HL Deb 13 May 1875 vol 224 cc544-56

Order of the Day for the Second Reading, read.

Moved, "That the Bill be now read 2a"—(The Marquess of Salisbury.)

THE EARL OF MORLEY

said, that, as that measure was of very considerable importance, he ventured to think it deserved to receive careful consideration before it became the law of the land. The time had passed when the necessity for legislation on this subject was disputed; but the subject was one of great complexity and great difficulty, and the Bill before their Lordships would affect a very largo number of manufactories, and consequently very large manufacturing and commercial interests. Therefore, although he did not underrate the importance of improving the state of our rivers, yet their Lordships must not lose sight of the fact that any legislation would affect most materially a vast amount of industry. The Bill had been only a very short time before the country. It had only been distributed to their Lordships on Saturday last. He did not ask for a postponement of the second reading; but he would suggest that those who would be so much affected by the enactments of the Bill, should have an opportunity of expressing their opinions before the Committee was taken. This Bill differed very much from other Bills that had been laid before Parliament. In the Bill of 1873 no fewer than 10 different tests were set out, and that Bill would have enacted that no liquid which did not satisfy those tests should be allowed to flow into any river. The noble Marquess who had charge of the charge of the Bill now before their Lord-ships (the Marquess of Salisbury) had shown by experiments made at Hatfield one rainy day last year, that those tests were too delicate and too unwieldy to be embodied in a Bill. This Bill went to the other extreme, and proposed to deal with the question in an heroic fashion. It dispensed altogether with chemical tests, and made the common sense of the County Court Judge the only test as to what was "filthy, noxious, or polluting." He spoke with all respect of the County Court Judges, but, originally, they were legal functionaries appointed to preside over Courts for the recovery of small debts. No doubt they had a fair share of common sense; but common sense was not such a common commodity as it was generally supposed to be. Practically, this Bill would give the County Court Judges control over manufacturing interests of the greatest importance; and, without any definition in the Bill to guide them, manufacturers might be put to a very large outlay by order of a County Court Judge. He ventured to think there would be a great deal of difference in the rulings of County Court Judges as to what would constitute an offence under the Bill, and he would point out that there was no appeal from his decision. Indeed, he would go further, and say that even in their Lordships' House there would be found various opinions as to what was pollution to a stream. In the Report of Dr. Franklin and Mr. Morton it was said— It is of the first importance, in carrying out any legislative enactment in connection with river pollution, that all river basins he uniformly dealt with. This has again and again been urged upon us by representatives of the staple manufacturers on the Mersey and Ribble basins. They state, and we think with reason, that it would he unfair, for example, to the calico printers of Lancashire to have a law stringently enforced against them, while in another river basin their competitors in trade were being treated with comparative leniency and indulgence. In their evidence before the Committee of their Lordships' House scientific witnesses showed that they were not agreed on the point. Manufacturers did not know how to act; and if the County Court Judge called in the aid of experts their Lordships knew how conflicting were likely to be the opinions he would hear stated. He did not mean to assert that scientific witnesses were unduly biased on the side for which they appeared; but all of their Lordships who had served on Committees knew that the evidence of such witnesses when examined on the one side and the other, was usually to leave the Committee in the position in which it stood when the inquiry commenced, and to put out of its power any attempt to reconcile the conflicting scientific opinions. The Report of the Committee of their Lordships' House stated— Two sets of experts usually come to opposite conclusions, and, instead of helping the tribunal before whom they appear to form a sound judgment, they only increase its embarrassment, and the general result is either that the Court, rejecting altogether the conflicting scientific evidence, arrives at what it considers a common-sense conclusion, or by some ingenious and fallacious process contrives to twist the discordant statements sufficiently into harmony to afford some justification for conclusions thus apparently based upon them. He had said so much, not by way of opposition to the second reading of the Bill, but to point out the necessity of giving full time for a consideration of the Bill and an examination of the proposal to leave so much to the County Court Judge.

THE DUKE OF BUCCLEUCH

said, that the object of the Bill was a very good one, but he could not conceal from himself that there would be very great difficulty in carrying it into effect. He had great experience with respect to the pollution of the rivers in Scotland, but he thought it would be very objectionable, if, merely because the manufacturers had been in the habit of polluting the rivers for upwards of 12 years, they should obtain the prescriptive right to continue to do so, merely by showing that they had taken some steps to prevent such pollution, and that these were the best means which they could adopt for the purpose. In Scotland it had been ruled that however long a person had possessed a manufactory, and had polluted the river, it gave him no prescriptive right to continue to do so. He did not think that the provisions of the measure generally were stringent enough, because there was no one appointed to put the law in motion. He thought it would be better if they appointed Inspectors—something in the character of Inspectors of Nuisances—who should examine the water, and on finding it polluted have the power of bringing the manufacturer before the County Court Judge—in other words, who should fulfil the office of public prosecutor. The rivers in Scotland were polluted to an enormous extent, and for a considerable distance from many towns the water of the rivers was altogether unfit for domestic purposes. In some parts of the Tweed it appeared bright and sparkling enough, and emitted no- thing whatever offensive to the smell, but nevertheless, when taken up, it was found to be as black as any of their Lordships' coats. Such a state of things ought never to be continued, and he was therefore desirous that the Bill should be amended in the sense of making it more stringent.

THE MARQUESS OF LANSDOWNE

understood that the main objection to the state of the law as it now stood was its uncertainty, and the indefiniteness of the offence it was intended to punish. He would like to consider the provisions of the Bill from that point of view, because he thought that if they could pass an Act making clear what constituted the offence, that Act would be accepted by manufacturers and by the corporations of towns with great readiness; but if it failed in that point, it would encounter great resistance. Now, the Bill of Her Majesty's Government differed in several respects from any previous attempts in this direction. There was, in the first place, the constitution of the County Court Judge as the tribunal before whom these cases were to be tried. With regard to this point, his noble Friend (the Earl of Morley) had well pointed out the dangers which were likely to arise from leaving so much to the judgment of the County Court Judge. Then there was the substitution of the noble Marquess' common-sense test for the chemical tests upon which previous legislation had relied. He was bound to say that, whilst something was to be said against the chemical tests, a good deal was also to be said against anything which could be put in their place. It was quite true that chemical tests, if embodied in a Bill, would be likely to break down in some cases; but scientific men were almost unanimously of opinion that some kind of test should be adopted, and it was the opinion of almost all the men of science whose opinions had been laid before the River Pollution Commission that tests were practicable. Professor Frankland stated before the House of Lords' Committee that— There is actually no definite line of demarcation separating the purest spring water from the filthiest sewage; it, therefore, appears obvious that for the purposes of efficient legislation such a line, though an arbitrary one, must be drawn between waters which were to be deemed polluting and inadmissible into streams, and such as should be considered innocuous, and therefore admissible into running water; it would thus become easy on the one hand to convict careless or reckless corporations or manufacturers, and on the other, which is equally important, to protect them from the incessant and uncertain litigation that must ensue if no definition of polluting liquids were adopted; hence arose the necessity for the standards of pollution suggested by the Commissioners: the standards of pollution represent, in a concentrated form, the experience of the present Rivers Pollution Commission, acquired by the incessant investigation for five years of the chief manufacturing purposes carried on in this country. He had read a very important statement to the same effect by Mr. J. Chalmers Morton— Without tests it was impossible that justice should invariably be done, for these standards were as necessary for the protection of the innocent as for the easy conviction of the guilty. At present, if you go before a Court with your complaint in general terms of the nuisance by which you are aggrieved you are certain to be met by evidence, also in general terms, that the thing is not so bad as you declared it, or that there is really no nuisance at all; or that if there be any discomfort it is as nothing compared with the tenfold injury which would be inflicted on one hundredfold the number of sufferers if any injunction should be issued; and what was a distracted jury, or even a clear-sighted Judge, to do for either complainant or defendant in the face of contradictory evidence, both lay and scientific, so long as both are allowed the resources of the English language with which to attack or defend? He could not but regard that testimony as of great importance. As showing the difficulties which would have to be encountered in the working of the Bill, he would direct attention to the 3rd clause, which stated that— Every person who causes to fall or flow, or knowingly permits to fall or flow or to be carried into any stream any solid or liquid sewage matter, shall be deemed to commit an offence against this Act. Now, it would be impossible for the manager of a sewage farm—and this Bill appeared to contemplate sewage farms as the obvious remedy for the existing condition of things—to avoid doing what that clause prohibited. Again, by Clauses 4 and 5 anyone who, after the passing of this Bill, should knowingly cause or permit to fall or flow any filthy, noxious, poisonous, or polluting liquid proceeding from any factory or manufacturing process, or from any mine, into any stream should be deemed to commit an offence against the Act. A person who had been acting in that way for a period of less than 12 years preceding the passing of the Act was to be allowed two years after the passing of the Act, or such further period as the Local Government Board might allow, before he could be deemed to have committed such offence, and then he was to be subject to all the pains and penalties of the Bill; but a person who for a period of 12 years or more preceding the passing of the Act had been acting in that way was not at any time to be deemed to commit an offence against the Act, if he proved that he had used, and continued to use, the best practicable and available means to detain or render harmless the pollution. Now, if a man had taken and was continuing to take the best practicable and available means of purifying the offensive liquid, he could not see what difference two, five, ten, or twelve years' usage should make in the case. The proposal in the Bill appeared to him to be "prescription run mad," and he ventured to hope that the noble Marquess would reconsider his proposal, at all events in this respect. He had heard with great satisfaction from the noble Marquess (the Marquess of Salisbury) that the drainage of a district was not to be a matter for the local authorities; but unless the local authority took action under the provisions of the Bill, he should like to know who else was likely to do so? In fact, what it would come to was this—that the duty of giving effect to this Bill would fall upon the medical officer of each district. The duties of the County Court Judge had been multiplied by recent legislation, but the case of the County Court Judge was nothing to that of the sanitary officer, upon whom every fresh Act of Parliament cast new responsibilities. As their Lordships knew, that officer was in many instances the doctor in a small country town. Often he was not very liberally paid for what he did as Officer of Health, and in many instances—as shown by a Return which he held in his hand—he was allowed private practice; and therefore did not give his whole time to the duties of his office. He could draw only one conclusion from the difficulties which presented themselves, and it was this—that in order to successfully grapple with the subject, a wider and more comprehensive scheme of local government must necessarily be established, and he regretted that before bringing in this measure the Government had not addressed themselves to reforming the local government of the country.

LORD ABERDARE

said, he was aware that the subject with which the Government proposed to deal by this Bill was a most difficult one, but he thought the Bill failed to meet it. He concurred with his noble Friend who had just spoken (the Marquess of Lansdowne) in thinking there was no good reason for the prescriptive advantage proposed to be given to those manufacturers who had been polluting rivers for 12 years. He was of opinion that the pollution of rivers could not be effectively dealt with unless in other great manufacturing towns the course taken in the metropolis were adopted. He referred to the construction of a great central sewer to carry off the drainage of a large district to one appointed place. He could hardly think that the point had escaped the noble Marquess; but he did not observe that sufficient provision for the purpose was made in the Bill. He concurred with his noble Friend (the Earl of Morley) who had pointed out the embarrassment likely to arise from conflicting decisions of County Court Judges; and it appeared to him that competent persons to supervise districts should be appointed by the Government in order to secure uniformity in the working of the measure.

THE MARQUESS OF SALISBURY

said, he did not object to the criticisms on the Bill, nor was he at all surprised at them; but he would ask their Lordships to consider what they had to do—what was the problem they had to solve. On the one side, the rivers had been so absolutely polluted that the rights of the riparian owners had been virtually ousted and destroyed. The owners lower down a stream had had from all time the right to use the water for themselves and their animals—the right to have it in a state in which it could be used. Consequently, they had the right that it should not be made noxious by those who dwelt higher up. On the other hand, the owners of great pecuniary interests—extensive manufacturers employing large numbers of people and carrying on manufactories essential to the prosperity of the country—had set up their works all along those streams. These were vast interests which neither our sense of justice nor our Parliamentary power would enable us to disregard. But that was not the only difficulty. It was to be borne in mind that Parliament took a bold step some years ago in the matter of drainage. Without inquiring too curiously what would be the effect to individual interests, it directed that the work should be done—they imposed on the local authorities the duty of draining towns and other places inhabited by large communities. The Government therefore had to deal with very complicated local governments and with people jealous of their rights and interests. What was to be done in this dilemma was a matter which could only be settled by arrangement. Undoubtedly there were difficulties which must be encountered by those who undertook to legislate on the subject of the Pollution of Rivers—they were difficulties inseparable from the constitution of the country. He could not concur with those noble Lords who had said that they saw no reason for the distinction which the Bill made between persons who had been polluting a stream for 12 years and those who had commenced to do so within a more recent period. If a man came to establish himself on the land of another person, he was a wrong doer, and that other person could at once drive him out; but if the man had been 12 years established on the land, that other person could not drive him out. He knew there was no legal parallel between that case and the case provided for in the Bill, but there was a moral parallel between them. He thought that if manufacturers had been allowed to go on pursuing a certain process for many years, and Parliament suddenly interfered to solve a problem, that solution ought to be sought for with some consideration for those manufacturers. As to what had been said about the local authorities being left to set the Bill in motion, he thought the noble Duke (the Duke of Buccleuch) had not a clear apprehension of the proposal—he seemed to think that only the local authorities had power to set the Act in motion. No doubt had that been so it would have been a defect in the Bill; but he would point out that the Local Government Board was charged with the performance of the duty in case the local authorities had failed to perform it; so that a responsible Minister of the Government would have to see that effect was given to the provisions of the Bill. He quite agreed with what the noble Lord (Lord Aberdare) had said as to the importance of bringing the Bill to bear on a large area; and that, he apprehended, was the object of providing for Conservancy Boards in the way proposed by the Bill. There was, however, one point in respect of which he admitted the Bill was defective. As the Bill stood it did not confer sufficient power on Conservancy Boards to construct large drains in the centres of districts. He thought they could do this only by means of Private Bills, and when this Bill went down to the Commons it might be expedient to provide means for the Conservancy Boards to promote Private Bills for that purpose. As to the objections urged against the jurisdiction proposed to be given to the County Court Judges, in the first place, the Judges of the Superior Courts were already overworked. The County Court Judge was at once the Judge nearest to the locality and the Judge with the most time. To say that questions such as would arise under this Bill must be dealt with by Courts of great authority and not by the County Courts was to say that they must be brought to London—a proceeding which would be ruinous to the suitor and ruinous to the Bill itself. As to tests, if satisfactory tests could be embodied in the Bill, that, no doubt, would be a convenient and satisfactory arrangement; but he did not think they could be. The test of colour would be erroneous; the test of suspended matter would be futile, because it would always be found in an agricultural district after a heavy fall of rain; and as to the test of organic nitrogen, while there was still a dispute about it on a matter of scientific fact it would be going rather far to embody it in the Bill. But he did not think there would be that difficulty in coming to a decision which some noble Lords seemed to apprehend. They were only now dealing with the pollution of water; but it was a long time back since they commenced to deal with the pollution of air, and people who had noses had proved to be well able, by the old and well-known process, to decide what was a stink. In the same way he believed the County Court Judge would be able to decide, by common sense, what was the pollution of a river. It was for the persons who were affected by the pollution to say whether the water was pure or not, and for the Court to decide and say what was to be done. We should not be able to do altogether without experts, but he hoped we should have as little as possible to do with them. Their opinions were weakened by the very accuracy and minuteness of their scientific knowledge. He did not pretend that a perfect remedy would be provided by this Bill. It was a tentative effort. He believed the Government were going as far as they could go in the matter, and that the Bill would effect a marked improvement in respect of the many evils complained of. If that improvement should prove not to be sufficient, it would be competent to Parliament, by means of future legislation, to again take the grievance in hand and have recourse to further means to remove it. It was, in his judgment, the wiser course for the Government to move by slow steps, and not attempt to go too far.

LORD SELBORNE

said, that the discussion their Lordships had heard that evening showed the truth of the observations of his noble Friend (the Earl of Morley), that this was a Bill which ought not to be passed before time had been given to the great interests which it would affect to carefully consider its provisions. He had himself great difficulty in understanding what would be the operation of the Bill, and that difficulty had not been diminished—on the contrary, it had been increased—by the speech of his noble Friend who had just sat down (the Marquess of Salisbury). The noble Marquess did not appear to understand, as well as he might have been expected to do, some parts of his own Bill; because he first argued that prescriptive rights were not given to certain persons by Clauses 4 and 5 of the Bill, and then he went on to say that, of course, it was necessary to show some respect for vested interests. The real difficulty which presented itself in connection with the words of those clauses was to say whether they did save any interests; and if they did, whether they did not save a great deal more than his noble Friend intended them to save. In the first place, even the person who had caused pollution for 12 years or more was required to show that he had used, and continued to use, the best procurable and available means to "detain or render harmless" the polluting liquid, so that it should not flow into the stream. If these words were to be read as requiring him to "detain" by the best available means, unless there were some available means of rendering the liquid harmless, this was not a matter of science; everybody could detain a liquid, in the sense of not letting it run into a stream. But, in that case, there was no greater tenderness shown to those who had polluted for 12 years, than to those who might only have began their pollution yesterday. The distinction was illusory; and every man who could not purify the liquid must detain it, though at the expense, possibly, of the destruction of his business. On the other hand, if a man who had for 12 years polluted a stream, was meant to be at liberty to go on doing so, if he could show that there were no better means available than those which he was actually using, either to purify or to detain it, consistently with carrying on his business, this would operate in a direction exactly the contrary of that desired by the noble Duke opposite. He (Lord Selborne) did not see how it would be possible to get rid of scientific tests and the evidence of experts when the question was whether the best and most practical means had been used to render the sewage harmless. The hearing of such cases in the County Courts would be very likely to cause a serious derangement of their business, for some pollution cases in which he had been engaged had lasted many days, and even weeks. There seemed to be undue latitude in the definition of "streams"—for if any watercourse was to be deemed a stream within the meaning of the Act, it would go much further than could be intended, and in particular it would interfere with mining operations, which could not be carried on without using watercourses. Under any circumstances it was necessary that time should be allowed for the consideration of all these details throughout the country.

THE LORD CHANCELLOR

said, the criticism of the noble and learned Lord related to the merest points of detail. What was meant by "detain or render harmless" was, of course, that one or two alternatives must be adopted—namely, either polluting matter must be kept out of a stream, or it must be rendered harmless before it was put in. If the definition of "stream" included an "artificial watercourse," that could be remedied in Committee. His noble and learned Friend, also, had spoken of the 4th and 5th clauses, as "Saving clauses" as though they had created vested interests; but he, (the Lord Chancellor), contended that anyone could argue on vested interests by having polluted a stream for 12 years, and he denied that the Bill set up any such prescription. At present an offender enjoyed immunity, because individuals had either not the money or the direct personal interest to resort to litigation; but that was the only kind of immunity which the Bill recognized; but this Bill provided a cheap and speedy process of law and enabled persons interested to stop a nuisance at once. As the main object of the Bill was to invest an authority with power to restrain the pollution of rivers, we must in this as in other cases face the difficulty of selecting a tribunal. Doubtless there had been cases in which great expense had been incurred in raising questions which experts could do little more than quarrel about; but if the power conferred by the Bill was to be denied to subordinate Courts like the County Courts, and was to be given only to Judges of the Superior Courts, the practical effect would be that the Bill could not be put into operation on account of the difficulty and expense. There would be a large number of small cases which would be much better disposed of on the spot, on a view of the place by the County Court Judge, than they would be on affidavits supported by argument before a Superior Court in London. Their Lordships might very well consider whether in all cases the decision of the County Court Judge was to be final; but it would be premature to discuss that now. No doubt the Bill had been a short time before the public, but the discussion on the second reading in that House would call public attention to it.

LORD SELBORNE

wished to say, in explanation, that he did not mean to affirm that any man could have a vested interest in the commission of a public nuisance. What he said was, that the Bill, as it stood, either created such vested interests, or that, if it did not do so and was not intended to do so, its terms were illusory.

THE DUKE OF SOMERSET

said, that the noble Marquess had stated that there were various ways in which water might be purified, or pollution prevented. So, no doubt, there were. They had had long discussions in that House about patents, of which there were 45,000 in this country. The moment the Act came in force the holders of some of these patents would step in, each claiming that he owned a patent for the only means by which pollution could be prevented, and in that way the work of purification would be a heavy tax on every manufacturer. Another result of its operation would be, that a manufacturer who could easily avoid pollution—say by possessing a site suitable for a subsidence pond—would get the Act enforced against a rival in trade who, for want of adjoining land, could not solve the difficulty so easily. No doubt, there would be many cases of this kind. It was 10 years since the first Commission on this subject was appointed, and the conclusion at which he had arrived, after reading much of the evidence, was that our rivers were hopelessly polluted, and that we never could make their water potable. The foul matters encumbering streams might be got rid of, but the notion of their supplying water fit to drink must be altogether put aside. Towns must be supplied with pure water for drinking purposes in some other way, and the sooner that was generally admitted the better it would be for their large towns.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday the 3rd of June next.