Schedule.—(PROVISIONS AS TO APPLICATIONS FOR, MAKING, COMING INTO OPERATION, AND VALIDITY OF, CONTROL ORDERS.) (Hansard, 20 July 1964)

§ Mr. Ross
I beg to move, in page 7, line 17, to leave out "in their area and".

§ Mr. G. Campbell
The Schedule follows the form of Schedule 2 of the Flood Prevention (Scotland) Act, 1961, in which there is similar procedure which has proved satisfactory in practice and which, incidentally, so commended itself 214 to the Scottish Standing Committee at the time that it was passed without criticism.
These words or their equivalent are included in Schedule 2 of the 1961 Act, the point being that it is not only the area of the local authority but also the area of the board and the control order that is involved. We consider that these two areas should both be in this Schedule.

§ Mr. Thomas Fraser (Hamilton)
Perhaps the Under-Secretary of State could tell me how this would operate in the area with which I am familiar. I have my home in my constituency, in the market gardening and fruit growing area of Clydeside. There is a board for the Clyde and its tributaries and the board's area extends from the Clyde Estuary-including Glasgow—through Lanarkshire and into counties on either side.
I am not aware of any local newspaper which circulates throughout the area covered by the board. I understand that it is very unlikely that a control order would relate to a particular part of the Clyde with its tributaries at that point, and I can well understand the selection of a local paper within the area. I cannot, however, visualise, there being a local paper circulating throughout the area including Glasgow, large parts of Lanarkshire and its burghs and stretching into adjoining counties.

§ Mr. G. Campbell
I should make it clear that these words mean the area of the board and the area of the control order. These are not newspapers circulating exactly in the area. If there is a newspaper which covers both, and in the case the hon. Gentleman mentioned he will probably find that one newspaper covers both—

§ Mr. Campbell
It sounded as though the hon. Gentleman was describing circumstances in which a local newspaper covered both areas. In most circumstances there will be two local newspapers, one covering one area and one the other. The intention is, and the hon. Gentleman will find similar wording in the Second Schedule to the Flood Prevention 215 (Scotland) Act, 1961, to make sure that this is published in a newspaper which would cover both the control order area and the area of the board.

§ Mr. T. Fraser
I am sorry that the hon. Gentleman has not understood me. I recognised that we were here referring to two local newspapers, one circulating within the area covered by the control order. If a control order is made for that part of the River Clyde likely to be covered by a control order, that part which is partly in my constituency, the fruit-growing, market-gardening part of Clydeside where spray irrigation is practised, the newspaper will be the Hamilton Advertiser. I did not want to set out to advertise this local newspaper, which circulates in the area which would be covered by the control order.
The hon. Gentleman is defending the inclusion of the words which my hon. Friend seeks to delete. They say that the board must publish its intention in at least one local newspaper circulating in the area of the board. I am saying that that area in my example includes the City of Glasgow, the County of Renfrew, part of the County of Ayr, part of the County of Dumfries, the whole of Lanarkshire and the large burghs, and so on, in Lanarkshire. I am merely saying that there will not be a local newspaper covering the whole of the area of the board. I am asking whether we are not making a mistake, in the Bill of 1964 and not the Act of 1961, in making it mandatory on the board to do something which it is manifestly incapable of doing.

§ Mr. G. Campbell
I am sorry if I have been slow in understanding the hon. Gentleman. I think that I understand him perfectly now. The answer is that the local newspaper in the board's area does not have to cover the whole of the board's area. In a situation such as the hon. Gentleman has described, where the board's area would include an enormous city and a very large area, it would be difficult to find anything which could be described as a local newspaper covering the whole area. The position is that it does not need to cover the whole of the board's area. The object is that the newspaper should cover the area under consideration and that there should be another newspaper if 216 there is an area separate from the control order area.

§ Mr. Ross
If the hon. Gentleman had finished one sentence earlier, he would have been clear and lucid, and he would have been accepting my Amendment. The hon. Gentleman then added another sentence. I am sure that he did not know what it meant, because he seemed to draw a distinction between a board area and a control area. I assume that his intention was to make a momentous announcement in his last sentence, but the only result was confusion.
Will the hon. Gentleman forget that there is a Flood Prevention (Scotland) Act, 1961? Will he attend to this Bill and to this Schedule? Will he read the Amendment? If these words were left out, there would be no confusion. Paragraph 2 would read: On making an application for a control order the river purification board concerned shall in two successive weeks publish in at least one local newspaper circulating in the area to which the control order would relate … It is as simple as that. That is the area that we want to cover. That is the area in which we want to advise people. Why confuse the matter merely because a draftsman put in some words that are in the 1961 Act, which, in turn, were probably taken from the 1891 Act?
The 1961 Act was probably passed when my hon. Friend the Member for Hamilton (Mr. T. Fraser) had dashed out for what I would dignify by the term "lunch," but was, in fact, a hurried cup of tea, with the result that these words escaped our notice. There is no reason why we should defend them today. I assure the hon. Gentleman that the sun will still rise tomorrow if he accepts the Amendment. If he did that, the Statute would be clearer, and would not lead to the confusion that arose in the hon. Gentleman's mind during his speech.

§ Mr. G. Campbell
The answer is that the aim of this is to get the maximum publicity in the area affected. The hon. Gentleman has been much concerned about farming other interests concerned in this matter. This would make sure, so far as is possible, that persons affected further down the river had a chance of hearing about it. I know the special example of the Clyde, and I was trying to help the hon. Gentleman with that 217 example, but there are other cases, particularly those where spray irrigation and a shortage of water are most likely, such as on the East coast of Scotland, where similar circumstances do not arise.
We think that this gives wider publicity, and that it would ensure that other interests, which may be further down the river, and which may be concerned about the abstraction of water, had a chance of hearing about it. That is its purpose. There is nothing sinister about this. We think that it follows the good example of an earlier Scottish Act. We think that it aims for the maximum publicity. But cutting it down as the hon. Gentleman suggests, there is a possibility that some of the people affected and interested would have less chance of hearing about it.

§ Mr. Ross
I beg to move, in page 7, line 40, to leave out from the beginning to the end of line 2 on page 8.

§ Mr. Geoffrey Wilson (Truro)
Why is it impossible?

§ Mr. Ross
Why is it impossible? If the hon. Member has any knowledge of Scottish law he will know what is involved in the expression any interest in any land". It has a technical connotation. This is so bad that a let-out is immediately given in the proviso: Provided that where it appears to the Secretary of State, from representations made to him by the board, that compliance with head (d) of this sub-paragraph would be unduly onerous, it shall be sufficient compliance if the board, having submitted proposals in this 218 regard to the Secretary of State, take such steps as he may direct as respects service of the said copy documents …". This is nonsense. What happened was that in another place somebody accepted an impossible Amendment. Then this proviso had to be inserted so as to get out of the difficulty. I suggest that we wipe it out in this House and remove head (d).

§ Mr. G. Campbell
I am sorry that the hon. Member for Edinburgh, East (Mr. Willis) is not here, because he was particularly keen on this provision and during the Second Reading debate he specially asked me about it. I was able to tell him that head (d), plus this proviso, was in the Schedule. He was quite satisfied with that. I am sorry that I do not have him here to support me at the moment, but he indicated earlier his support for the wording. Head (d) is a safeguard to ensure that people who have a legitimate interest in what is being done are informed and that at the same time there is a reasonable proviso to meet the situation which the hon. Member visualises. That is to spare the purification board—if it entails a tremendous amount of work—from having to communicate with every interest.
The proviso enables this task to be scaled down to a reasonable operation. Despite what the hon. Member said, we feel that head (d) is an important one, and that with the proviso it enables a purification board which might in certain circumstances be faced with a herculean task to do something which is more reasonable in the circumstances.

§ Mr. T. Fraser
The Under-Secretary has met himself coming back. He will remember that my hon. Friend the Member for Edinburgh, East (Mr. Willis) gave him some support on an earlier Amendment this evening, in Clause 7. My hon. Friend the Member for Kilmarnock (Mr. Ross) moved an Amendment to say that the river purification board would have to make some easement of the licensing provisions because of an abundance of water, and that other bodies and authorities should be informed in equal manner as the Bill provides in the case of licence holders.
The Under-Secretary argued that it would be too heavy a burden to impose on a purification board, and he could 219 not even accept that part of the Amendment which made it mandatory on the board to advertise the relaxation of the provisions of the order in the local newspapers. He said that his right hon. Friend would merely advise the purification board so to behave when there was an abundance of water.
We have just had a discussion about the publication of the application in the local newspapers so that everybody would get to know. It is proper that the bodies set out under heads (a), (b) and (c) should have a direct communication from the purification board.
12.45 a.m.
When the board has published, in the two local papers to which the Under-Secretary referred earlier, the necessary details and has informed the local authorities and all statutory bodies, organisations and associations as mentioned in the Clause, why should the board have to inform itself of the identity of every person with an interest in the land? As the hon. Gentleman knows—as does anyone who has had anything to do with legislation concerning land in Scotland—nobody really knows to whom these communications should be sent. That is why this proviso must be included in the Clause.
Does the Under-Secretary consider that persons with an interest in the land will be unaware of what the board proposed to do, after it has advertised the details in the local newspapers? They will be fully aware of the proposals, as will everyone else in the area. For this reason we see no reason why this obligation should be placed on the board. Obviously, the board will apply to the Secretary of State for relief because it will be unable to properly discharge its obligation, the right hon. Gentleman will grant the relief and the board will have gone to a lot of expenditure, which will be met not merely by those with an interest in the land but by the ratepayers generally. Considering that the right hon. Gentleman told us that the expense might be about £1,000 in the case of each control area, why will he not accept my hon. Friend's proposal and get rid of this virtually impossible obligation placed on boards?

§ Mr. G. Campbell
I am glad to explain the difference between the discussion 220 we had earlier on an Amendment concerning advertising and this one. In the earlier case, we were discussing information about the revocation of a single licence in a control area. In this case, we are discussing the question of whether a control area should be set up at all. This is, therefore, a far more important matter and concerns a control order area once a licensing system has been set up.

§ Mr. T. Fraser
If the hon. Gentleman looks at Clause 7(2) he will realise that our Amendment did not deal with the revocation of a single licence at all, but with the situation in which the whole licensing procedure was being set aside.

§ Mr. Campbell
I thought that the hon. Gentleman was referring to an earlier debate on a similar question, but it still does not alter my argument. Earlier, we were considering the question of informing persons concerned about a single revocation; later, we referred to advertising concerning licences in a control area, but the point remains that in the Schedule we are considering a procedure for setting up a control area in a purification board's area.
If the hon. Gentleman had been here on Friday he would have heard his hon. Friend the Member for Fife, West (Mr. W. Hamilton) criticising the fact that the word "control" was used at all, and seeking to substitute the word "supervision." He criticised ideologically the party on this side for, as he said, imposing controls—he even called them "central" controls. In answer, I explained that this was setting up controls under a certain procedure under this Schedule for informing the persons concerned.
So that very criticism which the hon. Member for Fife, West made in our discussion now rebounds, because here is the answer that I gave him then, which is that we are making quite certain that, as far as possible, all interests that will be concerned with the initial establishment of the control order area will have the opportunity to know that the application has been made, and then taking what action they feel they should to safeguard their interests.
That, I think, is the complete answer to what the hon. Gentleman says.

§ Mr. Ross
If the Under-Secretary thinks that, he is easily satisfied. Is it desirable that this should be done? We want everyone possible who is to be affected to know about it. That is why we decided to publish for two successive weeks in a local newspaper that covered the area. Judging by what we now have, that is to be done. Now the hon. Gentleman says that we must also have subsection (d). Was this in the Measure as originally drafted, or does it result from an Amendment in another place? If he does not read the proceedings there, I do.
Let us see what the subsection says. It states: every person known to the river purification board …". So the board does not need to know anybody, so if it does not want this subsection to mean anything it means nothing: to have any interest in any land … Where is the limitation of that? How is anyone to know the extent of this—the legal aspect of the interest in land? There are local authorities in Scotland that would like to trace people with a direct and personal interest in land to enable them to get rid of some properties that should have been pulled down a long time ago, but they do not know who owns them, and cannot find out. They have to try, and keep on trying. The hon. Gentleman says, "Oh, yes, it is all right—the proviso is there. We do not want to hang things up too long." Do we? He says that this is absolutely essential.
The Rivers (Prevention of Pollution) (Scotland) Act, with which this Bill is to be read, set up the river purification boards in the first place. In that case the responsibility for informing people fell not upon the river board which had no staff or offices, but upon the Secretary of State for Scotland, heaven help us. What obligation was laid upon him? Remembering that in future a river purification board will have as one of its functions the possibility of a control area, is not it right that we should examine what obligations were laid upon the Secretary of State for Scotland to inform the interests concerned?
The First Schedule of the 1951 Act says that 222 … the Secretary of State shall serve a copy of the said notice and of the draft order on any river purification board concerned and on the council of every county or large burgh whose district is comprised wholly or partly in the area affected by the order, on the fishery district board of every fishery district so comprised and on any navigation authority or harbour authority exercising functions in relation to any stream in that area. What about "all the persons known" to the board? Why were those words not put into that Act? It was simply because the thing was quite impossible. I suggest that we forget about this provision right away and that between now and the Report stage the Under-Secretary thinks of something much more sensible.
If this requirement was not necessary in respect of the establishment of river purification boards, and it is not desirable to lay it on the Secretary of State who is not without staff, why should we lay this onerous and indeed impossible duty now on river purification boards which are not over indulged with staff? If the hon. Gentleman likes to read what was said by certain noble Lords about offices and staff he will have an idea how silly this proposal is. It is impossible to imagine anyone having a comprehensive knowledge of occupiers, ownership, part ownership, land superiors and the rest. It might be an interest that derived from a loan, and there is no need to prove interest apart from idle curiosity. I have an interest in many pieces of land without having a legal interest. The phrase every person known to the purification board to have any interest in any land … is, legally, absolute nonsense.
If the hon. Gentleman does not accept the Amendment he should have a look at this matter between now and Report. I hope that he has not come here without power to accept Amendments. I know that he is a very junior Under-Secretary and the youngest of the lot, but we would take it as a slight on the House of Commons if he is here with the right to listen to the argument but without the right to diverge from the instructions of the Secretary of State—and there should be nothing to prevent the Secretary of State being here on the Committee stage of a Scottish Bill.

§ Mr. G. Campbell
In view of the fact that I have been able to consider and accept Amendments, I would have hoped 223 the hon. Gentleman would realise that, of course, I am in a position to accept Amendments. But, however persuasive the hon. Gentleman—and he is very persuasive; he argues his case very well—we regard sub-paragraph 3(d) as necessary with the proviso. That sub-paragraph was in the Bill originally; it is the proviso which was added in another place.
I would agree that without the proviso there would be the possibility of an onerous task being placed upon the river purification board, but we feel that with the proviso the points that the hon. Gentleman has raised can be met. This need not be an onerous task, but it is an important one.

§ Mr. Ross
I beg to move, in page 8, line 8, to leave out "in a prominent position".
I do not think that—does the hon. and gallant Member for Roxburgh, Selkirk and Peebles (Commander Donaldson) wish to move the Amendment?

§ Commander Donaldson
I have no desire to move the Amendment. [HON. MEMBERS: "Order."] If the hon. Member addresses me, surely I may reply.

§ Mr. Ross
All the hon. and gallant Gentleman has to do is to rise and make a speech. [HON. MEMBERS: "He did rise."] He was not called.
I do not think that the words which the Amendment seeks to omit add anything at all to the sense of paragraph 4, and I therefore suggest that they should be left out.

§ Mr. G. Campbell
I find the hon. Gentleman's remarks surprising, because these are simple and straightforward words. They are well tried and the meaning is clear. They are exactly the same as in the Schedule to the other Scottish Act which went through the Scottish Committee without any criticism. These words serve a useful purpose.

§ Mr. Ross
I beg to move, in page 8, line 44, to leave out "the river purification board" and to insert "he".
The effect of this Amendment would be to place the obligation to publish the information in the Schedule, not upon the river purification board but upon 224 the Secretary of State for Scotland. After all, it is the Secretary of State who makes the control order, and I suggest it would be right that he should do this administrative work rather than the river purification board.

§ Mr. G. Campbell
We feel that there is nothing unreasonable in the requirement in the Schedule. The board which has applied for the control order should be responsible for publishing the fact when the order is made. This seems to be perfectly reasonable.

§ Mr. Ross
I beg to move, in page 9, line 1, to leave out paragraph 10.

§ The Deputy-Chairman
I think that it will be convenient to take the next Amendment with this Amendment.

§ Mr. Ross
I should like the Under-Secretary to justify this paragraph. I should have thought that the next Amendment was entirely different, Sir Robert, and not related to this one.

§ The Deputy-Chairman
If it is not desired to take these two Amendments together, the next Amendment can be taken separately.

§ Mr. G. Campbell
This Amendment—which can be discussed separately from the next one, if the hon. Gentleman wishes—would remove the limitation of six weeks. This is a common provision in other legislation. Examples are the Acquisition of Land (Authorisation Procedure) (Scotland) Act, 1947, the Second Schedule to the Flood Prevention (Scotland) Act, 1961, and the Water (Scotland) Act, 1946. If no such limit is imposed, then a control order, on which the whole licensing system depends, could be open to attack in the Court of Session for an indefinite period, and by that time the whole system might be in full swing. It seems sensible, therefore, that there should be this period in which it is open to bring an action, but, after that, not.

§ Mr. Ross
I know that it is common form and I have seen it in other statutes. But what really concerned me was the fact that we give 28 days for people to make a local objection, quite apart from a legal objection. Why should we, in relation to something which is very much more serious and which means raising an action in court, 225 limit the time to only six weeks? After six weeks, any action would be time-barred. Have the Government thought of extending this period, having regard to the period given in the other procedures'' Any action of this kind would raise very complicated legal questions.

§ Mr. G. Campbell
It is a period recognised and used in similar circumstances in other Acts. Of course, when notice of a control order is given, there will already have been the procedure for consideration of whether the order should be made or not, so that this is adding to the warning which any persons considering taking this action would have. In the circumstances, six weeks does not seem to be too short a time.

§ Mr. Ross
Objection to a control order is a purely local procedure. Someone far away from the actual area concerned might wish to question the validity of the whole matter, and, from that point of view, I think that there is a case for an extension of the time. I suspect that what happened is that the draftsman merely copied this from other statutes, without relating it to the particular problems arising here. I am not convinced by what the hon. Gentleman has said, bearing in mind the time which is given to the other people concerned.

§ Mr. Deputy-Speaker (Sir Robert Grimston)
Consideration what day?

§ Mr. Michael Hamilton (Lord Commissioner of the Treasury)
Now, Mr. Deputy-Speaker.

§ Mr. Deputy-Speaker
Third Reading?

§ Mr. Ross
On a point of order, Mr. Deputy-Speaker. I believe that I can claim that the Question, "That the Bill as amended, be now considered", be put to the House.

§ Mr. Deputy-Speaker
The Question is, That the Bill, as amended, be now considered.

§ Mr. Ross
It is now ten minutes past one. This is a relatively important and complicated Bill. We have spent a considerable time—

§ Mr. G. Wilson
The verbosity of the Scots.

§ Mr. Ross
—on the Bill on Friday and again tonight.

§ Mr. T. Fraser
There has been no filibustering.

§ Mr. Ross
There has not been any waste of time.
We now proceed straight to the Report stage, with no possibility of considering this discussion or of putting down Amendments. I understand the Under-Secretary to say on Friday that he might well consider accepting one or two Amendments which, for the sake of speed, I did not move. In that case, he might have thought of putting them down on Report. Often, for reasons of speed, Amendments are withdrawn in Committee and are put down again on Report. Now, however, we do not have the opportunity of putting down Amendments. We have no opportunity of seeing Amendments that anyone else has put down. This is a most unfair way of dealing with legislation.
I know that certain hon. Members regard this as a bit of a nuisance and consider it to be rather unimportant, but from a parliamentary point of view it is extremely important. This is not how we should conduct our business. It was for that reason that I claimed the right to be able to say these few words, in order, by asking Mr. Deputy-Speaker to put the Question from the Chair.
I do not expect any reply from the Government—I do not want any reply from them—but the country should know how the Government are prepared to treat Scottish legislation. This is not the first time, but it is the first time that we have been able to voice our protest. The responsibility is not that of the Chair, but of the Government; the Chair quite fairly put the Question. I hope that the Government appreciate that they are not doing justice to the House of Commons.
There was a considerable time between Committee and Report in another place. During that time, Amendments were put down which we thought about and were accepted. We, however, have not been given our proper opportunity, unless it is by manuscript Amendments. I am not prepared to sit down and write manuscript Amendments from Clause 1 to 227 Clause 9. There is not much likelihood of the Government repeating their performance, because we are in the last 10 days of this Parliament, but the way in which the Bill has been dealt with by the Government is shocking.

§ Mr. A. Lewis
Surely this is a matter which involves the Chair. While I appreciate, Mr. Deputy-Speaker, that you cannot be held responsible for what the Government have done, you have, do you not, a responsibility, which you always faithfully carry out, to hon. Members, and particularly to back benchers, provided they are in order, to permit them to put down Amendments on Report, which you then call them to move?
My hon. Friend the Member for Kilmarnock (Mr. Ross) has rightly pointed out that neither he nor any other hon. Member could on this occasion have an opportunity of putting down Amendments for you, Mr. Deputy-Speaker, to study to see whether they are in order to be called. To that extent that must surely deprive you of your rights of deciding whether an Amendment is in order—when we have no opportunity of putting such Amendments. Surely this is a matter you yourself ought to consider, if not on this occasion, for a future occasion.

§ Mr. Deputy-Speaker
It is a matter for the House to decide.