HC Deb 25 April 1967 vol 745 cc1347-67

As from the second appointed day, no building shall be erected over any water main belonging to a water development board or a regional water board, and no cellar, or subway, or any other structure shall be made so as to interfere with any such water main, unless with the consent of that board.—[Mr. MacArthur.]

Brought up, and read the First time.

Mr. MacArthur

I beg to move, That the Clause be read a Second time.

On this new Clause I have no doubt at all. It is desirable that a Clause in these terms should be added to the Bill. We had some debate in Committee about a similar new Clause which I proposed. As the Minister will have observed, I have made certain changes since then, partly to make the Clause more accep- table to you, Mr. Speaker, and also to remove a doubt I had about the wording. I am not yet convinced that the wording which is before the House is entirely right. The principle, however, is quite clear. I know from what he said earlier that the Minister is aware of the principle we have in mind.

This matter raises a curious yet an important point. Local water authorities at present have power of access to and to maintain water mains in their possession. An authority does not have a clear statutory right, I stress the word "clear", to prevent the erection of any building above the water main in its possession, or to prevent the interference with the water main which works of other kinds might represent, subways, the laying of pipes and cables, and the like—all of which would clearly interfere with the safeguarding of the water main.

This point was very much in mind when the Public Health (Scotland) Act, 1897, was drafted. That Act lays down, in Section 114, the following provisions: Unless with consent of the local authority, no building shall be erected over any sewer belonging to the local authority, and no vault, arch, or cellar, or subway, or other structure shall be made, and no pipes of any kind shall be laid so as interfere with any such sewer. The reason for this Section was quite clear. The drafters wished to make it abundantly plain to any outside body that it must not interfere with sewers. I do not suggest for a moment that anyone would deliberately go out of his way to interfere with a sewer, but it is quite clear that during the course of building, or making a subway, or something of the kind, someone might, quite inadvertently, interfere with the course of a sewer. It is quite possible that someone making a subway, or constructing an arch, or laying a pipe or cable, might, inadvertently, interfere with a water main belonging to a water authority.

In Committee we on this side said that the law must be clear and precise. Surely it is right that a Measure of this kind should put the rights and duties of the citizen beyond any argument. The hon. Gentleman the Member for Glasgow, Springburn (Mr. Buchanan) and several of his hon. Friends opposite argued that there was already adequate power within the existing statutes for water authorities not only to have access to the mains for the purpose of maintenance and the like, but, because they had that access, to prohibit, or at least to undo, the result of building over the water main by any other party.

It was pointed out there had been a case in the English courts involving a Mr. Thane who had been so ill-advised as to build a house over a water main. Because he had made it impossible for the water authority concerned to have access to the water main, the matter was taken to the courts and resulted in a decision that Mr. Thane had to pull down his house in order to allow the water authority to have access to the water main.

Mr. William Baxter (West Stirlingshire)

This is an interesting case. What was the purpose of the water authority's wanting to get to the water main under the man's house?

Mr. MacArthur

The hon. Gentleman may well ask that question. I do not know. All that I do know is that if a water authority lays a main it is surely right that it should have the right of access to it for maintenance purposes and the like.

The hon. Gentleman will appreciate that under present statutes there is the power for a water authority to have constant access to the mains in its possession. All that I am claiming is that it is right that in future the law should make it absolutely clear, and citizens in the course of their normal lives should be warned, that they must be careful in what they do, so that they will not build a house over a water main without the consent of the appropriate board, or that they shall not interfere with the water mains in any way.

Mr. W. Baxter

The hon. Gentleman has spoken about a man building his house, inadvertently. He did not seem to know that there was a water main there. He builds a house over a water main, and the water authority does not require to get at a main unless there is a burst. Of course, having built over the water main, whatever damage done to get at the burst would be his responsibility. I cannot see why, if this should happen, any authority should compel a man to take his house down or to interfere with the individual.

Mr. MacArthur

I am grateful to the hon. Gentleman, because he and I are at one on this point. All that I and my hon. Friends wish to do is to avoid the problem. We do not want to see a situation arising in which through a weakness in the law, a citizen, the hon. Gentleman, for example, may build a house over a water main and may then find that he has contravened the law, quite inadvertently. I say "indavertently", because as it at present stands the law provides for free access to the water mains by the authority owning and controlling the mains.

As the Bill stands, there is no provision for the prohibition of a building of this kind. I would not like to think that the hon. Gentleman, for whom I have the greatest regard and affection, might find himself in the position of the unfortunate Mr. Thane, and, having built a house, being made to pull it down, brick by brick in order to give access to the water main. The risk of this would be lessened if the law on this point were precise. It is our duty to pass precise laws, showing the citizen where his interests and duties lie.

We were told, in the most moving terms, by the hon. Gentleman the Member for Springburn, that all this was quite unnecessary, because, he suggested, although he did not say, a man would be advised by his lawyer. He would not be fool-hardy as to build a house over a water main, because his legal adviser would know that in an ancient statute provision was made for an authority to have perpetual access to the main beneath the site of the house. However we have heard of the case of Mr. Thane.

Mr. A. Woodburn (Clackmannan and East Stirlingshire)

The hon. Gentleman has been telling a very interesting story. Could he now explain the point of it, so that we will know what he is wanting to do to the Bill?

Mr. MacArthur

I am sorry if the right hon. Gentleman has missed the point, perhaps he was not with us at the very early stages of our discussions in Committee. I will gladly repeat the point, several times if he wishes.

It is that the argument advanced during previous stages of the Bill was that an amendment of this kind was unnecessary, because there were powers existing to deal with the situation. I hope that the right hon. Gentleman will interrupt me if my argument is not clear. The argument was that water authorities already possess powers, giving them access to the mains in their charge. Is the right hon. Gentleman still with me?

Mr. Woodburn indicated assent.

Mr. MacArthur

It followed because of the canon of construction that a citizen should not be told, but should be aware that he could not build an archway or anything of the kind over a water main because of the right of access provided for in existing statutes I am not satisfied—I hope that the right hon. Gentleman is still with me—that citizens of Scotland should be required to conduct their affairs because of a canon of construction. I do not think that the right hon. Gentleman's constitutents or mine would know what a canon of construction was. I doubt whether they would recognise one if they met one in the street.

Therefore, it is right that we should proceed, as the learned gentlemen who drew up the Public Health (Scotland) Act, 1897, proceeded, and introduce into the Bill a provision making it clear that no one should build over or interfere with a water main without the consent of the board operating it. That is a perfectly reasonable proposition.

Mr. George Willis (Edinburgh, East)

What is a canon of construction?

4.30 p.m.

Mr. MacArthur

As the hon. Gentleman knows, I am not a lawyer, but as I understand it, the power of the canon of construction in this case is this. By existing Statute, water authorities have power perpetually to have access to water mains in their charge for maintenance purposes, and so on. It follows that there is a canon of construction which means that a citizen would be ill-advised to build over the water main because by so doing he would deny the power of the water authority to have access to it. In other words, by his action he would make it particularly difficult for the statute to be carried into effect.

This was the experience of the unfortunate Mr. Thane. The water authority appealed against him. The case was heard before a learned court and Mr. Thane had to pull his house down to allow the water authority to have access to the water main.

It would be as well if the Bill were to include a provision like the one we suggest. It would not change existing law. It would merely underline the responsibility of private citizens in matters of this kind.

Citizens, guided by their solicitors and advisers, know that they need to consult local authorities on building matters. I do not believe that they will know as sharply that it is necessary for them to consult the local water authority. Yet if they do not consult the water authority they may find that they have built a house over a water main which needs attention, but which cannot be attended to because of the presence of the house. If we are to be guided by the findings of the English courts, they may have to pull their houses down so as to provide that access.

It is desirable from every point of view that the law should be precise and clear so that private citizens and their legal advisers know exactly where they stand. If it was right for this provision to be introduced into the Public Health (Scotland) Act, 1897, I see no reason why it is not right for the same provision to be introduced into the Bill.

Dr. Dickson Mabon

Would the hon. Gentleman spend some time in rebutting the arguments which my hon. Friend the Member for Glasgow, Springburn (Mr. Buchanan) used on the question, not of this being unnecessary, but of it being unwise?

Mr. MacArthur

I am glad to extend the argument for as long as the hon. Gentleman wishes. He has asked me to elaborate on two points: first, is this proposal unnecessary; and, secondly, is it unwise? I do not believe that it is unwise for the simple reason that the law in this matter, as in other matters, should be clear and precise. I believe that the Bill would be clear and precise if the new Clause were included in it or if later a provision similar to it were introduced.

Secondly, the hon. Gentleman asks whether the new Clause is necessary. In the strict and narrowest legal sense, it is unnecessary for the Clause to be included simply because of the canon of construction to which I have referred. It is unnecessary because there is already power in existing legislation for water authorities to have access to water mains in order to carry out maintenance work.

All that I am saying is that it is not right for Parliament to expect the private citizen to have psychic observance of matters of this kind or to know that in an ancient Statute there is a requirement on them not to build over a water main. It is better for the Bill to make it clear to private citizens and their solicitors that when building houses they should have regard to the responsibilities of water authorities in the area. That is all that we ask. The new Clause is reasonable, necessary and wise and is ultimately for the protection of the private individual whom we seek to look after.

I do not think that it is fair or reasonable for right hon. and hon. Members opposite to declare, as they declared earlier, that a provision of this kind is unnecessary because the law already provides this protection. We have seen what happened in England. Mr. Thane and, I believe, another gentlemen had to pull down their houses. The hon. Member for Springburn may think it reasonable that private citizens should have to pull down their houses because they have contravened an Act of which they had no knowledge. I do not share that view. It is far better to enact legislation which makes it less likely that Mr. Thane and others like him will build their houses over water mains in the first place. That surely makes sense.

Secondly, I am not sure that it is a good idea for Scottish legislation to depend on rulings of the English courts. We are very proud in Scotland of our distinct judicial system. We are very proud of our structure of laws protected by the 1707 Act. I do not think that it is reasonable for hon. Members to suggest that the Scottish law should be governed in its interpretation by decisions of the English courts. I would much rather have the matter established once and for all in the Bill.

I hope that the Minister will accept the new Clause. If he is not able to accept its wording, I hope that he will accept the principle of it and give an undertaking that during the final stage of the Bill he will introduce a new Clause meeting the point which we have abundantly exposed.

Mr. W. Baxter

I do not know why the hon. Member for Perth and East Perthshire (Mr. MacArthur) should get so upset and hot under the collar. It seems reasonable that no one would want to build a house over a sewer or water main. In fact, I think that people are prohibited from doing so by the building byelaws and the planning control exercised by local authorities.

Water mains may be 12, 14 or 18 ins. in diameter, but take a main 1 in. or 2 ins. in diameter which has been in place for some time but which is not marked on the plan of the town or village. Suppose that, inadvertently, the local authority or a private individual builds a house over it. The power will now be vested in the water authority to tell them to take it down, notwithstanding the fact that the main has not caused any trouble whatsoever. If a water authority were given the power which the hon. Gentleman suggests in his Clause, it could compel the individual or local authority to take down that house.

Mr. MacArthur

I appreciate that the lion. Gentleman was not on the Committee and, therefore, would not have been present on the two mornings which we devoted to this Amendment previously—

Mr. Willis

On that occasion, the speech of the hon. Member for Perth and East Perthshire (Mr. MacArthur) was even longer.

Mr. MacArthur

I did not quite hear that interjection from the hon. Member for Edinburgh, East (Mr. Willis), but we moved the Amendment in the most modest and shortest way possible. It is a matter of fundamental principle.

The point is not that the water authority should have power to compel someone to pull down a house. I am trying to prevent such a situation arising and ensure that if anyone wished to build a house over a water main, he should first obtain the consent of the water authority and so prevent the unfortunate situation which the hon. Member for Springburn described earlier.

Mr. W. Baxter

It will add to the difficulties of a person building a house if he has to go to yet another authority. That is not a good way of trying to streamline procedures. Anyone seeking to build a house at present has a very torturous task before him. He has to obtain planning consent, and take account or roads, building byelaws, and so forth. Now the hon. Gentleman seeks to add further to the difficulties of a developer by requiring him to go to the water authority to make sure that everything is all right from its standpoint.

I have never known of a case, but in certain circumstances it might be desirable to build a house over a water main or sewer. In such a case, a number of safeguards would be written into the agreement with the local authority which would be very helpful in the event of it being necessary to carry out any repair to a burst pipe which occurred under the building. It would be wrong of this Committee to inflict another problem on a developer by putting this Clause into the Bill.

A water authority has a duty to perform, and it would be wrong to ask it to interfere in general questions of development. The hon. Gentleman is making a mountain out of a molehill, the molehill in this case being Mr. Thane, who built his house over a water main and who, for some unknown reason, was ordered to pull it down. I cannot understand why he was asked to do it.

If there had been a burst in the water main, his house might have been flooded and he would have had no claim for compensation. The floorboards might have had to be torn up by the water authority for the purpose of repairing the water main, and in such a case I could understand it if he was held partly responsible, but I cannot understand why he should be compelled to pull down his house.

Surely this is all wrong. It is seldom that a water main bursts and it would be a million-to-one chance that it would burst under a house which inadvertently or otherwise, had been built over a 1 in. or 2 in. main. Our duty is not to add to the difficulties of building houses. We should try to make our legislation as simple as possible.

There are factors which militate against even a water authority being able to tell precisely where a water main is. I had an occasion recently in my own business. A trench was being dug in a position which was said to be some feet from a water main. However, the men digging the trench struck the main. It is obvious that, when the line of the main was being put on the plan, it was put in some feet in the wrong direction. If, in that case, a house had been built over it, who would have been held responsible for the mistake?

I counsel the Minister to pay no heed to the Amendment which has been moved by the hon. Gentleman. We have sufficient safeguards at present, and, in my opinion, it would be foolish to add further to the difficulties of anyone who seeks to build a house. In the case of a local authority, which is different from the water authority, it may be that it is seeking to redevelop the centre of its village or town, and it may be necessary from time to time to build houses or blocks of flats over water mains. I think that it would be a bad thing to agree to this new Clause.

4.45 p.m.

Mr. Richard Buchanan (Glasgow, Springburn)

Reference has been made to the cases which I mentioned in Committee. However, they took place in 1940, before the building regulations were in being as they are today. As my hon. Friend the Member for West Stirlingshire (Mr. W. Baxter) has said, these matters would have been known, and precautions would have been taken at the time to ensure that the houses were not necessarily pulled down. However, they were built without notification to the planning authority and the water authority and were obviously causing damage to water mains. As a result, the court held that they should come down.

The hon. Member for Perth and East Perthshire (Mr. MacArthur) has changed his ground somewhat. In Committee, we debated the rights of water undertakings to protect their mains. I think that the House must accept that, when a statutory water undertaking lays water mains, whether on private or public land, it must be allowed access to them in order to maintain, operate and repair them. That being the case, the law consistently has supported water undertakings and given them the right to operate, maintain and repair their mains for the last 150 years. The courts have always protected them, not only in England but in Scotland, Northern Ireland and Wales. The Amendment is unnecessary now that the hon. Gentleman is taking up the cudgels on behalf of the citizen who may build a house over a water main.

Under the ordinary rules of interpretation, if this Clause is put into the Bill, it throws doubt on the situation everywhere else and on the position relating to existing mains. If matters are proven by law in certain cases, the courts will say that, elsewhere, Parliament meant them to be permitted. By this Clause every situation, past present and future, will be taken to be covered, and there will be grave doubt about circumstances other than those indicated in the hon. Gentleman's Clause.

The Clause does not cover every possible situation, however, and the cure could be worse than the disease. What should be protected here is not the main itself, but access to it. Access can be impeded not merely by buildings over a main, but by buildings which have been erected in such a way that they are too close to a main. Furthermore, it is not only buildings which can affect such access, because there may be dumps of earth, rubbish, or even old cars; and there are plenty of those lying round.

I think that I have said enough to show that although the Amendment has been put forward in the interests of the water undertakers, it may redound to their disadvantage. Speaking after consulting the experts in the water industry, I do not believe that the Clause in its present form will give them any more protection than they have under the existing law, and I ask my hon. Friend to reject it.

Dr. Dickson Mabon

I would like to draw the attention of the House to what the hon. Member for Perth and East Perthshire (Mr. MacArthur) said in Committee, when he was kind enough to withdraw a not dissimilar clause, following an assurance which I gave about further possible developments. He said: However, the Minister told us that he saw the strength of our argument and that he recognised that there are two sides to the question. He was good enough to say that it is his intention, I think he said next week, to discuss the principle of the new Clause with the Association of County Councils and with other bodies outside. I am glad to know that he is taking the Amendment so seriously, and, in view of the assurance that he has given that the principle will be considered carefully in the light of informed opinion, I beg to ask leave to withdraw the new Clause."—[OFFICIAL REPORT, Scottish Standing Committee, 16th March, 1967, c. 466.] A meeting was held and it was attended by the Association of County Councils, who are primarily concerned about this, the British Waterworks Association, and the Scottish Office. The British Waterworks Association represents a large number of bodies in Scotland as well as in England and Wales, and, I believe, in Northern Ireland, too. It therefore sees the position in a British context, and I think I tried to make that clear in some of my earlier remarks in Committee when I said that the Government must look at these matters not merely in a Scottish context, but in a British one.

The Association of County Councils is the only one of three rating local authority associations to ask us about this. The other two are content. They are the Convention of Royal Burghs, and the Association of Counties of Cities, so it cannot be presumed that the whole of Scotland is up in arms about this. This is an argument—and I admit that there is sense in it—between, on the one hand, the Association of County Councils, and, on the other, the British Waterworks Association. I tried to explain the view that, on balance, the Government felt that an Amendment such as was proposed in Committee was a mistake. First, we agreed with the opposers of the Clause that it was unnecessary, but we went further and said that in its present form it would be unwise, because the hon. Gentleman's main object—and he said it several times this afternoon—is to clarify a doubt about the law.

There is no other claim here except that of the unfortunate man whose house was pulled down. The hon. Gentleman says that he does not want this sort of thing to happen again, and that, therefore, we must clarify the law. What I do not think he has recognised—and I invited him to consider this—is what my hon. Friend the Member for Glasgow Springburn (Mr. Buchanan) brought out at the end of his speech, namely, that if we were to incorporate this provision into the Bill we would cast more doubt on the law than there is at the moment.

The Scottish Office was perfectly fair in listening to the arguments put forward by both sides at the meeting. It is certain that if we were to change the law it would require a great deal of thought on our part. It would require much lengthier proposals than this. It would have to include every possibility, some of which were touched on by my hon. Friend, and even then we could not be sure that we had dealt with everything. Furthermore, in the event of doing that, I think that we would have to make it a British statute.

The English are not in this argument for the moment. They are content with the way in which the law operates in England and Wales. We have not received any representations from English local authorities asking us to make this change in a Scottish Bill so that the case will be strengthened to change the position in England and Wales.

I am sorry that the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) is not here, because he was very helpful on this matter, even when he supported his hon. Friend, and I would like to draw attention to some of the things he said. He said, first, that if a public authority is given statutory powers"— he was referring to the powers with regard to sewers provided in the 1897 Public Health Act— there are implied consequential powers to enable it to see that it can carry out its statutory duties.

Mr. MacArthur

This is the canon of construction?

Dr. Mabon

Yes, in the context, not of the Public Health Act, but of the Water Act, 1946, which means that it has power to inspect, repair, maintain, alter, renew or remove the main. I think that my hon. Friend the Member for Springburn made this point.

The hon. and learned Gentleman went on to say: Undoubtedly, if a building would prejudice the capacity or ability of the authority to exercise its statutory powers an interdict would be granted in Scotland, as in England, and if it were erected without consent there would be power for the local authority by court order to have it removed. A little later the hon. and learned Gentleman said: I would not be disposed to press the new Clause because in a strict legal sense it is not necessary…".—[OFFICIAL REPORT, Scottish Standing Committee, 16th March, 1967; cc. 455–457.] Therefore, the only argument in favour of making the change is to remove doubt. It is not that it is necessary to do so, but that it is desirable. Nobody has argued a necessitous case. What is being argued is a desirable one, but the cure, as my hon. Friend said, might be worse than the disease. The proposal is to remove a doubt, but the cure might give rise to a considerable number of additional doubts, certainly if the form of the Clause were accepted.

I never criticise new Clauses or Amendments on grounds of drafting, because I consider this to be an unfair criticism of the Opposition or of private Members. But this is not a question of drafting. It is a question of having an exhaustive list of possibilities which would be incorporated as a positive and clear provision. This has defied the Scottish Office, and the British Waterworks Association, otherwise such a provision would have been devised. It has defied the Association of County Councils, and it has defied the hon. Member for Perth and East Perthshire, too, because, he has now had two chances and has not come up with what could be described as a provision which would cover every possibility. I reinforce the argument put forward by my hon. Friend the Member for West Stirlingshire (Mr. W. Baxter), that it is undesirable to cast more doubt on this matter when, in the present situation, all is well.

The hon. Gentleman asks us to think of Mr. Thane. He represents the classic case which has given rise to the rulings which allow water developers to proceed with sterilising development. In other words, they are able to say, "Look at this terrible case in England. Please do not, therefore, interfere with the water mains".

Mr. MacArthur

They are rulings by English courts.

Dr. Mahon

But, with respect, these rulings are observed in Scotland.

Perhaps I might quote the former Solicitor-General for Scotland, who was the sponsor of this proposition. He said that an interdict would be granted in the courts of Scotland if this provision was infringed in this way. In other words, the existence of the very thing which is causing the hon. Gentleman concern is the reason why we are able to prevent such cases occurring in England and Wales, and on the contention of his colleague, in Scotland, too. The advice available to the Government is of the same quality, namely, that if such an interdict were sought in the Scottish courts it would be granted.

I emphasise what my hon. Friend said in concluding his argument. First, this provision is unnecessary. The hon. Gentleman has not demonstrated why it is necessary. He has not given us one example of why it is necessary, nor has the Association of County Councils.

Secondly, the Government have argued with their opponents that it would be unwise to accept the Clause because more doubts would be caused by seeking to amend the law in this manner than would be removed by doing so.

Lastly, unless we are willing to draw up a concise and exhaustive provision which can be operated in this Bill and, we assume, operated in England at the earliest opportunity, we shall not have a satisfactory situation, because it demands a British solution. No one has prescribed that, and my advice, now that we have discussed this matter with the Association of County Councils, the British Waterworks Associations and the Scottish Office, is that we should not agree to the new Clause.

5.0 p.m.

Mr. MacArthur

It is apparent from the hon. Member's argument that the Association of County Councils supports the principle of the Clause. Is that right?

Dr. Mabon

I am led to believe that the Association, by coming to the meeting, wanted a change. Whether it supports the proposition contained in the Clause I do not know; perhaps the hon. Gentleman can tell us.

Mr. MacArthur

My understanding is that the Association supports the principle. This does not surprise me. The hon. Member has argued that the Clause is strictly unnecessary. I am obliged to him for what he has said today and at previous stages, namely, that he does not expect us to be able to produce on every occasion precisely the required wording. I applaud his approach to this matter. He is good enough to recognise that certain difficulties are involved and that new Clauses and Amendments are often put down simply to present to the House or the Committee the principle involved. In this case that principle is clear.

The hon. Member says that the Clause is unnecessary because the law is satisfactory as it stands. I am sorry that I have not yet been able to convince him or his hon. Friends that the law is not satisfactory, and that some provision is necessary to clarify it. It is all very well for him to say that we must look at the question in a British context and take account of what the English courts have ruled in English circumstances. I remind him that we are trying to pass a Scottish Bill, designed to deal with Scottish water administration in a purely Scottish context, and we are concerned with the protection of the rights of Scottish citizens. It is not reasonable to argue that the Scottish citizen and his legal advisers should have regard to the decisions of English courts in these matters.

Dr. Mabon

The hon. Gentleman must recognise that many decisions taken in Scottish courts impinge on English law. The two systems interact. For example, in the case of obscene publications, governed by an Act which applied only to England and Wales, the ruling of an English court in respect of a certain publication was endorsed by the present Lord Grant, who was then Lord Advocate. He said that no further proceedings need to be taken in Scottish courts. In practice it may be undesirable, but that is what happens.

Mr. MacArthur

I am aware of that. I believe that the case to which the hon. Member has referred sprang from a question that I put down.

Dr. Mabon

As a matter of fact, it was my Question.

Mr. MacArthur

It was the hon. Member or myself—it depends on which work of literary merit we are referring to. I believe that I referred to the first one. He may have followed with another. At least we take the same view on that question.

I maintain, however, that it is not reasonable that Scottish citizens should be bound in their actions by decisions of the English courts. I cannot believe that we should pass a Bill dealing with a new Scottish organisation, quite different from anything in England, which does not clearly define the rights and duties of the citizen.

I realise that the Minister is not quibbling about the wording of the Clause. It may be that the wording is not quite right, but the principle is clear. It is not sufficient to say—as the Minister and the hon. Member for Glasgow, Springburn (Mr. Buchanan) are saying —that it does not matter whether or not we incorporate the Clause. Citizens in Scotland may be governed by the canon of construction, but people building houses in Scotland do not think of these things. The Minister, his advisers and the courts see these matters in a completely different light. The man in the street does not have regard to the finer points of English law in these matters. Why should he?

Mr. Donald Dewar (Aberdeen, South)

If the hon. Member wants Scottish courts to disregard all English precedents he is seeking to rewrite the whole practice of the Scottish Court of Session and Scottish other courts.

Mr. MacArthur

I am not suggesting that they should disregard all the findings but that the Scottish law with which we are now dealing should be clear and precise. I see no reason why it should not be.

The Minister paid a compliment to my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), who has apologised for his inability to be with us today. I support what the Minis-

ter says about my hon. and learned Friend. I must point out that in another part of the speech of my hon. and learned Friend from which the Minister has quoted, he said: It is a well-recognised canon of construction that if a public authority is giving statutory powers there are implied consequential powers to enable it to see that it can carry out its statutory duties…it seems to me that there are arguments for some such clearly stated provision in this legislation. The provision to which he was there referring was the Clause in its original version, as put forward in Committee.

My hon. and learned Friend continued: One hears again and again how undesirable it is that public legislation should not be clear, how desirable it is that it should be readily understood by the public If some such provision is not made, the public will have to rely on a canon of construction of which it may not be aware."—[OFFICIAL REPORT, Scottish Standing Committee, 16th March. 1967; c. 455–7.] Because the public may well not be aware of this canon of construction I appeal to the House to accept the new Clause, which makes the position absolutely clear, just as our predecessors agreed that in the 1897 Public Health Act a similar proposition should be agreed to. It was right then, and I believe that it is right now.

I do not insist on the precise wording, but I ask my hon. and right hon. Friends to press the Clause to a Division, because the principle involved is of fundamental importance.

Question put, That the Clause be read a Second time:—

The House divided: Ayes 136, Noes 199.

Division No. 316.] AYES [5.08 p.m.
Allason, James (Hemel Hempstead) Campbell, Gordon Gibson-Watt, David
Astor, John Carlisle, Mark Gilmour, Sir John (Fife, E.)
Awdry, Daniel Carr, Rt. Hn. Robert Goodhart, Philip
Baker, W. H. K. Clegg, Walter Goodhew, Victor
Balniel, Lord Corfield, F. V. Gower, Raymond
Batsford, Brian Costain, A. P. Grant, Anthony
Bell, Ronald Craddock, Sir Beresford (Spelthorne) Grant-Ferris, R.
Bennett, Sir Frederic (Torquay) Cunningham, Sir Knox Gresham Cooke, R.
Bennett, Dr. Reginald (Gos. & Fhm) Davidson, James(Aberdeenshire, W.) Grimond, Rt. Hn. J.
Blaker, Peter d'Avigdor-Goldsmid, Sir Henry Gurden, Harold
Bossom, Sir Clive Dean, Paul (Somerset, N.) Hall, John (Wycombe)
Boyd-Carpenter, Rt. Hn. John Doughty, Charles Hall-Davis, A. G. F.
Braine, Bernard Drayson, G. B. Hamilton, Marquess of (Fermanagh)
Bromley-Davenport, Lt. Col. Sir Walter Eden, Sir John Hamilton, Michael (Salisbury)
Brown, Sir Edward (Bath) Elliot, Capt. Walter (Carshalton) Harris, Reader (Heston)
Bruce-Gardyne, J. Errington, Sir Eric Harrison, Col. Sir Harwood (Eye)
Buchanan-Smith, Alick(Angus, N&M) Eyre, Reginald Harvey, Sir Arthur Vere
Bullus, Sir Eric Foster, Sir John Hawkins, Paul
Burden, F. A. Galbraith, Hn. T. G. Higgins, Terence L.
Hiley, Joseph Maginnis, John E. Russell, Sir Ronald
Hill, J. E. B. Marples, Rt. Hn. Ernest Scott, Nicholas
Hirst, Geoffrey Maude, Angus Sharpies, Richard
Holland, Philip Mawby, Ray Shaw, Michael (Sc'b'gh & Whitby)
Hooson, Emlyn Maxwell-Hyslop, R. J. Sinclair, Sir George
Hordern, Peter Maydon, Lt.-Cmdr. S. L. C. Smith, John
Hunt, John Mills, Peter (Torrington) Steel, David (Roxburgh)
Hutchison, Michael Clark Miscampbell, Norman Stodart, Anthony
Iremonger, T. L. Mitchell, David (Basingstoke) Stoddart-Scott, Col, Sir M. (Ripon)
Irvine, Bryant Godman (Rye) More, Jasper Tapsell, Peter
Jenkin, Patrick (Woodford) Morrison, Charles (Devizes) Taylor, Edward M.(G'gow,Cathcart)
Jennings, J. C. (Burton) Munro-Lucas-Tooth, Sir Hugh Taylor, Frank (Moss Side)
Jopling, Michael Murton, Oscar Temple, John M.
Joseph, Rt Hn. Sir Keith Nabarro, Sir Gerald Thatcher, Mrs. Margaret
Kimball, Marcus Noble, Rt. Hn. Michael Wainwright, Richard (Colne Valley)
King, Evelyn (Dorset, S.) Orr-Ewing, Sir Ian Walters, Dennis
Kitson, Timothy Osborne, Sir Cyril (Louth) Ward, Dame Irene
Lancaster, Col. C. G. Page, Graham (Crosby) Webster, David
Langford-Holt, Sir John Page, John (Harrow, W.) Whitelaw, Rt. Hn. William
Lloyd, Rt.Hn.Geoffrey(Sut'nC'dfield) Pearson, Sir Frank (Clitheroe) Wills, Sir Gerald (Bridgwater)
Lloyd, Rt. Hn. Selwyn (Wirral) Percival, Ian Wilson, Geoffrey (Truro)
Loveys, W. H. Pike, Miss Mervyn Wolrige-Gordon, Patrick
Lubbock, Erie Prior, J. M. L. Wood, Rt. Hn. Richard
McAdden, Sir Stephen Pym, Francis Worsley, Marcus
MacArthur, Ian Renton, Rt. Hn. Sir David Younger, Hn. George
Mackenzie, Alasdair(Ross&Crom'ty) Ridley, Hn. Nicholas
Maclean, Sir Fitzroy Rossi, Hugh (Hornsey) TELLERS FOR THE AYES:
Mr. R. W. Elliott and Mr. Monro.
Abse, Leo Faulds, Andrew Lyons, Edward (Bradford, E.)
Allaun, Frank (Salford, E.) Fernyhough, E. Mabon, Dr. J. Dickson
Alldritt, Walter Finch, Harold McBride, Neil
Allen, Scholefield Fitt, Gerard (Belfast, W.) MacColl, James
Anderson, Donald Fletcher, Raymond (Ilkeston) MacDermot, Niall
Armstrong, Ernest Floud, Bernard McGuire, Michael
Ashley, Jack Foley, Maurice McKay, Mrs. Margaret
Atkinson, Norman (Tottenham) Ford, Ben Mackenzie, Gregor (Rutherglen)
Bacon, Rt. Hn. Alice Forrester, John Mackintosh, John P.
Bagier, Gordon A. T. Fowler, Gerry MacMillan, Malcolm (Western Isles)
Barnett, Joel Galpern, Sir Myer MacPherson, Malcolm
Baxter, William Garrett, W. E. Mahon, Peter (Preston, S.)
Beaney, Alan Ginsburg, David Mallalieu, E. L. (Brigg)
Bence, Cyril Gray, Dr. Hugh (Yarmouth) Manuel, Archie
Bennett, James (G'gow, Bridgeton) Greenwood, Rt. Hn. Anthony Mapp, Charles
Bidwell, Sydney Gregory, Arnold Marquand, David
Binns, John Griffiths, David (Rother Valley) Mason, Roy
Bishop, E. S. Griffiths, Rt. Hn. James (Llanelly) Mellish, Robert
Blackburn, F. Hale, Leslie (Oldham, W.) Mendelson, J. J.
Booth, Albert Hamilton, James (Bothwell) Mikardo, Ian
Boston, Terence Hamilton, William (Fife, W.) Millan, Bruce
Bowden, Rt. Hn. Herbert Hannan, William Miller, Dr. M. S.
Braddock, Mrs. E. M. Harper, Joseph Milne, Edward (Blyth)
Bray, Dr. Jeremy Hart, Mrs. Judith Molloy, William
Brooks, Edwin Haseldine, Norman Morgan, Elystan (Cardiganshire)
Brown, Rt. Hn. George (Belper) Hilton, W. S. Moyle, Roland
Brown,Bob(N'c'tle-upon-Tyne, W) Hooley, Frank Murray, Albert
Buchanan, Richard (G'gow, Sp'burn) Houghton, Rt. Hn. Douglas Neal, Harold
Butler, Mrs. Joyce (Wood Green) Howarth, Harry (Wellingborough) Norwood, Christopher
Cant, R. B. Howell, Denis (Small Heath) Oakes, Gordon
Carmichael, Neil Hughes, Rt. Hn. Cledwyn (Anglesey) O'Malley, Brian
Coe, Denis Hughes, Emrys (Ayrshire, S.) Orme, Stanley
Coleman, Donald Hughes, Hector (Aberdeen, N.) Oswald, Thomas
Concannon, J. D. Hynd, John Owen, Will (Morpeth)
Conlan, Bernard Jackson, Colin (B'h'se & Spenb'gh) Palmer, Arthur
Corbet, Mrs. Freda Jackson, Peter M. (High Peak) Pannell, Rt. Hn. Charles
Craddock, George (Bradford, S.) Jeger, Mrs.Lena(H'b'n&St.P'cras,S.) Park, Trevor
Crossman, Rt. Hn. Richard Jenkins, Rt. Hn. Roy (Stechford) Pavitt, Laurence
Cullen, Mrs. Alice Johnson, Carol (Lewisham, S.) Pearson, Arthur (Pontypridd)
Davies, G. Elfed (Rhondda, E.) Jones, Dan (Burnley) Peart, Rt. Hn. Fred
Davies, Ednyfed Hudson (Conway) Jones, J. Idwal (Wrexham) Pentland, Norman
Davies, Ifor (Gower) Kelley, Richard Perry, George H. (Nottingham, S.)
Davies, Robert (Cambridge) Kenyon, Clifford Price, Christopher (Perry Barr)
Davies, S. O. (Merthyr) Kerr, Mrs. Anne (R'ter & Chatham) Price, Thomas (Westhoughton)
Dewar, Donald Kerr, Dr. David (W'worth, Central) Price, William (Rugby)
Dickens, James Kerr, Russell (Feltham) Rankin, John
Doig, Peter Lee, Rt. Hn. Frederick (Newton) Reynolds, G. W.
Driberg, Tom Lestor, Miss Joan Rhodes, Geoffrey
Dunwoody, Mrs. Gwyneth (Exeter) Lewis, Arthur (W. Ham, N.) Roberts, Albert (Normanton)
Eadie, Alex Lewis, Ron (Carlisle) Robinson, Rt.Hn.Kenneth(St.P'c'as)
Edwards, Rt. Hn. Ness (Caerphilly) Lomas, Kenneth Robinson, W. O. J. (Walth'stow, E.)
Edwards, William (Merioneth) Loughlin, Charles Rogers, George (Kensington, N.)
Ensor, David Luard, Evan Rose, Paul
Ross, Rt. Hn. William Thomas, George (Cardiff, W.) Wilkins, W. A.
Rowland, Christopher (Meriden) Thornton, Ernest Willey, Rt. Hn. Frederick
Rowlands, E. (Cardiff, N.) Tinn, James Williams, Clifford (Abertillery)
Sheldon, Robert Tomney, Frank Williams, W. T. (Warrington)
Shinwell, Rt. Hn. E. Urwin, T. W. Willis, George (Edinburgh, E.)
Short, Rt.Hn.Edward(N'c'tle-u-Tyne) Varley, Eric G. Wilson, William (Coventry, S.)
Silkin, Rt. Hn. John (Deptford) Wainwright, Edwin (Dearne Varley) Winnick, David
Silverman, Julius (Aston) Walden, Brian (All Saints) Winterbottom, R. E.
Silverman, Sydney (Nelson) Walker, Harold (Doncaster) Woodburn, Rt. Hn. A
Slater, Joseph Wallace, George Woof, Robert
Small, William Watkins, David (Consett)
Spriggs, Leslie Watkins, Tudor (Brecon & Radnor) TELLERS FOR THE NOES:
Stonehouse, John Wellbeloved, James Mr. Charles R. Morris and
Strauss, Rt. Hn. G. R. Whitaker, Ben Mr. Grey.
Symonds, J. B. Whitlock, William