minister may decide that the interest of the abstractor is so predominant in the public interest that it must prevail, that the abstraction must continue, and that therefore the fishery interest must be sacrificed. If that is the decision, then compensation must be paid to the fishery interest on a pre-depreciation basis (with recourse to the Lands Tribunal) by the river authority, and the river authority, and the river authority may, but not must, be indemnified by the Minister.
§ Mr. John M. Temple (City of Chester)
Before my right hon. Friend leaves that point, would he like to say whether any compensation will accrue to those fishery interests which have not a riparian interest? I am thinking of the salmon netsmen in the estuarial waters.
§ Sir K. Joseph
I do not think that I can answer that off the cuff. I shall have to write to my hon. Friend, I am sorry, but I cannot answer straight away on that.
I am reminded that I made a slip when I spoke of one year after the second appointed day. It should be one year after the granting of the licence. I beg the Committee's pardon.
If the Minister's decision is that the fishery interests should prevail and that 770 the licence should be varied or revoked, then, of course, the licence holder will be compensated by the river authority, and again the river authority, though not entitled to indemnification by the Minister as of right, will be able to seek such indemnification if the Minister so decides. This, therefore, is the safeguard which the Government suggest by this new Clause should be written into the Bill.
Certain of my hon. Friends have put an Amendment on the Order Paper, and I hope that it will be proper for me to refer to it in my opening speech. My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and my hon. Friend the Member for Hendon, South (Sir H. Lucas Tooth) have put down an Amendment which will oblige the Minister only to decide in favour of a licence holder if his licence is essential in the public interest. I think I made it plain that the Minister will, in fact, be deciding this invidious conflict by relation to the public interest. What my hon. Friends wish him to do is to decides it only in favour of the licence holder if the licence holder is abstracting water, in what they call the national interest, and cannot satisfy that interest in any other way.
I hope that my hon. Friends will not press this Amendment. It would leave the problem as a very difficult one indeed for the Minister. Do they really mean that a fishery interest, however small, however new, should prevail against the licensed abstraction, however important, however urgent, however irreplaceable? And how do they define "national interest"? Almost all the uses of water that are important have national implications. If an industrialist wants water, the implication is employment. We would all, I am sure, consider employment in the public interest. If a water undertaker wants water for the public water supply, for drinking, cooking and hygiene purposes, that is in the public interest. If a farmer wants water for agriculture that, largely, is in the public interest.
I would have said that the Minister's discretion is better left unfettered and covered, as I have tried to cover it, by saying that he will take the decision in the public interest rather than by binding him only to give a decision in favour of the licence holder in the particular 771 circumstances set down in my hon. Friends' Amendment. I hope that they will not think it wrong for me to have met their argument perhaps in advance. I hope the Committee will feel that this new Clause meets the case put by my right hon. and learned Friend, and meets it in an adequate way.
§ Mr. Temple
I should very much like to welcome this Clause. It represents, in my view, a large step forward. Having spoken both on Second Reading and in Committee on this very vital matter of the common law rights, I feel that my right hon. Friend has gone a very long way to meet the points which were put to him from both sides of the Committee, and, indeed, from both sides of the House, on this matter.
I am convinced that my right hon. Friend has been absolutely right in deciding that the determination of minimum acceptable flow shall be the moment at which the fishery interests will, in fact, have their common law rights taken away from them, for by that time the rivers will be known to be going to be controlled properly by the river authority. I would submit that this Clause has been put down at a very late stage because this matter has been under discussion for a very long time during the passage of the Bill. It was for that reason that I asked my right hon. Friend the question about estuarial netsmen, because, being President of the National Council of Salmon Netsmen of England and Wales, I am afraid that it has not been possible for me in the time available to discuss this matter with the netsmen's interests. I hope that whoever is to reply will be able to clear up this point.
§ Sir K. Joseph
If I may interrupt my hon. Friend, the answer to his question, I am advised, is "Yes".
§ Mr. Temple
I am much' obliged to my right hon. Friend. That is indeed a great relief. Frankly, I would have thought, in all the circumstances and having regard to the great complications of this new Clause, that it might have been wiser had we retained the common law rights. As the Committee will know, common law rights are running concurrently with the pollution legislation and are working very smoothly in that connection.
772 I recognise that river boards, or, rather, certain members of river boards, are concerned about this Clause, but I think that in fairness to all concerned it would be right for us to recognise that river authorities can get rid of any possible liability under the Clause by the determination of minimum acceptable flow in any particular stretch of river. Having said that, I should like to give a general welcome to the Clause.
§ Mr. Denis Howell (Birmingham, Small Heath)
The hon. Member for the City of Chester (Mr. Temple) was good enough to inform the Committee that he is the President of the National Council of Salmon Netsmen of England and Wales. Having taken part in the deliberations on the Bill for a considerable time, it is my considered opinion that the hon. Member has netted a salmon of considerable size in the new Clause. I am rather dubious about whether the Committee should agree to pass it, at any rate without receiving a satisfactory explanation of what will be the future of the water industry, which is vitally affected by the Bill.
The hon. Member for the City of Chester made a pertinent point when he said that the whole matter depends on what are called the minimum acceptable flows being determined. I was under the impression that it will take years before they are determined, not only for the main salmon rivers but the many tributaries.
The powers contained in the new Clause for fishing interests are great and they may be exercised not just within a year or two but many years hence if a minimum acceptable flow has not been determined. I do not think that that will be disputed. The water industry, particularly the British Waterworks Association, believes that a threat to statutory water undertakings may be contained within the new Clause. The new Clause has been tabled late in the day and, while we do not complain about that, we have not been given much time in which to consider its many complexities. I am not referring to a threat that anyone is likely to use. However, the threat exists and should it be used it could have serious repercussions on water consumers, local authorities and so on. It might be used, for example, many years 773 hence when we have a new Minister and a new Government.
The Minister can, on an application, either revoke a licence or, if he decides that the application is invalid, rule that it should not be revoked. The right hon. Gentleman told us all about the question of compensation which arises directly out of his proposals in the new Clause. Many people think that without the new Clause the powers are adequate for the purposes the Minister has in mind. We take exception to the possibility that the licence right of a statutory water undertaking may be affected. On the advice I have been able to obtain in the short time since the new Clause was introduced I have gained the impression that, at some future date, should a fishing interest exert its rights under the new Clause, a statutory water undertaking could conceivably find itself in a difficult position. It may not be only a question of paying compensation but of losing its licence.
§ Sir K. Joseph
I agree that the new Clause has been introduced rather late, but the hon. Member may have overlooked the provision in subsection (1) of it, which shows that it does not apply to licences of right.
§ Mr. Howell
But does it not apply to future licences that are granted to statutory water undertakings? It is for this reason that I have referred to the threat to statutory water undertakings. I am not saying that it will happen, just that such undertakings could find themselves in a difficult position. We must remember that they undertake not merely the provision of water for domestic consumers but also the supply of water for industrial needs, which are increasing constantly. Thus, if a statutory water undertaking had a right which was threatened as a result of a fishing interest using its rights under the Clause, that could be a serious matter for the undertaking and just as serious for the water consumers in the area.
One would have thought that for the purposes of the Bill it would have been satisfactory to have had merely a provision relating to compensation so that any fishing interests finding themselves injured could be properly compensated. This way the threat of the removal of licences would have bean removed. The Clause confers a privilege on fishing 774 interests which is not conferred on any other interested body. It gives fishing interests considerable advantages.
I regard the Amendment to the new Clause standing in the name of the hon. Member for the City of Chester, to which the Minister referred, as being even more dangerous than the new Clause. I appreciate that hon. Members opposite like to do a spot of fishing. They are in need of recreation and leisure and I do not object to them getting it. However, as a consumer and not a fisherman I am saying that if one of the fishing interests in which the hon. Member for the City of Chester is interested invoked the new Clause and, in consequence, the licence of a statutory water undertaking was revoked, he would then be entitled, as a consumer, to demand to know what the Minister was doing, his water supplies and those of industry and others having been jeopardised purely as a result of the actions of fishing interests.
The Minister should comment on these important points before we agree to pass the new Clause. If we do not get adequate safeguards we would be justified to vote against it in view of the tremendous long-term threat which could face the water industry. In this connection, there are three points to which the Minister should address himself before asking the Committee to accept his new Clause.
First, is it a fact that the Minister will not revokes any licence issued to a statutory water undertaker on an application made by the owner of fishing rights?
Secondly, is it the case that the river authorities will not be saddled with the payment of compensation to owners of fishing rights where they have properly and carefully exercised their functions in respect of the issuing of licences? The hon. Member for the City of Chester told the Committee that certain legal authorities were concerned about the compensation that might have to be paid. When a river authority has given careful consideration to statutory water considerations on a subsequent date, it should not be placed in financial jeopardy.
Thirdly, in practice will a time limit be placed on the owners of fishing rights 775 in making application to the Minister in respect of their interests? I do not believe that any hon. Member, whatever interests he may have, will regard it as fair that this threat, which is inherent in the Clause, should be capable of being used in the dim and distant future. For this reason, a time limit should be written in to say when it can be invoked so that statutory water undertakings may know where they stand and when that limit expires. The industry needs to be assured on these points and I hope that the Minister will do just that before asking us to approve the new Clause.
§ Mr. Norman Cole (Bedfordshire, South)
I thank my right hon. Friend for wishing to include the new Clause in the Bill. Without going into the details of my right hon. Friend's proposal, and speaking on behalf of one fishing club which has written to me in another connection concerning the Bill—and to which I referred in correspondence with my right hon. Friend—I am able to say that this club, with 2,500 members, will be more than grateful to think that the Bill contains this protection, not only regarding the present position but in respect of compensation should that become necessary.
As for the complications about the existing common law rights, I always think that where it is possible—as, apparently, it is here—to codify them into a Statute may well save trouble in the future even if, possibly, giving less work to the courts. I do not regret that this is being laid down in black and white, and I again thank my right hon. Friend.
§ Mr. Cyril Bence (Dunbartonshire, East)
I support my hon. Friend the Member for Birmingham, Small Heath (Mr. Denis Howell). That is a very rare thing for me to do because, although I have worked for many years in Birmingham, I am a countryman and a keen angler. I see serious difficulties in this new Clause. My hon. Friend will remember that some 15 years ago the temperature of the water in a certain pool on the River Wye just below Hereford rose to 72 deg. and streams of motorists went to see the hundreds of dead salmon in it. There is in this new Clause the possibilities of conflict between those who want to abstract water from one water course to another, those who want 776 to abstract it for human and industrial consumption, and those anxious to preserve fishing interests. I want to preserve our fishing rivers. Angling is an excellent leisure-time pursuit. One does not interfere with anyone else. It is a solitary occupation, unlike football—
§ Mr. Bence
Yes, and I have seen one angler help another to catch the fish that won him the competition-Living in Scotland, I can indulge in this sport.
If this Clause is accepted, there is the possibility that in time of drought those having fishing rights to preserve will demand a flow of water while the statutory authority has to provide water for human and other consumption when the drought conditions themselves may lead to an extra demand on the supply. In such circumstances, someone has to be sacrificed, and if Birmingham had to be supplied in order to keep the factories going, and to enable the Birmingham people—who work very hard, produce much wealth for the country and get very dirty in the process—to wash both their clothes and themselves frequently, then, keen angler though I am, I would have to sacrifice the anglers' interests.
There is nothing worse than to see hundreds of dead salmon in a pool such as I have described, but if care of fishing interests means frustrating the country's economic functions and the activities of our factories, the sacrifice must be made. This new Clause contains the danger that, in such a situation, there might be serious litigation, and frustration not only of those who own the fishing rights but of the statutory authority whose job it is to abstract the water.
I hope that my interpretation of the new Clause is wrong, that the Minister will assure me that such a conflict would not be likely to arise, and that, even if it did, the Clause is so drawn as to be in favour of sacrificing fishing interests rather than the interests of industry and of those living in the conurbations.
§ Sir Lionel Heald (Chertsey)
On a point of order, Sir Robert. I should like your guidance. I have an Amendment 777 on the Notice Paper, and it has already been mentioned. I feel that it would be more appropriate for me to defer my remarks on it until I have spoken to the new Clause—if I have the honour to catch your eye—but perhaps it would not be appropriate for me to address the Committee twice.
§ The Deputy-Chairman
I understand that the arrangement was that the Amendment and the Clause should be discussed together.
§ Sir L. Heald
In that case, perhaps I might reserve my right to move the Amendment but to speak on the Clause as well—or what shall I do?
§ The Deputy-Chairman
I understand that the Amendment has not been selected, although it has been allowed for discussion.
§ Sir L. Heald
Then I am afraid that I was under a misapprehension, because from the list you kindly provided for us I thought the Amendment appeared as having been selected.
§ Dr. Barnett Stross (Stoke-on-Trent, Central)
I shall be most interested to hear what the Parliamentary Secretary has to say about this matter. I am sure that he is well apprised of it, and has made up his mind as to his answer. I see the conflict in this way. I recognise that the statutory water undertakers, of whom my hon. Friend the Member for Birmingham, Small Heath (Mr. Denis Howell) has spoken, have a case, but I do not think it is an absolutely cast iron one. They are expressing art anxiety with an "if". It is a conditional anxiety—
§ Dr. Stross
I should have thought it was conditional on the answer of the Parliamentary Secretary. If the hon. Gentleman says that there is no need for any one to fear, because the Minister will have this ultimately under his jurisdiction, as he would have under the Clause, the whole problem for the water undertakers is whether they think that the provision of water for domestic and industrial use will be important enough in the eyes of any future Minister to ensure that justice will be done.
778 We might get as Minister someone as passionately addicted to fishing as is the right hon. and learned Member for Chertsey (Sir L. Heald). He might be even more passionately addicted to it—have almost a monomania about fishing. I can then imagine such a conflict, such a tension in the Minister that the poor man would become schizophrenic and, of course, collapse, because he would not know which way to choose.
Subject to what the Parliamentary Secretary says, I am tempted to say that the millions of people who get very great pleasure and relaxation from fishing—whether their interest be in coarse fish, or trout, or salmon or salmon trout—must be taken into consideration, But there is more to it than that. If too much water is taken from a stream and the balance of life init is upset, we must not think only of fishing and pleasure but remember that the natural conditions of the country side could be seriously damaged.
That aspect affects me very much. I think that I would rather do without a bath or two than spoil the beauty and harmony of the countryside, and most hon. Members who fish will probably agree with me—
§ Mr. Howell
I think that it was Queen Victoria who said that the English had the habit of bathing far too often.
§ Dr. Stross
In those days, the English gentleman bathed once a year, and washed his hands and face once a day. My hon. Friend will remember that there were only two lavatories and two bathrooms in the whole Palace.
§ Dr. Stross
I am sure that we shall get an assurance from the Parliamentary Secretary but, if he does not reassure us, we shall have some very long speeches.
§ 6.0 p.m.
§ Sir L. Heald
I am most grateful to you, Sir Robert, for allowing me to intervene in this discussion, because it has 779 been very pleasing to find that at least one or two hon. Members opposite have supported the fishermen. The hon. Member for Birmingham, Small Heath (Mr. Denis Howell) may be more interested in other forms of amusement, such as watching people kicking a ball about, but I am glad that others appreciate the quiet method of spending one's time which has appealed to so many hon. Members for many years past.
This discussion is very important. It illustrates the very matter in which I am particularly interested. A number of us are most grateful to my right hon. Friend and my hon. Friend the Parliamentary Secretary for the great care and consideration with which they have attended to this difficult problem of common law rights. It should be appreciated that an unreasonable line has not been taken by the fishery interests. We are not apologetic for the deep interest we have in this subject. A number of organisations will be familiar to hon. Members who take a great part in the consideration of Bills and regulations on matters of this kind, such as the National Federation of Anglers, the Anglers' Co-operative Association, the Salmon and Trout Association and others. They have been very concerned about the abolition of common law rights before the minimum flow is established.
I have always taken the view that once the minimum flow is established it is much better to have the subject dealt with by a licensing system which establishes rights rather than leaving people to the uncertainty of common law actions which introduce complications, but there is no doubt that there was this gap and that in that gap serious damage might be done. As a result of discussions which took place—and I much regret that I was not present at the Committee—this new Clause was tabled. It may be summarised as giving the owner of fishing rights in exchange for common law rights and the right of injunction against an unlawful abstractor, the right to apply to the Minister to have the damaging licence revoked or varied and damages applied for if the applicant can be proved to have suffered.
The principle behind the Clause is that after one year's experience the owner of fishing rights, if he can prove that damage 780 has been caused by a licence other than a licence of right, may apply to the Minister to have the matter put right. When the Minister has heard the case, even if he decides that the fishery has been damaged, he has power under the Clause to decide that the licence shall not be revoked or varied but that instead compensation shall be paid.
The substance of this proposal was made known to those who were interested and they are most grateful for having had the opportunity of considering its broad terms. They were concerned that no reason was given for the Minister to act upon in deciding not to exercise this right of revocation or variation even in a case where it was shown that damage, and it might be disastrous damage, has been done. This, therefore, was discussed and the suggestion was made that it should be dealt with by saying in appropriate language that the Minister should refrain from exercising his right of variation or revocation only in view of "the importance of the abstraction" concerned.
Actually that expression has been used by more than one speaker in this debate. It was used by my right hon. Friend, but it does not occur in the Clause as tabled. The result is that, on the face of it, the Minister is entitled to refuse to vary or revoke the licence even in a case where immense damage has been done, and the Minister is in no way bound to consider the question whether it is an important or an unimportant matter. It may be said that, of course, he would always consider it, but here we have at least one suggestion from the hon. Member for Small Heath, who prefers football to other things by way of recreation. He suggests that it would be desirable that the Minister should never do anything except afford compensation, and under the Clause the right hon. Gentleman could do that. The hon. Member for Stoke-on-Trent, Central (Dr. Stross) suggested the possibility that the Ministerial office might be held by someone who was a passionate fisherman. It might also be held by someone who hated fishing. The position then would be the other way round.
I was immensely impressed by what the hon. Member for Dunbartonshire, East (Mr. Bence) said. I entirely agree with him. We must not think 781 only of ourselves in these matters because we happen to be keen fishermen. We may find ourselves in a tremendous conflict. I ask the hon. Member for Small Heath, to look at the matter, as I am trying to do, from an entirely impartial point of view. Let us suppose that we approach the matter on that basis and that the Minister would refuse to vary or revoke a licence only in a case where substantial damage is shown to be done and where the abstraction of water in pursuance of the licence in question was shown to be of great importance—I use a neutral term—from the national point of view and the needs of the person to whom the licence was granted could not be met by any other means.
In the case which the Hon. Member quoted, there would be no difficulty. The case would be met, but at the same time a safeguard would be provided against the kind of damage which the hon. Member for Dunbartonshire, East, and other hon. Members have in mind. This is why one felt that something should be put into the Clause to guide the Minister. We know that where legal matters are concerned it is no use relying on things which are said in this House. In fact, one is not allowed to refer to them in the courts. On the other hand, when it is a matter of Ministerial policy it is a different thing and it might well be that if a Minister made a statement in the House on how the policy would be intended to be applied that would be a considerable measure of safeguard. But in obedience to your Ruling, Sir Robert, I cannot say anything more about my Amendment—
§ The Deputy-Chairman
I hope that the right hon. and learned Gentleman has not misunderstood me. He can discuss his Amendment on the new Clause, but the Amendment has not been selected to be put to the Committee. Have I made that clear?
§ Sir L. Heald
I am very grateful to you, Sir Robert. In that case I will try to explain my point without going into the matter at any length. Perhaps I may be allowed to say that the words that I used just now are substantially the words of the Amendment and they were put in for the purpose of ensuring that the Minister would make it clear at least that he intended to act in that way.
782 Without putting words of that kind into the Bill, it may be that we could receive an assurance from the Minister. I think that all hon. Members, who would have conflicting views on this matter, would like an assurance as to how the Minister would regard his powers in this respect. I might show a fear that (he Minister would act in one way, and the hon. Member for Small Heath might be apprehensive that the Minister would act in another way. But there must be some decision made by the Minister when these difficult cases arise, and I should have thought that if one referred to the national interest it could not exclude any really deserving cases.
I think also it is very important to have in mind the second part of the wording to which I referred, that is to say, that the requirementscannot reasonably be met by other means…It is very easy to say, "Here is this very important matter of the water supply; it overrides everything else." We have heard in this debate some very good reasons why that would not be so, and if, in a proper case, the matter could be met by some kind of impounding works or similar precautions or arrangements, surely it is much better that that should be done than that a river should be ruined from the fishing point of view.
This is not a matter which is likely to happen frequently. It is, however, just the kind of case that might arise through some unfortunate mistake—perhaps no one's fault but through some unforeseen circumstances arising. Therefore, I hope that we may have from the Minister some clear statement on how he would intend to exercise his power. It is a very definite and wide power that is being given to override the rights of people who are perfectly entitled to insist upon them.
I must say that I was rather surprised when the hon. Member for Small Heath referred to the common law rights as a privilege. A common law right is more than a privilege; it is something of very great importance indeed. The fact that someone insists upon those rights being properly compensated for before he gives them up is not asking for a privilege. I hope that will be made quite clear.
§ 6.15 p.m.
§ Mr. Harold Davies (Leek)
The speech that we have just heard from the right hon. and learned Member for Chertsey (Sir L. Heald)—I do not mean this in a pompous way—should receive careful attention. I am not a lawyer, but I wish to look once more at the language and its meaning. Let us get the nub of the matter. The Minister has protected himself in subsection (4), which says:On an application under this section"—that is, an application for compensation—the Minister shall determine the grounds of the application, and he must also be satisfied that the damage is not due to anexceptional shortage of rain, or to an accident or other unforeseen act or event not caused by, and outside the control of, the river authority.The Minister has to protect himself. Coming to the proposed Amendment to this Clause, the words of which we are not allowed to discuss in full but which can be mentioned en passant, I take it that the phrase, "in the national interest" is an added protection in circumstances which it would be easy for any of us to imagine.
I listened with interest to the speech of my hon. Friend the Member for Dunbartonshire, East (Mr. Bence). Being interested in the rights of fishermen, I wish to thank the Minister far listening to the plea that was made on behalf of the numerous fishing interests in Britain. Most of the Bill is agreed, and I suppose we shall have to go along with the Bill, emperically and pragmatically improving it from time to time.
There is one point which requires an answer, and that is the question which was asked by the hon. Member for the City of Chester (Mr. Temple), whether this provision applies to net fishermen. Subsection (11) of this proposed Clause says:…'fishing rights', in relation to an inland water, means any right to fish in that water…I presume that the hon. Member for Leek has the right to fish in the water irrespective of whether he is a riparian owner or not. Could that hon. Member then apply for a certain amount of compensation? I should like this point cleared up.
I conclude by praising the Minister and expressing appreciation of the work that 784 has been done on both sides of the Committee on behalf of the fishery interests and the recognition of their rights. This is a marvellous sport which is so necessary in these days of noise.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I should like to begin by declaring an interest. I am the owner of fishery rights and that may, perhaps, qualify me to speak the better about this new Clause and the Amendment in the name of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and myself.
The hon. Member for Birmingham, Small Heath (Mr. Denis Howell) said that I and my fellows had been given a privilege, but I think that he will appreciate that, taking the Bill as a whole, although it is true that the Clause may give something to the owners of fisheries, the Bill takes away from them a very much larger right, namely, the right to sue at common law. Therefore, the net result is a diminution in the tights of the owners of fisheries. I am not complaining; I am merely pointing out that fact.
I should like to join in thanking the Government for putting down this Clause. I offer my thanks, not as an owner but as a fisherman and as one of the many thousands of people who enjoy fishing in our streams. Without this Clause there is a real danger that the removal of common law rights before the machinery of the Bill as a whole is working properly could lead to excessive abstraction of water and serious permanent damage to some of our fisheries. I do not say that that would happen in every case; it would not, but it could happen in certain cases and I think that everybody will agree that that would be wrong and ought to be prevented if possible.
The trouble is that, in cases where a licence is given, if there is no kind of sanction remaining with the owner of fisheries, large capital expenditure can be incurred and it will be very difficult, if not impossible, then to put the matter right. It is important, therefore, to retain some sanction in the Bill to the general effect of the new Clause.
I say at once that I do not regard the machinery of the common law as perfect. Far from it. It is extremely cumbrous and, as one who has occasionally had to look at it with a view to using it, I confess that it is not what I should devise 785 if I were starting to write a Bill with a clean slate. But the point about common law rights is that they have been a deterrent against those who might abuse a river, if that is an expression which can be readily understood. They have been a real deterrent, and, to that extent, they have preserved amenities which we want to preserve.
The Clause provides an alternative deterrent. For this reason, I welcome it. I go so far as to say that I am not altogether unhappy even if the Clause is a little clumsy and vague because, for the general purpose I have in mind, it may be a little more effective than if it were too precise.
§ Mr. Harold Davies
May I draw on the hon. Gentleman's expert knowledge? Am I right in assuming that, if there is vagueness and if one were dissatisfied, it is provided that an appeal can be made to the Lands Tribunal?
§ Sir H. Lucas-Tooth
No. I think that the Lands Tribunal comes in only on the question of valuation. I am merely saying that a certain amount of vagueness in this connection is not altogether a bad thing. On the other hand, I am not altogether satisfied about the drafting of subsection (8), and it is to this that my right hon. and learned Friend and I have directed our Amendment.
The essential words of the subsection are:Where…the Minister determines that the grounds of the application…have been established…but that the licence shall not be revoked or varied…the owner of the fishing rights shall be entitled to compensation from the river authority"—unless—this is the point of the intervening words—the river authority is prepared to purchase the rights.
Those are rather unusual words, because they do not oblige the Minister to use any discretion at all. I do not remember ever seeing in a Statute a simple and flat arbitrary power in a case of this kind. I quite appreciate that, if one did put in other words, they would not have a very great legal effect because, if the Minister says that he has used his discretion, no court will in the ordinary way say that he has not done so. Therefore, the person affected would be in no position of much greater advantage. Nevertheless, the words are extraordinarily arbitrary.
786 Apart altogether from this, there is no indication at all about the considerations which the Minister should have in mind. I have already explained that I do not much mind this and that I do not think that, even if one did put them in, they would give anyone very much greater legal rights. None the less, I should very much like to know what my right hon. Friend has in mind, because we are here in the field of administration, not litigation, and it is, therefore, of the utmost importance, when passing words of this kind, to know what policy the Government intend to pursue.
I hope that my hon. Friend the Parliamentary Secretary will give a clear indication of the Government's intention. I take it that they do not intend to leave this completely at large but that some principles will be adopted for deciding as between the two sets of interests concerned. I am quite willing to leave it in his hands, but only after an indication has been given that there will be principles applied and that those principles will be broadly acceptable to those who are interested in fishing and the other amenities.
§ Mr. Denis Howell
I intervene for only a few moments because I feel that I have been grossly misrepresented. There was no reason whatever why the right hon. and learned Member for Chertsey (Sir L. Heald) should have stayed awake during my speech, but I can only conclude from what he said that he did, in fact, go to sleep. It is quite wrong to assume that there is a great conflict between fishermen and those who support football, or that there is a great conflict between the water industry, on behalf of which I have attempted to speak, and fishermen. I should like to put the matter right.
The water industry has tremendous obligations to everyone. We are all consumers of water. As my hon. Friend the Member for Dunbartonshire, East (Mr. Bence) said, this obligation must always be paramount. We hope that, as a result of the reorganisation of the industry which we now have in hand, there will be no conflict in the future, but, if there were ever a conflict, all people of responsible judgment—I include the right hon. and learned Gentleman and myself—would say that the water industry and the interests of the consumer must have prior consideration.
787 I am happy to say that I do a little fishing from time to time and that I can be counted among the happy band. Since I came to the House of Commons, I have had little time for fishing, except in a political sense, but I—
§ Mr. Howell
From time to time, though, in my experience, my catches, both political and natural, are usually of such a size that they have to go back.
I should tell the fishing lobby here assembled that I am tempted to say something more on this subject. If we are ever to debate it, I should like to say something about the interests of fishermen who are prevented from fishing in so many stretches of our rivers by the vested interests ranged opposite. But this, perhaps, would be out of order, and it certainly would destroy the harmony which we all seek on the Bill. I shall resist the temptation. I hope that the Parliamentary Secretary will give us the guarantees I asked for on the three specific points I raised.
§ Mr. Marcus Kimball (Gainsborough)
I press my hon. Friend the Parliamentary Secretary to give us full guidance on the points raised by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) in regard to subsection (8), paragraphs (a) and (b), and the grounds on which the Minister will base his decision to let an abstraction go on even below the acceptable minimum flow. I want to know whether he will take into account the possibility that his decision may mean that the abstraction, if allowed to go on, will result in the complete loss of migratory fish in a river basin.
If we are to accept that the Minister will not take into account this loss in deciding whether to allow the abstraction to go on, will he be a little more explicit about compensation and how he proposes that it should be paid? Will compensation be on the basis of so much per million gallons extracted below the accepted minimum flow, or will it be so much on the capital value of the fish caught during the last five years? If there is not some such basis, people will not be able to assess what their right to compensation will be.
788 I do not wish to appear ungrateful. I know that the Anglers' Co-operative Association feels that this Clause is, perhaps, not good enough, but it is better than nothing. It is certainly most grateful to my right hon. Friend the Minister and to my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and all those who have done so much for fishing interests in the Bill. However, like most anglers, they have not landed quite as big a fish as they hoped they would.
§ 6.30 p.m.
§ Mr. C. Hughes
I am situated in midstream between the anglers and the footballers. We had a most detailed discussion on this matter in Committee and therefore I do not propose to rehearse the arguments which were there put forward. However, many of us had considerable doubts about the position of the owners of riparian rights. I was impressed by the argument which the right hon. and learned Member for Chertsey (Sir L. Heald) adduced during his speech on Second Reading. Having thought more about the matter and having gone into it in more detail, I felt it incumbent on me to probe it rather deeper in Committee. As a result of the right hon. and learned Member's speech on Second Reading and of our long debates in Committee, the Minister has brought forward this new Clause.
I did not hear the speech of my hon. Friend the Member for Birmingham, Small Heath (Mr. Denis Howell), but I have been told what he said. I think that he raised three important questions to which I hope the Parliamentary Secretary will give a very careful reply. On the whole, I welcome the new Clause because if the common law rights of riparian owners are being taken from them something must be given in return. A common law right protects all of us. It is quite proper that the Minister should have introduced these words.
The wording of subsection (8) is rather vague. However it may not be necessary to introduce further words in another place. If the Parliamentary Secretary can give us a full and clear explanation now, I should be satisfied with these words. If the Minister clarifies the position beyond doubt, I am prepared to support the new Clause.
§ Mr. Corfield
Perhaps I can take the Committee's mind back to the original concept of the Bill. On the one hand, it is an endeavour to produce a licensing system which creates, in effect, a guarantee about the supply of water and, on the other hand, running through the Bill has been the theme of trying to protect existing rights. The gap which my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) rightly pointed out on Second Reading has been the problem of the riparian fishing rights before the minimum acceptable flow is assessed or reached, which is, in a sense, a substitution for the common law rights, and one which my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) accepted in some way as perhaps even an improvement on the common law right.
One difficulty which arises, and which has arisen as we have gone into the matter further, is that the streams which are mostly used for abstraction and whose minimum acceptable flows will therefore be fixed as a matter of priority—and in a much shorter time than the hon. Member for Birmingham, Small Heath (Mr. Denis Howell) anticipates, probably four to five years—are not always the most important streams for fishermen. That underlines the necessity for the new Clause.
An appeal under the new Clause can arise only when something has gone wrong, because, even if a minimum acceptable flow has not been fixed for a stream, in granting a licence the river authority is bound to take into account the considerations which it has to take into account when considering the minimum acceptable flow. Therefore, if the use of the rights granted under a licence results in damage to the fishermen which we anticipate and are guarding against, it means, more or less automatically, that something has gone wrong in the licensing system. If that is the case, and, prima jade, it will be the case, it does not seem improper that the compensation should fall on the licensing authority—to wit, the river authority.
With regard to the conflict, if there should be a conflict between the licensee, whether a statutory undertaker or anybody else, and the fishing interests, as I have said, the thread running through the 790 Bill has been to protect the existing rights. These fishing rights are existing rights. In the mind of the Minister the onus will be on proving that the licensee is of sufficient importance that he should override the fishing rights and also that this is the only way in which that licensee can reasonably get the water.
I hope that that satisfies my right hon. and hon. Friends about the way in which we visualise these decisions being made. We regard them as something which will happen very rarely and only when something has gone wrong. That underlines that the onus is to show that the licensee or abstractor who causes damage to the fishing interests is of such importance that his interest must win and, in addition, that he has no reasonable alternative method of obtaining the water.
Clearly, in dealing with a public undertaking of this nature, there is a public interest and no one can say it is not an important interest; but it would be rash to say that in all cases a public water undertaking will be considered to have prior claim, because it must depend on whether there are alternative means to provide the water requirements of the reservoir or village in question. Statutory abstractions are not all of the size of that in Birmingham. There are minor ones which can be switched to a different stream.
We anticipate that the minimum acceptable flow will be fixed, at any rate in the larger rivers, within five or six years, and, we think, earlier. Looking to the long-term future, we are concerned under this Clause mainly with the smaller streams. I do not think it right that we should put a time limit on the operation of this Clause because its whole object is to operate until there is a substitute for the old common law rights, which will not happen until the minimum acceptable flow has been fixed.
My hon. Friend the Member for the City of Chester (Mr. Temple) asked what interests were involved. It is, I think, clear from subsection (11) that the nets-men—at any rate those with whom I am familiar in my constituency—would clearly come into this category. In some cases their rights go back 400, 500 or 600 years. There is no doubt that that is a legal right within the Clause. I do not know of any other types of netsmen who do not have a legal right of that sort, 791 but if there are any perhaps ray hon. Friend would let me know. As I read the Clause and understand the rights which accrue to fishing interests, I have no doubt that they are covered.
The horn. Member for Dunbartonshire, East (Mr. Bence) said that somebody must be sacrificed. This does not necessarily follow. The final decision may well be that the fishing rights are preserved with or without compensation, depending upon the extent to which they have been damaged up to that time, and that the licensee is told that he can have a licence for abstraction from another source, perhaps an underground source or another stream, which will not affect the river. It does not follow that there will always be such a rigid distinction that somebody is damaged.
I hope that the Committee will accept the Clause. It is intended as a long-stop for when a mistake has been made. In many of the important abstractions in cases of overriding national importance, it may be that the river authority will refuse a licence application in the first place and the matter will be decided by my right hon. Friend on appeal, probably with any damage to the fishing interests in mind at that stage. In that case, the onus is probably switched the other way and there would be an appeal under the Clause. Normally, I expect that it would be brought into use when a mistake had been made by the river authority.
In that event, it would depend upon those two factors when the decision has to be made, namely, the importance of the abstractor and whether there was a reasonable chance of his getting his water elsewhere.
§ Mr. C Hughes
The time limit factor greatly concerns my hon. Friend the Member for Birmingham, Small Heath (Mr. Denis Howell) and is a matter which I have had in mind for many weeks. There is no satisfactory definition. The Minister and the Joint Parliamentary Secretary have said throughout these discussions that the minimum acceptable flow in relation to main rivers will be decided in four, five or six years' time. There will then be the protection of the minimum acceptable flow and the Clause will cease to operate concerning those rivers. The Joint Parliamentary 792 Secretary has now made the point that in the case of smaller rivers, it may take many years to determine the minimum acceptable flow and in some cases, we have been told, it may never be decided.
I wonder whether the Joint Parliamentary Secretary can help the Committee. It is incumbent upon the Government to give us rather more precise information. I accept all the arguments about common law rights, but we also have a duty to the statutory undertakers. I understood the Joint Parliamentary Secretary to say that not all water undertakings were as large as Birmingham. I understand that for many small villages the reservoirs are drawn from smaller rivers.
I should like to know from the hon. Gentleman whether the Government have considered a more precise definition of the size of river in relation to which he expects that minimum acceptable flow will have been decided in four or five years' time. Would they be the rivers, for example, which are included in the present schedule of the river boards? Those boards are responsible for precisely denned stretches of water, outside which they are not responsible. Are those the rivers, or is there another definition?
Before the Committee leaves the Clause, I should be glad to have from the Joint Parliamentary Secretary a rather more satisfactory definition of what he means by the larger rivers which will have been dealt with in four or five years' time and the smaller rivers which will not be dealt with for many years or may not be dealt with even at all.
§ 6.45 p.m.
§ Mr. Corfield
I hope that I can help the hon. Member. Perhaps we have been using language badly in talking about large and small rivers. The criterion will be the demand on the river in relation to the supply. In the case of a relatively small river which has a growing demand on it, it will become increasingly important to move to the minimum acceptable flow procedure, because by definition there will be a number of applications for licences and unless a minimum acceptable flow is prescribed, the river authority when dealing with a large number of licences will have no measuring stick by which 793 to decide whether they should be granted.
The rivers for which we expect minimum acceptable flows to be determined in the reasonably near future are the main rivers under existing river board legislation. Beyond that, I cannot go further than say that it will be the rivers on which there is a substantial demand that the river authorities will select to bring forward in their programme for the fixing of minimum acceptable flow.
No doubt, there are many rivers for which one cannot foresee a time when it will be necessary to have a minimum acceptable flow, but as time goes on the conditions may alter, simply, perhaps, by people being forced to use more expensive supplies of water or by a change in the location of industry or the type of industry in an area. I cannot sensibly go further than that.
I am sure that the hon. Member and the Committee will appreciate that our concern is to set up river authorities to study the matter from their local knowledge which will be much more detailed than we can have and to make their programmes on the basis of that knowledge and of the hydrological surveys which they are impelled to undertake under the Bill and which are one of the main objects of the Bill.
§ Mr. Bence
When we began discussion of the Clause, I was not particularly dissatisfied with it, but after the Joint Parliamentary Secretary's explanation I am thoroughly dissatisfied with it because of the time factor. We are to have a minimum flow level for the major rivers and I presume that it will be a much longer period before a minimum flow is fixed for the smaller rivers.
When an extractor gets a licence to draw water from a main river and starts to do so, he may not reduce the flow of that river very much, but somewhere in the watershed or the adjoining river system he may create conditions in which another river course has no water in it. The flow might disappear because an extractor takes water from the main river. As no minimum flow is specified, I presume that the extractor would be liable to prosecution under common law, because his extraction will have created a dead river or a watercourse with only a trickle in it.
§ Mr. Corfield indicated dissent.
§ Mr. Bence
I may be wrong, but the explanation which I have heard thus far does not clear up the matter.
When a minimum flow is fixed for the River Wye, which I know well, or the Severn, I imagine that there would be a survey by the Water Resources Board of the whole river system flowing into the Severn or its tributaries, which include the Teme, which I know well, and many others. I should think that the water flow of these streams would be considered, because the extraction from the main river could destroy a tributary although not affect, say, the River Wharf, another tributary of the Severn, a sluggish stream with a gentle flow. The main river falls a good deal without affecting the Wharf, although a fall in the Severn would affect the Teme drastically. This is a watercourse which could be drained almost right out.
Any angler or countryman knows that one sight which is worse than a pit bing is a river bud which is almost dry. To me, a river is a beautiful phenomenon of nature and it is an awful sight to see a river bed of stones with only a little trickle of water in the centre. One can imagine all the life which has disappeared from such a watercourse.
To me, the Joint Parliamentary Secretary's explanation is unsatisfactory. The time factor for setting the minimum acceptable flow is quite unsatisfactory from the viewpoint of both the extractor, who has the licence to extract the water, and of the riparian owner, not necessarily on the main stream, but on the smaller streams, who seems to be receiving no consideration. I hope that my interpretation is wrong, because I am a supporter of the Bill, but I think it is the duty of the Committee to consider the best interests of those who partake in angling and of the consumers in our huge conurbations.
I was in a country where the rain falls for two months in a year, and yet that country is never short of water. Yet here, probably the wettest part of Europe, we have two weeks' sunshine and are always short of water; although we have a lot of rain we always seem in need of water conservation.
I think that the explanation the Joint Parliamentary Secretary has given us this 795 evening has confused the issue more and more and made it less acceptable, particularly because of the time factor, and I hope that we shall have a better explanation than this before we let the new Clause go.
§ Mr. Corfield
It makes it a little bit difficult if I have to take the hon. Member back to the discussions we had, much more appropriately, on Clause 19, which we discussed at great length in Standing Committee. With respect to the hon. Gentleman, what he has been saying about abstractions from those small streams has nothing, except very remotely, to do with this new Clause.
The whole basis of the problem which he referred to is that the abstractor, from whatever size of stream, will have to have a licence from the river authority; and the river authority, when considering an application for a licence, if a minimum acceptable flow has not been determined, will have to take into account the effect of abstraction on fishing interests and other matters listed in Clause 19, in relation to fixing the minimum acceptable flow. So the fisherman in the small river is protected by the licensing system, but because the licence gives to the abstractor the right to abstract free from action at common law we have introduced this new Clause to give the fisherman some right in lieu of those common law rights he has now lost.
The licensee is protected. We have introduced the new Clause to give the fisherman those rights if he is in fact damaged; but I would suggest that he is going to be much less likely to be damaged after the passing of the Bill than he was before because on the passing of the Bill, if somebody puts in an application and there is a reduction in the flow of the water, as the hon. Gentleman anticipates, there would perhaps be a common law right.
As my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) said, these applications would not always be a very precise instrument, but here an abstractor will have a right to apply for a licence to be protected and this Clause will protect fishing interests against any possible damage. The fisherman will have as a first defence the fact that the licensing authority, namely, the river authority, will have had to 796 consider the licence against the background of the likelihood of this happening, and issues under this Clause can arise only if, basically, the river authority made a mistake in giving the licence.
§ Mr. Denis Howell
Confusion is becoming worse confounded every moment. It is quite true, as the Joint Parliamentary Secretary said, that we had in Standing Committee a discussion on Clause 19, but it is also true that we did not then have in front of us this new Clause. This is a new situation. We should have had a lot more to say about Clause 19 at that time if we had had this new Clause as well. Therefore, I do not think the Joint Parliamentary Secretary should charge my hon. Friend the Member for Dunbartonshire, East (Mr. Bence) as he did.
The water industry was not very happy with the answer we had. As the Joint Parliamentary Secretary has very fairly said, fishing interests are being looked after—quite properly: nobody objects to that. Considerations affecting fishing will be in the minds of the river authorities when they decide whether or not to give one of these licences.
As from the moment the licence is granted this is a threat which is held over their heads, since we are proposing to put into the Bill, first, compensation, secondly, and/or licence revocation. Having considered all this, having granted the application, it is beyond my comprehension why the question of revocation should come about. I understand the question of compensation, and I would be the first to say that the fishing interests should be contemplated. I agree, too, that the question is unlikely to arise except very remotely. In view, however, of the caveats entered by the Joint Parliamentary Secretary about the matter, why on earth is it necessary to put into this new Clause this phrase about revocation and allow it to be implemented for a long period of time?
The Joint Parliamentary Secretary himself said, I remind him, a few weeks ago that the minimum acceptable flow of the main rivers of this country will be determined in five to six years. That carries the corollary that the minimum acceptable flow of the lesser rivers, the tributaries, will not be determined, will not start to be determined, for five or six years, till the question over the main 797 rivers has been got out of the way. That is how I see it, at least. Therefore the period between the granting of a licence and the determining of the minimum flow, in the smaller rivers particularly, is indefinite but certainly very long, and this is of concern to many undertakers.
I do not want to press the matter unduly for we want to make haste, but I would ask the Joint Parliamentary Secretary to think about this again. Why have this threat, this long-term threat, hanging over the water industry?
My final word to the hon. Gentleman is that while I shall let this matter drop now, dissatisfied as I am with his answer, I do so in the sure and certain knowledge, which he will doubtless appreciate, that hon. Members who are interested in the water industry, hon. Members now here and who will be here in the future, are very vigorous and vociferous people, and if these powers should be used in the way in which we apprehend they conceivably may be used Parliamentary opportunity will be found for a first-class row about it.
§ Amendment agreed to.
§ Clause, as amended, ordered to stand part of the Bill.