Clause 6.—(REVOCATION AND VARIATION OF LICENCES.) (Hansard, 20 July 1964)

§ Mr. William Ross (Kilmarnock)
I beg to move, in page 5, line 24, at the end to insert After a second conviction, the licence shall be revoked". We return again to something we made rather a meal of on Friday. Subsection (1) says: A river purification board may revoke a licence granted by them under this Act if the holder is convicted of an offence under section 2 of this Act in connection with that licence. Our Amendment would stipulate that … the licence shall be revoked". Under the Clause, an offence of abstracting water outwith the conditions of a licence carries with it a penalty on summary conviction of up to £50. This is relatively serious, and while it may be right to give discretionary power to the board in these circumstances to revoke the licence of a first offender, it would be reasonable to suggest that, for a second conviction, the licence must be revoked. That is why we would change the emphasis from the word "may" to the word "shall" in relation to a second conviction.

§ The Under-Secretary of State for Scotland (Mr. Gordon Campbell)
I understand the purpose of the Amendment, but I would point out to the hon. Member for Kilmarnock (Mr. Ross) the circumstances that might arise. It is possible that two offences might occur quite unintentionally—for instance, through failure to turn off a pump for some reason, such as illness, or through an unintentional error by an employee of the farmer. We think, therefore, that, since there might be circumstances where technically there were two convictions, but where there was really no intent to defraud, we should allow the board discretion. I suggest that the Amendment be not pressed.

§ Mr. Ross
That reply is unconvincing. All that the hon. Gentleman suggests is that there may be convictions based on what were really not offences. But, as he knows, all prosecutions in cases like this will be mounted by the Procurator Fiscal. Is the hon. Gentleman suggesting that the Crown Office would permit the matter to come to trial in such circumstances as he mentions? I am sure that it would not. I hope that the hon. Gentleman has a far better reason than this for arguing that discretion should be maintained for the board when someone has really committed a second offence. I do not think that there will be convictions or even charges in the sort of case which the hon. Gentleman has mentioned for what, after all, will be technical offences. Bearing in mind how justice is administered in Scotland, this is most unlikely. I hope that the hon. Gentleman can do better than that.

§ Mr. G. Campbell
I was giving examples to show what could happen. The river purification board would be able to take into account the character of the offence of which the court had convicted someone, and we feel that it is better to leave it with the discretion to decide in what circumstances revocation should take place.

§ Mr. Ross
I beg to move, in page 5, line 25, to leave out subsection (2).
The subsection gives another discretionary power to the board when the holder of a licence applies for a variation in the amount of water which may be abstracted. What troubles me is the possibility of a variation for an increase in the amount of water. Remembering that this is an annual licence and that the application may follow after a decision which had gone all through the appeal stages right to the Secretary of State, and remembering the amount of time provided by Clause 4(2), this will not be a quick procedure. In fact, it will be clumsy. Clause 4(2) provides for time for objections, which may be a month, and then there is the possibility of an appeal to the Secretary of State, which may take another month. Considering what is involved, it seems silly to have this provision in the Bill at all.
181 Certainly, there should be power to vary, although I cannot see anyone applying for a decrease—no one would want to prevent a farmer from taking less water. This is a rather half-baked provision and it is a pity that we do not have more time between now and Report to consider why the subsection is here at all. My reading of it may be wrong, but I shall be happy to have my ignorance dispelled by the hon. Gentleman.

§ Mr. G. Campbell
The kind of case which we have particularly in mind is where a farm changes hands during the calendar year. The previous farmer may not have gone in for spray irrigation on a large scale and may have applied for a fairly small amount of water. The river in question may have plenty of water and that farmer might have had his application granted in full. The new farmer may wish to irrigate on a larger scale and there might be no difficulty about granting his application for a larger amount.
In a change of tenure of that kind there should be some procedure to allow the incoming farmer, within the calendar year, if he wishes to do more spray irrigation than his predecessor to be able to apply if the situation seems to be such that there is no objection to his having extra water.
The procedure under Clause 4(2) is foreshortened compared with that under Clause 3. For example, the time is 14 rather than 28 days and the applicant farmer has himself to take on the responsibility of publishing notices. To take on that responsibility and to put the procedure into action he would have to be someone who particularly wanted this extra water.
I hope that by giving this example I shall have shown the hon. Gentleman the kind of situation which we have in mind.

§ Mr. Ross
The trouble with the hon. Gentleman is that he picks a situation and says, "Here is a river with plenty of water". In that case there would not be any licensing at all, because the whole basis of licensing is to safeguard the supplies of water. It is most likely in that type of case that it would not be in a control area. If there are 182 licences, they are based on the expectation of shortages and the possibility of wholesale abstraction leading to the worsening of the position with regard to pollution, fishing, and so on.
I suggest that the hon. Gentleman should think about this again. It will still not be an easy matter, because 14 days are to be allowed in the first instance, and then the board will have 28 days in which to come to its decision. In a case like that, will there still be an appeal to the Secretary of State? If so, there will be another considerable lapse of time before it takes effect.
When we bear in mind the fact that spray irrigation is used during a particular period of the year, I think we realise that the dangers and difficulties to which the hon. Gentleman referred will not create hardship. The person concerned will know what he is buying when he buys the farm. It is a pity that we have not had more time in which to discuss transfers, and so on. I do not think that this discretionary power is worth arguing about to that extent. We are going out of our way to make it easy for the river purification boards to make these variations—[Interruption.] I do not know whether this party meeting is finished. I shall gladly resume my seat if I am interrupting a meeting. Perhaps the Deputy Chief Whip would like us to clear out. I hope that our presence here is not embarrassing him. It is interesting to note that we have company tonight. Hon. Gentlemen opposite did not keep us company on Friday. If the hon. Lady wishes to make a speech, I shall be delighted to give way to her.
I do not think that we need to give this power. I think that there are more dangers in giving it than there are benefits in relation to the imagined situation which the hon. Gentleman has presented.

§ Mr. G. Campbell
Perhaps I might be able to make it a little clearer to the hon. Gentleman by saying that it is not a situation of complete abundance of water in the river. It is a situation where there is a river and where there are times when there is a shortage of water and a control order has been made. There may be a year in which there is quite a lot 183 of water in the river and there would be no objection to a larger amount being made available for the land in question.

§ Mr. Ross
Does not the hon. Gentleman realise that this is covered by another Clause which we shall discuss later? When there is an abundance of water, the board itself has power to vary the order without any application from anybody. I do not want to intrude on the discussions that we are to have later, but it is interesting to note that in that case everybody has to be dealt with in the same way.
This is a special variation for one particular person. I do not think that we should give this special power to vary upwards in relation to one particular person. The hon. Gentleman says that this power will apply only in particular cases, but it does not say that in the Bill, and it is on the provisions of the Bill that the boards will be able to exercise their powers.

§ Mr. G. Campbell
The hon. Gentleman has rightly drawn attention to a later Clause which allows for suspension or allotment of larger amounts right across the board to all those who have licences in situations of abundance.
I was trying to explain that this was a situation where, as the hon. Member said, an individual is concerned, and where there may not be conditions of great abundance of water but none the less quite enough water for the applicant to be granted an upward variation without any damage to other interests. This is part of the flexibility which we want to have in the Bill, not only to deal with the situation in a later Clause, but to deal with the situation of an individual applicant who, in the situation I gave as an example, might be someone who had come into a farm during the course of a calendar year.
The hon. Gentleman rightly said that the procedure, although specially foreshortened in these circumstances, contains provision for an appeal to the Secretary of State, so that there is a lot of procedure for the applicant to go through. Therefore, he will not lightly apply. He has to take responsibility for publishing notices, and he must go through this procedure. That will surely ensure that frivolous applications will not come forward. They 184 will all be serious ones, and it will be up to the board to decide whether or not to grant them.
We feel that this is an important element in the Bill, which provides greater flexibility, and I hope that in the circumstances the hon. Member will not press the Amendment.

§ Mr. Archie Manuel (Central Ayrshire)
I have one or two questions. We are concerned about subsection (2) because we recognise that it deals with the case of varying a licence in respect of a farmer taking over from an original applicant. But the subsection goes rather further than that. The abstraction can be increased. In some cases the abstraction will be gravitation and in others by pumping, but what we are not happy about is the fact that it appears, from what knowledge we can obtain about spray irrigation, that there is a distinct possibility that this will be used more and more widely. The application of science to agriculture and horticulture has clearly demonstrated that spray irrigation will develop, and it may happen that a greater abstraction may be permitted under the variation of a licence.
I take it that the amounts to be abstracted will be geared to drought conditions, although I recognise that in time of drought other action can be taken. But it must be borne in mind that in some cases we shall be concerned with merely a stream, which may have a fair amount of water in it at some periods and not much at others. In years to come other people may have a need for water, for agriculture or other farming purposes.
We must be careful not to land ourselves in the position of creating a situation in which a few farmers will be placed in a very favourable position to produce crops at the right time and at a high price, while others will not be able to do so because they will not have an opportunity to abstract water, because the limit has already been abstracted. Should we not consider this matter further to ensure that a board will satisfy itself that other developments will be possible further down the stream; in other words, to ensure that farmers are treated fairly and that the plums are not all given to farmers up stream and none to those down stream?

§ Mr. G. Campbell
That point is covered by the fact that licences last for only one calendar year. At the beginning of each year the whole position is reconsidered. We discussed this issue on Friday, when an Opposition Amendment was moved to extend that period to three years. We agreed, in the event, to keep it at one year.
We recognise that this new technique of spray irrigation may spread and we have no intention that a few farmers should get in at the beginning and that the water should then be limited for their use. I urge the hon. Member to imagine a farmer, perhaps in his constituency, if there is a control area, and that farmer decides to go into a new farm. If he wants to set up a lot of spray irrigation equipment and finds that because this Amendment was accepted he could not do anything for another year, he would not be very pleased.
We would like to safeguard the position of that farmer, and that is why we hope the Amendment will not be pressed.

§ Mr. E. G. Willis (Edinburgh, East)
The subsection we are discussing seems to make nonsense of Clause 3 of the Bill, because it permits the procedures outlined in that Clause to be undertaken at any time of the year. I wonder why the Bill goes to the trouble, in Clause 3. of laying down specific dates and procedures for the granting of licences, for according to the subsection under discussion anyone may go through the same procedure at any time.

§ Mr. G. Campbell
I explained that this procedure is different because the applicant must take on the responsibility of publishing notices himself, apart from the difference in timing.

§ Mr. Willis
I do not see any difference in timing. The subsection merely states: A river purification board may on the application of the holder of a licence vary that licence; and, where the effect of the variation would be to increase the quantity of water authorised to be abstracted, the provisions of section 3 as read with section 4(2) of this Act shall apply with any necessary modifications to the application for variation and to the variation of the licence as they apply to applications for, and the grant of. licences under that section. I cannot see any difference there, unless a modification has been made; 186 and there is no reference to any modification. I still think that my interpretation is correct and that anyone can apply at any time to abstract additional quantities of water from a river or stream. Does that not make nonsense of Clause 3?
What are the variations? How is it proposed to vary Clause 3, or, for that matter, Clause 4(2)? If it is proposed to vary, why is it not in this Clause? What form are the variations to take? Are they to be put in a statutory regulation, or are they just to be left to the discretion of the Secretary of State or the river purification boards? Who makes the variations, what variations can they make, and to whom are they responsible in respect of those variations? All these seem to be very relevant questions, and should be answered.
My only comfort in relation to subsection (2) is that, because of the time factor, it is not likely to operate very often. We know the time of year when farms are sold and, knowing that, it seems to me that this Clause will not often operate. Nevertheless, these points should be clarified.

§ Mr. Manuel
Before the Under-Secretary replies, may I say that I was aware of the licence being in force for one year, but what I asked was that where licences were granted and abstraction was taking place—

§ Mr. Willis
On a point of order, Sir William. I wonder whether you would direct that the meeting of scrap metal dealers be held outside, or on the other side of the Bar of the House?

Hon. Members
Nonsense.

§ Sir Donald Kaberry (Leeds, North-West)
No class distinction.

§ Mr. Manuel
I think that we would have proceeded much better if a Committee Room had been picked for this whips' meeting, or whatever it is, and so allowed us to get on with this Scottish business, which is not unimportant.
Admitting that the licences are for one year only, if, in subsequent years, licences are asked for, would it not be very difficult if the previous licences had to be revoked in order to give those subsequent applicants a share of the water 187 available from that stream? Did the Under-Secretary mean that if we were taking water up to a maximum from a particular stream, with upward variations of abstraction, to allow other and subsequent abstracters to get a licence to compete on equal terms with other producers, the original amount of abstraction permitted by the licence would be reduced?

§ Mr. G. Campbell
The hon. Member for Edinburgh, East (Mr. Willis) asked what variations were visualised. Although the variations may be upwards or downwards, one would imagine that the main type of variation would be for more water to be abstracted. As the hon. Gentleman himself said, there is quite a procedure to be observed, and I have explained the differences between that procedure and that under Clause 3; that is to say, the modifications as read with Clause 4 (2).
The period is shorter and the applicant himself has to publish the notice rather than the purification board. The operative word is "may". The board, on the application of the holder of the licence, may vary that licence. The board does not need to accept the application. If somebody applies for more water there is no need for the board to allow a variation.
As for the question asked by the hon. Member for Central Ayrshire (Mr. Manuel), the position as we see it is that every year the board would consider all the applications that had come in without necessarily taking any notice of what had happened in the past. It would consider the application in the light of the probable amount of water available and all the other circumstances, including the need for conservation and purification. Therefore, it should not militate in any way against the interest of someone who had not started in spray irrigation that somebody else had started six months or a year before him. We see the board considering all the applications at the end of the one year for the next year simply on the circumstances obtaining at that time and in the light of the future. I think that that will reassure the hon. Member.

§ Mr. Ross
It certainly does not reassure me. It is a silly provision bearing in mind the time that it takes, the cumbrous procedure, and the fact that 188 this is only a yearly licence. The Under-Secretary brings to our mind the one safeguard "may". In other words, there is no obligation upon the board to grant a licence, but how will it be done? [Interruption.] I do not know how you can listen to me, Sir William, and hear, as I can, at least three conversations going on between Ministers and Whips, and unofficial whips and the rest.

§ The Chairman
I assure the hon. Gentleman that I hear him with pleasure, and distinctly.

§ Mr. Ross
I never doubted that you heard me with pleasure, Sir William, but I wondered whether or not my voice was reaching you in the confusion and babble of discussion going on near and far.
We are told that an application under subsection (2) brings in Clause 3 as read with Clause 4(2). Although it is left to the discretion of the board, if a person makes an application, and he has no hope of having it favourably received, he has to advertise in at least one local paper and give all the information about what he wants and where and in what amount. He then has to wait 14 days. After that there can be objections and the board may listen to him and say "No" or it may say "Yes," in which case he aggrieves the objectors.
Then there are 28 days within which, if he does not get what he wants or if there are conditions attached which make him aggrieved, he can appeal to the Secretary of State. Likewise, if he is satisfied, the person aggrieved can appeal. It is not the original applicant who has to spend money then in informing everyone concerned. It is the river purification board. If one counts the original application, the 14 days and the 28 days, the time taken to decide and the time taken to appeal, the decision on appeal and the time taken to inform all concerned, it is all a piece of nonsense when one bears in mind that the licence has only a year to run. I hope the hon. Gentleman will think about it again.
11.0 p.m.
Inevitably, whatever a river purification board does by granting this variation upwards, although the hon. Gentleman says that he imagines it will apply 189 only in the case of somebody taking over a farm in respect of which there is a licence for a small amount of water and that person wants a larger amount, the Clause does not say that. It gives a clear right of discretion, in any circumstances, for the river purification board to consider an application for a variation of the licence. The whole procedure may have been followed, starting in October or November, followed eventually by the decision and an appeal to the Secretary of State, and then two months later it would be possible for the person who has been refused to start all over again. That is what the subsection provides.
The exercise of this power may get river purification boards into a lot of trouble, and we should not put them into this position. I suggest that if a person already has a licence and has gone through the various procedures, he should wait until the new licence period. If he has just bought a farm and knew what he was buying, he should be prepared to wait for a few months for the new licence procedure to begin.
We should be very careful about the powers that we give to these boards. They are not democratically-elected bodies. They are not judicial bodies. But they are going to exercise a considerable amount of power in circumstances which may be unfavourable to their popularity in the various areas.

§ Mr. Ross
We have now decided that a river purification board has got power to revoke licences. We have seen under subsection (2) that the availability of water may be an attraction to someone who has hitherto had a small amount of water, or no water at all, and whose licence has been refused. We have taken great care to ensure that everyone concerned is aware of what is done in respect of licences. Would it not be fair to let everyone know what happens in relation to a licence that has been revoked?
If a licence is revoked, whether because of a conviction or for some other reason, it means that there is water available for someone else, but nobody else will know about it unless it be someone who is on the river purification board— 190 or unless the river purification board is under an obligation to publish a notice to that effect.
I should like to know whether any thought was given to what the river purification board does in the case of the revocation of a licence so that those who have been denied water are enabled to exercise their powers under Clause 4. The only person who will be able to make an application will be somebody who knows of the availability of the water. Who is to know?—the river purification board. Who is on the board? There are local interests represented.
The Under-Secretary told us on Second Reading, and the Minister of State in another place, to meet criticisms there, promised, that there would be additional people on the board to represent local agricultural interests. Is this knowledge, which will be of considerable local interest, of the possibility of picking up someone else's licence or of someone already with a licence getting a chance under subsection (2) to get an increase, to be made known? In the administration of the Clause, will there be a possibility of informing the public by notice that there is additional water available for abstraction.

§ Mr. Willis
By subsection (1) of the Clause, a person who is guilty of an offence under Clause 2 can have his licence revoked. Also, a person who is guilty of a contravention of the provisions of Clause 2(1) can be subject to a fine not exceeding £50. In other words, if he extracts water without bothering to get a licence, he can be fined up to £50, but if he has a licence and he extracts double the amount for which he is licensed, he only has his licence revoked. There is a discrimination there.
I take it that a licence holder who extracted more water than he should would probably do it during the months of June and July, the drier months.

§ Mr. Willis
I should have thought that that would be likely. The offence might not be discovered till the end of July. The matter would go to the river board and his licence might not be revoked until August. All these things take time. Then, having had his licence revoked 191 in August, he could apply for another one in September, according to Clause 3. It does not seem to be much of a penalty.
There seems to be a premium on getting a licence and being minded to take out as much water as one likes. A man who takes too much water is not likely to be found out, and, if he is, it will be quite late in the day and he can renew his licence in another month or so. I may be wrong, but that seems to be how it works. Is this anything of a penalty at all? It seems rather unfair.

§ Mr. G. Campbell
I can reply to that straight away, while it is fresh in hon. Members' minds. It is most unlikely that a river purification board would be prepared to grant another licence to someone whose licence had so recently been revoked. The fact that there is this arrangement for considering licences every year—which we all agreed just now was a good thing—should not in any way be contradictory to the revocation of licences because it is entirely at the discretion of the river purification boards whether they grant a licence at all.

§ Mr. Willis
This raises an interesting point. I now understand that a river purification board will make its decisions concerning licences, not upon the quantity of water which is likely to be available in the river or stream, but upon the character of the applicant for a licence. If a board is to use other standards than the quantity of water which is available, we should be told what they are.

§ Mr. G. Campbell
I should not say that the decision was necessarily based upon an applicant's character. If a person had contravened his licence as recently as the hon. Member has suggested, and the licence had been revoked, he might not think it worth even applying for the following year. If he did apply, there is no reason why the board should grant a licence.
Had the hon. Member been able to take part in our debate on Friday, he would have found that on this point there was general agreement on both sides of the Committee that the circumstances and the criteria upon which a board would decide should be drawn as widely as possible. It was not simply 192 a question of allotting the water automatically. It was agreed that all possible circumstances should be taken into account, and a recent revocation of licence would certainly be an important point.
The hon. Member for Kilmarnock (Mr. Ross) asked whether it had been considered whether a river purification board should publish information about revocation of a licence or otherwise make the fact public. This has been considered, but we feel that we have already placed upon the boards such a burden of communicating with persons and of publishing notices that this was a case which did not need that procedure and we need not ask the boards to do it.
The hon. Member has provided a good example which I might have used on the last Amendment. He instanced a case of revocation and suggested that somebody else might be able to get the water. Only if there was an arrangement for upward variation and other arrangements, such as might be made following a late application under Clause 4(2), might it be possible for that situation to be met during the year.
At the beginning of a year, the quantity of water which is likely to be available would be considered by a board and allotted as the board thought fit between the applicants. We did not feel that we should, in the Bill, place upon boards a duty to publish a notice about this. We do not consider this to be necessary or that damage would be caused to other interests. The important thing is that a river purification board will know that notionally extra water is available, and we propose to leave to the discretion of the board whether anything in the way of publishing should be done.

§ Mr. Ross
Equally, the Under-Secretary will remember that we have allowed the presence on a river purification board of people with personal and direct interest in the matter. That is one of the dangers that springs to mind. The hon. Gentleman has said that I have provided him with a perfect argument. I am doing that all the time, but I did it after we had made a decision on subsection (1). We had decided that it should remain in the Clause. Therefore 193 it was all the more important that the other Clauses should be related to what is in the Bill.
On Clause 4 (2), we did not disagree in relation to late applicants. From their viewpoint, for the benefit of people who had not applied but who could apply late, it would be worth while to publish as widely as possible the knowledge that further water was available for allotment.
I still think that the Under-Secretary is wrong about this. We know of all the duties which he has insisted upon placing upon the river purification boards. I wanted to take some of them out in subsection (2), because the boards still have considerable duties despite the fact that an applicant for a variation must publish in the Press. A considerable amount of administrative work still rests upon the boards. I do not think that this would kill them, but it would certainly be fairer than leaving it to the possibility of information leaking to a limited number of people who had access to information available to the board for it to take action, either in respect of a late application or for a variation.
11.15 p.m.
I have only one more question to ask on this subsection. Does the hon. Gentleman visualise any other circumstances in which a board can revoke a licence? Or is the power to revoke a licence limited entirely to this discretionary power where there has been an offence under Clause 2? The Bill has to be read with the Rivers (Prevention of Pollution) (Scotland) Act, 1951, and if the hon. Gentleman turns to that Act, Section 18 thereof, he will see that there are certain powers and duties given to the boards and one relates to getting information and requiring any person who in their opinion is abstracting water from any stream in the area … in quantities which are substantial in relation to the flow or volume of the stream … to give such information as to the abstraction or discharge … as may be specified … Any person who fails to comply with any directions given … within such time as may be specified … shall in respect of each such failure be liable on summary conviction to a fine not exceeding twenty pounds and to a further fine not exceeding five pounds for each day on which the failure continues after conviction therefor. 194 Here is another serious offence, and Clause 2(1) will equally apply, and they would apply where someone obstructs an officer of a board in the exercise of his duties. Why was it the board was limited to revocation only in respect of this one type of offence? Is it that this might be a technical offence, to quote the hon. Gentleman's own words? [Interruption.] The whole thing is sinister, I can tell hon. Members opposite, as they would have known had they been here on Friday, when the Under-Secretary was here by himself, and did not get out of the Chamber even for a cup of tea. Was it a matter of deliberate policy that the Government decided that the power to revoke a licence altogether should be limited? The main Act has to be read with the Bill. Did they think that it would bring into play revocation?

§ Mr. G. Campbell
I can confirm that there are no other circumstances in which a revocation is brought in. The hon. Gentleman has quite rightly said that the Bill, when it, as we hope it will be, is enacted, has to be read with the Act of 1951. Therefore, the parts of that Act which are brought in bring in the penalties where there are penalties, and it seemed to make sense to us that the revocation of a licence should be based upon contravention of the licence and that other matters should be dealt with by fines.
I omitted earlier to deal with the point raised by the hon. Member for Edinburgh, East (Mr. Willis). It concerned the case of someone who was abstracting water without a licence. We went into this earlier in Committee, and I pointed out to the hon. Member for Fife, West (Mr. W. Hamilton) that a person doing this would, in the first place, find it very difficult to do it without being discovered because of the equipment, which is very obvious and difficult to conceal, and very expensive, too, and that, secondly, he would open himself up to the penalty of imprisonment. I think that that deals with the situation of the person operating without a licence.