HC Deb 12 April 1983 vol 40 cc721-9 7.15 pm
Mr. Cook

I beg to move amendment No. 9, in page 5, line 7, at end insert— '(2) No lease shall be granted by the Crown Estate Commissioners on the foreshore or seabed without public advertisement of the application for such a lease. (3) No lease shall be granted by the Crown Estate Commissioners on the foreshore or seabed conferring private fishing or mooring rights in coastal waters where common fishing or mooring rights have been exercised by custom.'. The amendment relates to the Crown Estate Commissioners. It would qualify the right of the commissioners to grant leases for the seabed or coastal waters. When we debated this matter in Committee I did not, in my innocence, think that clause 5 which extends the period for which the Crown Estate Commissioners can grant a lease, would apply to their powers to grant leases on the seabed and in the coastal waters since that power is not specifically mentioned in the Crown Estate Act 1961. I was therefore rather surprised when the Minister advised the Committee, in terms which he has since repeated to me by letter, that clause 5 does apply to the rights of the Crown Estate Commissioners in relation to the seabed and coastal waters.

The letter that I received from the Minister since we debated this matter in Committee assured me that the commissioners are not contemplating granting 150-year leases on the seabed and coastal waters. I am relieved to hear it. Most of the leases that they have so far granted for the creation of fish farms are for the short term, with very few of them exceeding 10 years, although one runs for 60 years. Nevertheless, the awkward point remains that, as a result of the clause, it will now be theoretically possible and legally competent for the Crown Estate Commissioners to grant leases on the seabed and coastal waters for 150 years.

My anxiety on this point is heightened rather than relieved by the concluding page of the Minister's letter, in which he listed the one exception where it is possible that the Crown Estate Commissioners will take advantage of the greater period of lease to grant 150-year leases for the seabed and coastal waters. I should like to put on record the appropriate passage of the Minister's letter. It says: But they might wish to use their powers to grant such leases in respect of the seabed—for example where seabed is associated with the development of adjoining dry land, such as in the establishment of a marina with deep water berths or the construction of a deep water jetty where commercial considerations, including the magnitude of the capital investment, might make a lease for more than 99 years appropriate. As those who were present in Committee will recollect, the one specific example that I gave to show why I was anxious about the use of the powers of the Crown Estate Commissioners with regard to the seabed related to the development of a marina. As my hon. Friends will recall, the case involved the Scottish Development Agency and related to the development at Ballachulish where for some time the SDA had been attempting to promote a marina. The SDA invited tenders and had protracted negotiations with two competing commercial companies. It eventually decided to grant the lease of the land that it owned adjacent to the loch to the successful company negotiating for the contract, only to discover to its amazement, to the consternation of the company and to the severe annoyance of the local people that, while this process was going on, the Crown Estate Commissioners had conceded a lease on the adjacent seabed to the rival company.

That has left both the SDA and the successful company in a difficult and delicate position, as it is plainly awkward to develop the marina when it has rights only to the land and not to the seabed immediately adjacent to the foreshore. Given that example, I am uneasy that we are providing in clause 5 for the Crown Estate Commissioners, in similar secrecy, with similar lack of advertisement and similar lack of consultation with other involved interests, such as the SDA and the local community, to grant such a lease for up to 150 years.

Having reflected on the matter since the debate in Committee, I am persuaded that it would not be right to try to solve the problem by circumscribing the period of the lease, because that would not deal with the real problems at issue. It might be more appropriate to try to regulate the way in which the leases are granted, whether for 10 years, 99 years or the full 150 years. The amendment therefore proposes two qualifications to the commissioners' right to grant longer leases in relation to the seabed and coastal waters.

The first qualification would oblige the commissioners to advertise any application for a lease of this kind. That would remove at a stroke the difficulty that occurred at Ballachulish, as it is highly unlikely that the commissioners would have concluded the lease if the application had been advertised and the SDA had had the opportunity to call attention to its own interest in the site. It would also remove the difficulty highlighted by my hon. Friend the Member for Berwick and East Lothian (Mr. Home Robertson) on Second Reading. Fishermen in his area discovered that a licence—I accept that it was a licence rather than a lease—had been granted by the commissioners for exploration for minerals such as sand and other aggregates, which would in part involve exploration within the trawling grounds of local coastal fisheries. The point at issue is not that the licence was necessarily in error but that it was granted without advertisement or notification of local fisherman or local authority interests and was discovered by accident by the local community, although the community clearly had far more at stake than the commissioners in such a development.

I shall not repeat in detail the further illustration that I gave in Committee as many Members present today were members of the Standing Committee. It related to the commissioners' practice in registering leases for fish farms. As I understand it—I put this to the Committee at the beginning of March and it has not since been challenged or corrected by the commissioners—for a payment of £20 the commissioners will register an interest in an area of the seabed for anyone who can find his way to their office in Charlotte Square and express his interest in an appropriate chunk of the seabed.

Fish farming can make a useful contribution to employment in rural areas adjacent to the west coast of Scotland and there are many areas on that coast in which fish farms can appropriately be created. It is therefore desirable that that investment should be promoted in areas in which it is appropriate. It is equally desirable, however, that the creation through such a lease of a private right over a portion of the seabed should not be used to extinguish an existing public use.

The second qualification in the amendment would prohibit the granting of a private lease by the commissioners for parts of the seabed which by custom and practice have been used by the local community as areas for mooring or for practising fishing. The provision is required because on repeated occasions in recent years, since people began to register with the commissioners for fish farms, local communities have found that traditional fishing or mooring areas have been converted into private fish farms as a result of the acquisition of private leases from the commissioners.

In Committee I cited the celebrated case of the island of Tanera, off Achiltibuie, in which a mooring right enjoyed for centuries by the local community was given in lease by the commissioners to a private individual for the establishment of a salmon farm. Moreover, the local community discovered that the lease had been granted only when the successful applicant advertised for a manager for his fish farm. Until then, no one in the area had had any idea that a private right was to be created which would complicate their traditional fishing pattern and the way in which they gained their natural livelihood.

There is also the case of Mr. Macleod of Macharichil who five times in recent years has discovered that the commissioners have granted rights for private fish farming in areas which he fishes.

In cases of that kind the commissioners are not creating the opportunity for investment that will stimulate local employment. On the contrary, they are disrupting traditional patterns of employment and complicating and threatening traditional means of supporting the local economy. I find such behaviour thoroughly unreasonable and I am sure that most hon. Members would regard it as regrettable. My hon. Friend the Member for Berwick and East Lothian has considered the introduction of a ten-minute Bill to try to remedy the situation, but it would be far simpler if it could be remedied by amending the clause in this Bill relating to the commissioners powers to grant leases.

I have no doubt that my amendments are defective in some way, as these are arcane corners of the law. I have attempted to grapple with the rights of the commissioners which, as the Minister's letter fairly states, are not explicitly laid down in statute but rest on the generality of the commissioners' powers and on a number of legal cases, all of which took place around 1900. I have also attempted to express in legal terms difficult concepts not normally rendered in legal form. I hope, however, that the Minister will not rest his reply on the technical defects he has discovered, or which his officials have discovered for him, but will respond to the amendment in the spirit in which it is moved and address himself to its substance.

Having considered the matter since the Committee stage, I am convinced that there is a genuine problem and that it would be wrong for the House to extend the length of lease that the commissioners may grant as radically as the clause proposes without as a parallel measure providing some safeguards in relation to the granting of leases in this controversial area.

Mr. Wakeham

When I first saw the clause, with the proposal to increase the period of leases, I did not realise what a complicated and difficult area we should get into before the Bill reached its present stage, or indeed before it became law. I fully accept that, if it is complicated and difficult for me with the advice upon which I can call, it must be very much more so for the hon. Member for Edinburgh, Central (Mr. Cook) in opposition. I shall therefore make very little of any drafting defects and hope to give as full an answer as possible. I hope that my reply will show an ability to listen to the points made by the hon. Gentleman, perhaps not to give him complete satisfaction but to make it clear that the Government's mind is not entirely closed to some of the problems which he has described, and that we are still seeking a solution.

It may help the House if I begin by reminding those Members who were not party to the Standing Committee discussions that the clause would extend the powers of the Crown Estate Commissioners by allowing them to grant leases of up to 150 years in place of the present maximum of 99 years. That of course relates to market demand for urban developments. The present amendment relates to the problems of fishery rights in Scotland, and as such, although not to the people whom the hon. Gentleman mentioned, is peripheral to the purpose of clause 5. I hasten to add that that does not mean that it is not important in its own right.

7.30 pm

The problems go far beyond the concerns of the commissioners, or indeed of Scotland. Thus, the Bill is a wholly inappropriate vehicle to tackle these problems. Further, the problems are highly complex. This, I think, is why the hon. Gentleman and his hon. Friends have had such difficulty in framing amendments to the Bill, both in Committee and now. It is not that their ingenuity is lacking. Even if the conclusion were that statutory provision is needed, I have serious doubts about the feasibility of adapting the present Bill to achieving it. It would be technically complex, and to do anything meaningful and effective would almost certainly go beyond the scope of the Bill.

Perhaps I can best illustrate the problems by looking at the amendment in more detail. It falls into two parts. The first requires that before a foreshore or seabed lease is granted the application shall be advertised. The first thing to note is that, insofar as a lease relates to development—within the meaning of the Town and Country Planning Acts—by a tenant on the foreshore, the amendment is unnecessary because the position is effectively safeguarded by planning legislation.

I cannot go into specific details about the marina. I should have thought that almost certainly the proposed marina project would have been the subject of a planning application before it could have been achieved. The effective safeguard is the fact that the planning application would be necessary.

It should be noted that the amendment does not attempt to define "advertisement". Does it for example mean a notice in the London Gazette, or one pinned to a board on the foreshore? However, these are technical defects that could in principle be remedied.

But we need also to examine the purpose underlying the amendment. If it is simply to safeguard the position of existing public fishery and navigation rights, the amendment is unnecessary. Those rights are already protected by common law, and any lease that purported to encroach on those rights would have no such effect, and all leases of foreshore or seabed granted by the Crown Estate Commissioners are expressly made subject to those rights. If, however, the amendment is effectively an attempt to extend planning legislation by the back door, the Bill is not—indeed cannot be—the appropriate vehicle. Leaving aside all the complex procedural provisions that would be needed, such subject matter would be far outside the scope of the Bill.

What is more, this should not, ideally, be a matter for the commissioners. It is not their task to assess the appropriateness of any particular proposal in the light of all the interests that might be affected. If a mechanism were set up, I have no doubt that the commissioners would undertake to accept the outcome—as they have, for example, with the proposals to dredge for marine aggregates on the seabed.

I can well understand why hon. Gentlemen opposite wish to pursue this issue. It has been cogently argued in the speeches today and in committee. I and the commissioners certainly accept that there is a real problem. What I cannot offer at present is a clear solution. Any solution that involved an extension of planning law would of course go far beyond the scope of the present Bill. In the case of dredging, to which I have referred, there is an extra-statutory consultation procedure which seems to be working well. However, the number of cases that could arise in respect of fish farming leases would be very much greater than for dredging, and it may be that such a procedure would simply not work.

What I can undertake is to draw what has been said in the debate to the attention of my right hon. Friends who have responsibility for these matters. I very much hope that they will be able to devise a workable arrangement, but I can make no promises. There are practical difficulties to be considered—not least whether central Government should become involved in matters that are properly of local concern. What I can say is that if it does not prove possible to devise anything better, the Crown Estate Commissioners, who are genuinely concerned about the problems, will do their best to alleviate them. Given the complexities, it is far from clear what that might involve, but I can undertake that Parliament will be informed of the outcome, though it may not be possible to do that during the passage of the Bill.

The second part of the amendment is intended to ensure that the Crown Estate Commissioners cannot grant leases that would impinge upon common fishing or mooring rights by granting private fishing or mooring rights. That is based on a misunderstanding, because the problem to which it is addressed cannot exist. In the case of fishing, this is because subjects of the Crown have a right to fish in tidal waters—except to fish for salmon in Scotland. Since the time of Henry II the Crown has not been able to grant private fishing rights in the tidal waters of England and Wales because Magna Carta made such grants illegal. Had the hon. Gentleman represented an English or Welsh constituency, he could have rested secure in the knowledge that his constituents' fishing rights were protected by Magna Carta. Unfortunately, Magna Carta has no authority north of the border, but I can assure him that Scottish subjects now have similar rights to their English and Welsh counterparts, and that the only private fishing rights that the commissioners can grant are for salmon. They have from time immemorial been let out on nine-year leases in a rotating cycle annually by way of public tender. Thus, the commissioners cannot grant a lease conferring private fishing rights in coastal waters.

In the case of mooring rights, it works the other way round. Common law mooring rights do not exist. The only exception to this is that in England—but not in Scotland—common law mooring rights could in theory be established by adverse possession. Where such legal rights existed, any grant by the commissioners would be subject to them. For those reasons, this part of the amendment is unnecessary.

I hope that, in the light of what I have said and undertaken to him, the hon. Gentleman will withdraw the amendment.

Mr. Cook

In the light of the antiquity of the legal provisions that the Minister has discovered, I would be a rash man to persevere against the brief with which he has been presented.

The Minister said that, when he first read the clause, he did not anticipate the legal byways and the complexity of the thickets into which he would be drawn. Nor did I, I assure him. I am impressed that we have found a vibrant echo of Magna Carta resounding down the years. With the characteristic arrogance of Scottish education, I was brought up to believe that the Scottish legal position at the time of the Magna Carta was infinitely superior to the rights of Magna Carta and that habeas corpus was already in existence for the Scottish gentlefolk concerned. The point was glossed over by history teachers that Magna Carta tidied up fishing in coastal waters for England more neatly than we have ever achieved in Scotland.

I shall reply to some of the points of substance that the Minister made. I take his point about planning constraints restraining the successful company that obtained the lease for the seabed at Ballachulish from proceeding with the marina. It cannot use the lease to any advantage to itself without planning permission. The difficulty that was created at Ballachulish was that the same applied to the other company that was successful in getting the lease on the foreshore. A stalemate was then created by the creation of a private right for the company that had had the wit to obtain the lease on the seabed. Although planning controls are effective in stopping and inhibiting development, they are limited and ineffectual in promoting development.

I note what the Minister said about common law protecting traditional fishing rights where a private right is created. That is fresh news to me and will come as fresh news to some of those who believed that their traditional fishing rights had been disrupted and do not appear to be aware of that remedy at law. I shall consider that point with them.

Having made those points in response to the issues of substance that the Minister mentioned, I recognise that he has come a long way to answer the anxiety that I have expressed on this occasion and in Committee. I am pleased that the Minister has recognised that there is a real problem. I was encouraged when he hinted that legislation might be desirable, although perhaps not in the context of this Bill. I have no wish to try to tidy up planning legislation through a miscellaneous financial provisions Bill or even the Finance Bill which we shall shortly consider in Committee. Perhaps these issues are better resolved by other legislation or other administrative action.

I am grateful to the Minister for undertaking to consult the relevant Departments. Perhaps I can press him to ask them to communicate with me so that I can consider the outcome of the review with my hon. Friends. I am gratified that our debates have set in motion such a review. I hope that it comes to fruition in the anticipation that it may result in a less technically defective solution than the one I have proposed. I am happy to seek leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, signified.]

7.40 pm
Mr. Wakeham

I beg to move, That the Bill be now read the Third time.

When I moved the Second Reading of the Bill I commended it to the House, not as a sweeping matter of principle, but as a collection of sound administrative measures to tidy up or regularise existing arrangements. I do so again now.

During the passage of the Bill I have been pleased that a number of its clauses, at least, have been welcomed by the House.

I shall mention clause 3 first. Its object, as the House will remember, is to write off debts of £13.4 million owed by Zimbabwe to the Consolidated Fund.

The House has also supported the measure to widen the scope of Treasury guarantees, and clause 6, which gives the Treasury power to redeem a number of annuities which have been a charge on public funds under legislation dating from the last century.

Perhaps most warmly of all, the House has welcomed clause 7 which provides increased flexibility for local authority councillors when they make the choice between receiving attendance allowance or financial loss allowance for performing the approved duties of their councils.

I shall now deal with those parts of the Bill on which there was considerable discussion both in Committee and on Report.

Both sides of the House have welcomed the general purpose of clause 1 in giving greater financial and administrative freedom to the Development Commission. Most of the concerns expressed have been to ensure that the new independence is real and can work for the good of rural areas. If we have disagreed with suggestions for amendment, it has been for practical reasons.

Both on Second Reading and in Committee there was considerable discussion of clause 2, but I hope that it is fair to say that a general welcome was given to the clause, which in essence is no more than a desirable piece of tidying up. It provides for the first time a specific statutory authority for the Secretary of State for Industry to make grants, out of money voted by Parliament, to bodies representing the English regions for promotional purposes.

Clause 5 has led to a good deal of fascinating technical debate. Perhaps it has not always been central to the main purpose of the clause, which is to enable the Crown Estate Commissioners to comply with their statutory duty to obtain the best return from the estate, in the light of current market circumstances by enabling them to grant longer leases.

This, then, is the Bill that we have before us, and I commend it to the House.

7.43 pm
Mr. Cook

Those hon. Members who have taken part on Second Reading, in Committee and on Report—it must be said that they are a small and tightly-knit group—are entitled to view this Third Reading with satisfaction, though perhaps not with relief. We have had some useful debates that have provided opportunities for hon. Members to raise issues that would not normally have been raised. Nevertheless, as the Minister has said, the issues have been aired with purpose and in a constructive and positive spirit.

I said at the outset that the Opposition took no exception to any of the Bill's provisions. We then thought that, in some of the clauses, we were extinguishing rights that went back to the 18th century and that there was some legal number in the Bill as it was presented on Second Reading. We did not discern then, as we learnt later in our proceedings, that, far from dealing with the 18th century, we were dealing with Magna Carta and the 12th century.

We object to none of the Bill and there is some of it which we warmly welcome. I echo what the Minister said about clause 7, which has brought desirable and slightly overdue relief to those councillors who find themselves unemployed halfway through a financial year. As that clause reminds us, some of the Bill is necessary only because of the economic recession in which the nation finds itself. Clause 7 would not be so essential if it were not for the growing numbers of councillors who, like the people they represent, find themselves out of work.

Clause 2 makes statutory, as opposed to administrative, provision for the payment of grant to regional development organisations. As we said on Second Reading, and repeated in Committee, despite many of the debates that we have had about its application, the general principle of clause 2 is welcome. We are happy that the development organisations of the four regions of England will have a clear and open statutory basis for grant to be paid to them to promote inward investment. Nevertheless, we are entitled to conclude, as we began on Second Reading, pointing to the context in which that provision is made.

There are now far more severe and rigorous regional problems than there have ever been since the second world war. When we consider that clause 2 provides total grant of less than £2 million for those four regional development organisations in any one year, we must put that in the context of the White Paper that was published at much the same time as the Bill, which provided for a cut in regional development expenditure from £600 million to £474 million. That represents a cut of 25 per cent. in one year. That savage and brutal cut which the Government have imposed on regional development sets a stark and sombre background against which we must welcome as a modest and timid step towards regional development the much more limited provision in clause 2.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

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