INTERPRETATION AND CROWN APPLICATION OF THIS PART (Hansard, 28 July 1982)

§ The Under-Secretary of State for Scotland (Mr. John MacKay)
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker
With this it will be convenient to take the following: Government new clause 2—Application to Crown.
Government new clause 3—Powers to execute works on seashore.
Government amendments Nos. 137, 147 to 155 and 170.

§ Mr. MacKay
It may be for the convenience of the House if I summarise the effect of these amendments and new clauses which affect the clauses dealing with the seashore and make technical adjustments to the way in which the Bill affects the Crown.
They respond to points raised by a number of hon. Members in Committee. Although Government amendments Nos. 157 and 159 have not been included in this group, I should like to include them in my explanation as that may be for the benefit of the House.

§ Mr. Norman Hogg (Dunbartonshire, East)
Will the hon. Gentleman give an assurance that the subjects now under discussion fall within his ministerial responsibility?

§ Mr. Deputy Speaker
Order. I am reluctant to interrupt the Minister so early in his speech, but I hope that he did not say that he would discuss amendments that have not been selected.

§ Mr. MacKay
They have been selected, Mr. Deputy Speaker, and will arise later.

§ Mr. Deputy Speaker
In that case, the hon. Gentleman should deal with them at the appropriate time.

§ Mr. MacKay
I accept your advice, Mr. Weatherill.

§ Mr. Hogg
On a point of order, Mr. Deputy Speaker. I asked the Minister to clarify whether the subjects on which he is about to comment fell within his ministerial responsibility. I would be grateful if you could ask him to answer that point.

§ Mr. Deputy Speaker
First, that is not a point of order; secondly, the Minister has hardly started his speech.

§ Mr. MacKay
I assure the hon. Gentleman that I have great knowledge of the seashore. Frankly, given the weather in Scotland today, it would be nicer to be there than here.
New clause 1 and amendment No. 137 clarify a number of aspects that could lead to uncertainty were no reference 1092 to be made to them. The new clause defines "chief constable" for the purposes of part VII in the same way as clause 81 does for part VI by reference to the police area in which the person is taken into custody. It also makes it clear that the chief constable is not expected to undertake his responsibilities under part VII personally, but may delegate them to other officers in his force. It expressly provides that part VII binds the Crown. This is clearly implicit in clause 84(4), but in view of the terms of Government new clause 2 it was considered desirable to provide for this expressly.
Government amendments Nos. 155 and 157 clarify the Crown applications of the Bill by making it clear that nothing in the legislation binds the Crown, with the exceptions of parts VI and VII and the seashore clauses.
Government new clause 2 and amendment No. 159 are technical in that their main effect is to substitute references to the Bill "not binding the Crown" for references to the Bill not "affecting prejudicially" the interests of the Crown. The new clause defines the appropriate authority to give or withhold consent when local authorities propose to make byelaws affecting Crown land under clause 122 or to carry out works on the seashore under clause 123.
Government amendments Nos. 147 and 153 deal with the separate but related question of the protection of public rights when local authorities intend to make byelaws or undertake works. This matter was raised in Committee by the hon. Member for Glasgow, Provan (Mr. Brown) and my hon. Friend the Member for Dumfries (Sir H. Monro). We have clarified this by providing in Government amendment No. 153 that in making byelaws relating to the seashore, adjacent waters and inland waters a council must have regard to the need to protect and maintain any public rights. A similar provision in relation to works that councils propose to carry out is contained in subsection (3) of new clause 3, which replaces clause 123.
The Secretary of State as confirming authority will, of course, take the necessity for any effects on public rights into account when deciding whether byelaws should be confirmed after the usual period for objections and public inquiry if necessary.

§ Mr. Foulkes
Will the Minister explain how that will alter the responsibility for providing groins on the seashore? Does it alter that responsibility?

§ Mr. MacKay
It does not alter it at all. If the hon. Gentleman reads new clause 3, which replaces clause 123, he will see that it merely clarifies the procedures which the local authority has to follow before it can build groins on the seashore—that is, of course, if it wishes to build the groins on the seashore.
Amendments No. 148 to 152, taken with amendment No. 170 to the interpretation clause 124, redraft the byelaw-making powers in the present clause 122 to meet the concern that was expressed in Committee by my hon. Friends the Members for Dumfries and for Bute and North Ayrshire (Mr. Corrie).
There are four main effects. First, byelaws can be made only if they are shown to be necessary. Secondly, the provisions narrowly define the scope of byelaws to the regulation or prohibition of trade or business activities, the regulation of the use of vehicles, and the regulation of sporting and recreational activities. In other words, the list is exhaustive rather than illustrative. Thirdly, as suggested 1093 by my hon. Friend the Member for Bute and North Ayrshire, they provide that different parts of the seashore may be set aside by the byelaws for different activities. Fourthly, they make more rigorous the requirement for the prior consent of owners and lessees before byelaws are made, for advertisement if they cannot be traced, and for prior consultation with sporting and recreational interests.
Finally, as I mentioned earlier in response to a question from the hon. Member for South Ayrshire (Mr. Foulkes), new clause 3 redrafts clause 123 to make provisions similar to what was provided in clause 122 for amenity works—of the type, for instance, that the hon. Gentleman asked about, and on which if he listens for a moment he will get the answer— which a council proposes to carry out on the seashore or in or on adjacent waters". The changes include new requirements for regard to be had to public rights and for the prior consent of owners and lessees.
I hope that my hon. Friends and the House will agree that the amendments fully meet the spirit of what was said in Committee, and I commend them to the House.

§ Mr. Dewar
The Under-Secretary of State for Scotland, the hon. Member for Argyll (Mr. MacKay), said that the list was "exhaustive rather than illustrative". I can only say that I found his remarks exhausting and that they did not illustrate much to me. They were positively impenetrable. We have not got off to what might be called a flying start in the jungle into which we have now plunged.
We cannot go into the matter in great detail. If we were in Committee we could spend many happy hours going through the dots and commas, and examining the nuances of the Government's proposals. However, as I understand the general drift, the Government are seeking to meet a number of criticisms that were levelled at them, largely by Conservative Back Benchers.
This was one of the few issues on which Conservative Members were more active in Committee than Opposition Members. The Government were criticised for leaning over too far in favour of conservation groups and for erecting a potentially bureaucratic structure which could not be defended and which could lead to a serious infringement of public rights and of the freedom of individuals to enjoy themselves on the seashore. Indeed, the hon. Member for Dumfries (Sir H. Monro) accused the Minister of being the champion of bureaucracy. That was the unkindest cut of all. The changes that we are now contemplating are the result of what was said in Committee.
I have sympathy with some of the remarks that were made by Conservative Members. The hon. Member for Bute and North Ayrshire (Mr. Corrie) perhaps overstated the case, but I understand the basis of his anxiety. He was worried about preservation groups that had what he described as a paranoid hatred of anything that had a motor in it. He said that such groups seemed to want to conserve every square inch of the countryside and seashore. I am in favour of conservation, but I agree that some of the powers originally proposed were very sweeping and would perhaps be rather difficult to control, because of a lack of definition.
The Minister has kept the limitations, in that the byelaw can only be 1094 for the purpose of preventing nuisance or danger at, or preserving or improving the amenity of, or conserving the natural beauty of, the seashore". Thus, conditioning factors still have to be met, but, compared with the old clause which we are replacing, in amendment No. 148, we have a much narrower group of objectives for byelaws. The Government are proposing to delete the provisions about regulating or prohibiting the erection, replacement or use … of any booth, tent, shed, hut, stand … the playing of games on the seashore and … the activities of … water skiers, sand yachtsmen and persons engaged in similar recreational activity". Is this a cosmetic change, or is it a real change? Have the Government taken out illustrations of what the byelaws can do, or have they in some way restricted the scope of byelaws by redrafting the clause? If it is merely cosmetic, if the Government have not specifically provided for the regulation of recreation of the kind which so alarmed the hon. Member for Bute and North Ayrshire, if the scope of the byelaws is restricted, and if the powers are still there but are clouded by less specific examples, Conservative Members will not feel that there has been much improvement or that we have made much progress. How real is the change? Is it merely a matter of presentation, whereby the draftsmen have produced a form of words which does not change the reality but perhaps makes it more acceptable to the doubters on the Government Back Benches?
There is another change. In the old form, we had arguments about the consent of the owners of any salmon fishing rights. The hon. Member for Dumfries proclaimed his devotion to wild-fowling and stated his interest in that respect. He said that if the owners of salmon fishing rights were to be consulted, we should consult also wild-fowling and the many other recreational and sporting interests that might be affected. The reference to salmon fishing no longer stands on its own. Under amendment No. 150 a duty is laid on a district or islands council to consult proprietorial interests of various kinds which might be affected or which might abut on the seashore. I take it that there will still be no duty to consult, for example, recreational interests, as Tory Back Benchers sought to provide in Committee, unless those recreational interests happen, by coincidence, to be proprietors of the land concerned or the adjoining land. Perhaps the Minister will comment on that matter.
Lastly, there is the whole matter of the Crown. Will the Minister tell us whether there has been any real change in the new form? He will remember that in Committee he was particularly keen to point out the benefits of the then clause 122 (a), which referred to the public rights therein under the general guardianship of the Crown. He tried to reassure Conservative Members by saying that that was an important buttress against an arbitrary use of the byelaw power. It seems that that form of words has gone. Perhaps the Minister will tell us whether there has been any real change in that respect.
I do not welcome these provisions, because, as I say, I am not sure to what extent they are real changes or steps to move the Minister's Back Benchers. Certainly the Minister's brief did not provide the answers to those or related questions.

§ Mr. Albert McQuarrie (Aberdeenshire, East)
New clause 3(1) states: 1095 A district or islands council may, in accordance with this section, on any part of the seashore or in or on adjacent waters or the bed thereof, execute any works for the purpose of preserving, improving or restoring amenity. I do not know whether the clause places an obligation upon the district or islands council to restore an amenity which has fallen into a state of disrepair. The Cairnbull boathaven in my constituency has existed for many hundreds of years but has fallen into a state of disrepair. Will the new clause place an obligation upon the local authority to make funds available for the restoration of that amenity? It is surely right that a local authority with a local amenity that has existed for a considerable period should take upon itself the obligation of returning it to its original state, particularly in a fishing village such as Cairnbull which has grown up over the centuries with the fishing industry.
I hope that the Minister will say what liability will be placed upon a local authority if the new clause is accepted by the House.

§ Mr. John MacKay
May I answer some of the points that have been raised? I must say that, having suggested that I had not been clear, the hon. Member for Glasgow, Garscadden (Mr. Dewar) showed, as usual, that he at least had managed to see through the points raised by the new clauses and amendments before us.

§ Mr. Foulkes
That is more than the Under-Secretary did.

§ Mr. MacKay
The difference between amendment No. 148 and what was before us in Committee, where we had a long list of activities, is that the illustrations are no longer there, nor is the word "prohibiting". The use of vehicles and the exercise of sporting and recreational activities are regulated, not prohibited. It was said in Committee that that would remove fears that a local authority might decide tp prohibit them. There is a considerable difference, to which my hon. Friend the Member for Bute and North Ayrshire (Mr. Corrie) drew attention. Regulation implies that a local authority could provide, for example, that a part of a beach could be kept specifically for certain water sports while another part of the beach could be kept for swimming. That implication is built into the amendments that were made in another place. Therefore, one of the main changes is that, whereas originally we had prohibition in some places, here we have regulation.

§ Mr. Dewar
We must not turn this into a Committee stage, but the Minister seems to be digging a slight hole for himself. Clause 122 states that the byelaws may regulate or prohibit any trade or business on the seashore and the erection, the placement or use on the seashore of any booth, tent, shed, hut, stand, platform or stall, but when it comes to horses, ponies or sports they are merely regulated. Therefore, the power to prohibit was not there. He is offering a non-existent concession if he says that we have taken out prohibition as regards sports because it was never in clause 122 anyway.

§ Mr. MacKay
That is true, but if the hon. Gentleman looks at clause 122(b) he will see that prohibition was included too and that that could have been applied to various sporting activities which we are talking about, which do occasionally require various erections on the 1096 beach. Subparagraph (a) includes regulation and prohibition and the rights of any owner or lessee are protected by the need for the local authority to have their consent before they move to the byelaws.
The hon. Gentleman asked me about sporting interests. In amendment No. 150, subparagraph (c) explicitly says that the district or islands council should consult representatives of persons who engage in each sporting or recreational activity which may be affected by the byelaws.
My hon. Friend the Member for Aberdeenshire, East (Mr. McQuarrie) asked me if new clause 3 placed an obligation upon local authorities to do certain things and he mentioned a particular example in his constituency. It does not place an obligation on a local authority, but it gives a local authority powers to undertake the kind of work that he was talking about.
The hon. Member for Garscadden raised the question of public rights. If he looks at amendment No. 153 he will see that it expressly states: A district or islands council, when exercising their powers under this section, shall have regard to the need to protect and maintain any public rights under the guardianship of the Crown to use the foreshore, adjacent waters or, as the case may be, inland waters. I hope that that answers his question about the protection of public rights on the waters and shores with which we are concerned in this series of amendments.
5.45 pm
We had considerable debate in Committee about how to get this part of the Bill right. We have taken it away and come back with these new clauses and amendments which I feel sure meet the valid points that were put by my hon. Friends and by Labour Members. I hope that the House will accept them.