Lords Sitting of 10 March 1881

MINUTES.
PUBLIC BILL—Committee Rivers Conservancy and Floods Prevention (39–44).
COURT OF SESSION (SCOTLAND) BILL.

  QUESTION. OBSERVATIONS.
  THE EARL OF ROSEBERY: My Lords, I wish to put a Question to the noble and learned Lord on the Woolsack, of which I have given him private Notice. It is with regard to the Court of Session
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  (Scotland) Bill; and it is to ask him, Whether he will be prepared to give your Lordships an opportunity for discussing the principles of the Bill? The circumstances of the case, as I understand them, are these. The noble Lord introduced the Bill last Friday; but it was printed and circulated last Monday, and read a second time last Tuesday. Well, that strikes me as a somewhat precipitate course of action with regard to a Bill as to which public opinion is by no means unanimous. That it should be read a second time the day after it is printed does seem to me, perhaps, rather a more speedy course than might be recommended. Since the Bill has been printed, the Faculty of Advocates have made a protest almost unanimously against its provisions; and without expressing my own opinion—which would be worth nothing—as to the value of that protest, I wish to ask the noble and learned Lord, Whether, on going into Committee, or at some other time, he will make a statement which will enable your Lordships to discuss the principle of the Bill?
  THE LORD CHANCELLOR: My Lords, in reply to the noble Earl, I have to say that not only am I fully prepared to make a statement, and give your Lordships an opportunity of discussing the measure, but it is my duty to do it. I certainly should not have put down the Bill for second reading on such an early day had it not been for the conviction I had—after communication with some eminent persons who I had reason to believe might be taken as expressing a trustworthy opinion on the subject—that the general principles of the Bill, at all events, were likely to be accepted, and that any discussions which might arise would be as to detail rather than principle. I should have liked to make a statement on the second reading, and I intended to do so; but the Bill stood last on the Orders for the Day, and by the time it was reached there were scarcely any noble Lords in the House to whom I could address that statement. It now stands for Committee on Tuesday. As the noble Earl has mentioned the subject, I have to say that I should like to make one explanation. The question, if this Bill passes, whether advantage should be taken of the opportunity of increasing the salaries of the Judges of the Court of Session,

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  has been under the consideration of the Government, who have not yet arrived at any conclusion upon that subject. It is one for the House of Commons, and not for your Lordships; and no doubt the Government will be prepared to state the view which they may take of it at the proper time, in the event of this measure reaching the House of Commons.

RIVERS CONSERVANCY AND FLOODS PREVENTION BILL.—(No. 39.)
(The Lord President.)
RIVERS CONSERVANCY AND FLOODS PREVENTION BILL.—(No. 39.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  Moved, "That the House do now resolve itself into Committee upon the said Bill."—(The Lord President.)
  THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)desired to know, before the House went into Committee, why uplands were to be taxed, while obstructions in the river, such as weirs, dams, and other things were to be left out of consideration? If the reason for taxing uplands was that there were sometimes drainage works under them, there could be no excuse for taxing those lands under which there were no such works. Where arterial and other drainage was undertaken for the benefit of particular properties, he could not understand why it should be liable to public taxation.
  Motion agreed to; House in Committee accordingly.
  Clauses 1 to 3, inclusive, agreed to, with an Amendment.
  Clause 4 (Duty of the Local Government Board).
  THE DUKE OF SOMERSETsaid, that where there were no drainage works on the uplands, those lauds ought to be altogether excluded from the operation of the Bill. As the Bill stood, the downs of Sussex might be taxed, and the mountains of Wales might be taxed, because there were floods in the Severn. He wished to know whether, under the Bill as proposed to be amended, the Local Government Board would have power to exclude certain districts altogether?
  EARL SPENCER, in reply to the noble Earl the Chairman of Com-
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  mittees, said, that uplands had been included in a Bill which his noble Friend opposite (the Duke of Richmond and Gordon) introduced on a former occasion, and the principle was adopted by their Lordships. There could be no doubt that uplands were in a different position from other lands. Scientific drainage caused a great addition to the water which various streams carried off; and there were works not of an agricultural nature which had the same effect. In many cases, on uplands, and certainly on midlands, there were places where large numbers of houses had been erected, and the water, instead of sinking gradually into the soil, collected on roofs, pavements, &c., and was shot down into the beds of the rivers. He could refer to instances where water was brought to large towns from long distances, and introduced into watersheds with which it had no natural connection whatever. In reply to the Question of the noble Duke (the Duke of Somerset), he begged to state that power was most distinctly given to the Local Government Board, and the Inspector who was sent down under the Act of Parliament, to exclude whole districts from the operation of the Bill. He would move the introduction of words in the clause which would make it the duty of the Inspector to inquire whether any special works had been erected on the land, so that the Local Government Board might decide whether, upon the Inspector's report, any lands should be wholly or partially excluded. Other words would be introduced later on, and there were two subsections which bore on this subject. With regard to the hills of Wales, to which reference had been made by the noble Duke, the question would be left to the Local Government Board. It was thought better to leave it to their discretion than to tie them down to mere words, which might, in some cases, have the effect of bringing the operation of the Bill to a deadlock. He proposed the Amendment to which he had referred mainly to meet the contention of his noble Friend (Lord Carrington), that on the report of the Inspector it should be imperative upon the Local Government Board to exempt certain lands. He further proposed, in case any protection was omitted as to lands of this class under the Provisional

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  Orders, to add words in Clause 22, giving power to make it imperative on the Conservancy Board to exempt such lands, and, in case their decision was unsatisfactory, giving a right of appeal to the Local Government Board. The noble Earl concluded by moving, in page 2, line 9, after ("Act") insert ("and what works, if any, have been executed for the protection of any such lowlands or midlands from floods"); in page 3, line 7, after ("rating") insert ("or partial exemption from rating"), and after ("of") insert ("all or any of the lands in.")
  THE MARQUESS OF LANSDOWNEsaid, he thought the explanation of the Lord President was satisfactory. He should like to know, however, on what principle lands were to be excluded, either by the Inspector or the Local Government Board? A principle for exclusion ought to be laid down; for, unless that was done, there would be a risk that different principles would be acted upon in different districts.
  THE DUKE OF RICHMOND AND GORDONthought that the only safe course was to leave the question of exclusion to the Inspectors.
  THE EARL OF MALMESBURYasked, was the New Forest, as belonging to the Crown, to be exempted from the provisions of the Act? Riparian owners had been much injured by the waters flowing from it.
  EARL SPENCERreplied, that he would deal with the subject of exemptions later on. As to the distinction between uplands and midlands, he would be sorry to introduce any definition into the Bill, as definitions always gave rise to great difficulty.
  Amendments agreed to.
  LORD CARRINGTON, in rising to propose the following Amendment:—
  "Provided also, that the inspector shall also inquire whether any lowlands or midlands have been protected from floods by works executed within the district prior to such inquiry, and in case the inspector shall find such lowlands or midlands have been so protected, the Local Government Board shall exempt such lands from the payment of the whole or such portion of the rates payable under this Act as may appear to them to be just, having regard to any benefit they may derive therefrom,"
  said, he thought it right to state that he had not put this Amendment on the Paper in any spirit of hostility to a Bill
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  which attempted to remove an intolerable evil. His reason was that in the Bill one portion of England had been entirely overlooked. He meant the Fens, including the 1,300 square miles—that was, 900,000 acres—through which run the four rivers, the Nene, the Ouse, the Witham, and the Welland, which emptied themselves into the estuary of the Wash. Those marshes were drained in 1649 by William, Earl of Bedford, and in protecting themselves proprietors had spent more than the value of the fee simple of the land. These lands were not uplands, midlands, or lowlands. If their Lordships treated them as lowlands, what did they propose? Were they to pay five-sixths of the expenses, in addition to the tax already incurred? The noble Duke (the Duke of Bedford) paid 11 s. an acre on 20,000 acres of land, and in some instances the tax went as high as £1. To take one solitary example:—If in order to improve the river Welland at Market Deeping—which was subject to flooding and which, lying above the Fen district, contributed nothing to Fen taxation—£600, a very moderate estimate, were required, the Fens must contribute £500, Market Deeping itself £100; and if an outlay of £600 were required in the Fens to obviate the damage which would otherwise arise to the Fens in consequence of such improvement, the contributions towards it would again be in the same proportion. The consequence would be that Market Deeping, for the sole benefit of which all the works were constructed, and which would derive all the benefit acquired, would contribute £200 only, as against the Fens, which contributed £1,000, and remained as they were. Perhaps their Lordships would be told that the Fens were protected by Clause 22. That only put them at the mercy of a Conservancy Board. Did the Government in this Bill intend to keep up the banks of the drains, which would have to be strengthened in proportion to the increased volume of water sent down, at the expense and at the risk of the Conservancy Board? He could not believe that the Government meant to do an act of injustice full of danger to some of the best farmers in England; and, trusting that this exceptional case would meet with due consideration, he confidently hoped that the Lord President would be able to accept his Amendment.
  EARL SPENCERsaid, he was unable to accept his noble Friend's Amendment. He fully admitted that there were cases of the kind to which the noble Lord had referred in respect of which there ought to be no further taxation; but thought that the objects sought by his noble Friend would be secured by the Amendments already inserted in the Clause and by Amendments which he would propose in subsequent parts of the Bill.
  Amendment negatived.
  Clause, as amended, agreed to, and ordered to stand part of the Bill.
  Clauses 5 to 9, inclusive, agreed to, with Amendments.
  EARL SPENCERproposed, in page 5, after Clause 9, to insert as a new Clause—
  (Subsidiary powers as to works.)
  "A conservancy board may, if they think expedient, as subsidiary to the carrying into effect the provisions of this Act, maintain, improve, or construct any works for the arterial drainage or for the warping or irrigation of lands, or for the storage of water within their district."
  The noble Earl said, that the Bill which was introduced contained the power provided by this clause; but, in consequence of objections made to that power in the discussion on the second reading, it was removed. From representations made to the Government, he thought, however, that it was necessary to restore it. He would take arterial drainage first. After the flooding of rivers their banks were raised, and, as a consequence, the water would be imprisoned on the adjoining lands if works for arterial drainage and the storage of water were not constructed. In cases where Boards were carrying out arterial drains necessary for such purposes as he had described, it might be of great advantage to proprietors to get some adjoining lands drained, for which they would pay under the Special Benefit Clause. It would be desirable, therefore, to give Boards power to create such works, which might otherwise never be carried out, and which were of importance to a district. Then, as to storage of water, it might happen that cleaning the channels of rivers might lower the level of the water, and deprive districts of water in dry seasons. To meet this case, storage of water was desirable; but it was never intended to carry out large and independent works for supplying towns with water. Then,
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  as to warping and irrigation, it was known that it was necessary in some cases to make works for irrigation, in order to supply certain lands with pure water, which necessary cutting in the bed of the river or at the outfall might have destroyed or made brackish. The same thing might occur in the case of warping. He hoped, therefore, that these powers, which might prove of the greatest utility, would be restored to the Bill. Their Lordships would, however, see that the arterial drainage contemplated in the clause was not "arterial drainage" in the wider sense of the term, but arterial drainage subsidiary to the carrying into effect the provisions of the Act.
  THE DUKE OF RICHMOND AND GORDONsaid, that arterial drainage was usually a large operation. If the arterial drainage contemplated by his noble Friend was really to be subsidiary to the carrying into effect the provisions of the Act, it was already provided for by the 3rd section of Clause 9, which gave the Conservancy Board power to construct any watercourse or any outfall. He objected to the uplands having to contribute to the expense of works of irrigation from which they would derive no benefit, while those works would be a source of considerable gain to the lowlands, and to the expense of storage works from which the lowlands would make a pecuniary profit.
  THE MARQUESS OF HUNTLYsupported the clause, contending that many cases would occur in which it would be extremely desirable that the works mentioned in it should be carried on. He would remind the noble Duke that there were other provisions in the Bill which obviated the objections he raised to the clause.
  LORD NORTONpointed out that the proposal contained in the clause had been rejected by the Select Committee because it would lead to the exorcise of additional functions outside the province of the Bill, to the principle of which it was distinctly opposed, inasmuch as it would increase instead of relieving the burdens of conservancy, and would have the effect of taxing a large area of the country for the purpose of private improvement. River conservancy meant the making a whole watershed drain off harmlessly through the natural common

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  channel, and abating the nuisance of a larger discharge into the river than it could carry off without help. The clause proposed adding subsidiary works. Such works as were strictly subsidiary to the conservancy of a river the 9th clause would provide for, while to tax whole districts with the object of carrying out further works which would be private improvements would, he maintained, be obviously unjust. Arterial drainage, so far as it might be subsidiary to embanking, came under the provision for out-fall of water. Storage of water, as subsidiary for relief of a flood, was very doubtfully suggested; but, if possible, would come within the terms of the 9th clause. If it went further it would involve the injustice of a town supply at the expense of the country, and in abatement of their own nuisance. Warping and irrigation could not be in any possible way subsidiary to the conservancy of a river; and, on those considerations, he had given Notice that he would ask their Lordships not to assent to the clause.
  THE LORD CHANCELLORcontended that the object of the clause was good, and that under its operation many useful works might be carried out of an incidental and subsidiary character, which warping and irrigation might fairly be said to be.
  THE MARQUESS OF SALISBURYthought it was a somewhat extravagant proposal to give the Conservancy Board powers so wide as those suggested. The great danger of the Bill was the enormous expense which it might entail. If the authorities were to be allowed to take districts for the purpose of carrying out whatever might be the fashionable theory of the moment on the subject of the irrigation of land, or cm that of the storage of water, there might be no end to the pecuniary burdens laid on owners and occupiers of land. It would, in short, be rash to trust civil engineers with regard to such matters as irrigation and storage, if the bottomless purse of unlimited taxation were opened to them.
  THE DUKE OF SOMERSETremarked that as this Bill affected 200 rivers and interfered with 2,000 Acts of Parliament, and as warping had nothing whatever to do with prevention of floods, he should oppose the new clause. He thought that the Local Government Board would have quite enough to do
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  under this Bill without engaging in such works as those indicated.
  EARL STANHOPEobjected to the clause on the score of the increased and almost unlimited expense which it would involve, and because he deemed its objects alien to the general purposes of the Bill. Moreover, it would make the Bill more difficult of acceptance in "another place."
  EARL SPENCERsaid, that after such expressions of opinion as had been elicited he would not ask their Lordships to divide. He must, however, distinctly repudiate the supposition that he had intended to tax the upper districts for improvements which would solely benefit the lower lands.
  Clause (by leave of the Committee) withdrawn.
  Clauses 10 to 17, inclusive, agreed to.
  Clause 18 (Expenses of conservancy board).
  EARL BEAUCHAMPthought the Government should take steps to expedite the Ordnance Survey. Those districts that were unsurveyed would be put to a heavy expenditure which those that were surveyed would be saved. He thought it a reflection on the country that the completion of the Ordnance Survey had been so long delayed.
  EARL SPENCERquite agreed that it was desirable to complete the Survey, but did not propose to insert any words in reference to it.
  Clause agreed to.
  Clause 19 (Classification of works).
  THE EARL OF JERSEY THE EARL OF JERSEY moved, in page 8, line 28, to leave out from "the whole" to the end of the clause, and to insert—
  "The expanses incurred by the board shall be borne by the owners and occupiers of lands within the district, according to the following scale:—(1). In case of land let from year to year, the whole of such expenses shall be borne by the owner; (2). In ease of land let on lease for a term of which twenty-one years or more are unexpired, the whole of such expenses shall be borne by the occupier; (3). In case of land let on lease for a term of which less than twenty-one years are unexpired, such expenses shall be divided into twenty-one parts, and one such part shall be borne by the tenant for each and every year which is unexpired of the lease, and the remaining proportion shall be borne by the owner."
  THE LORD CHANCELLORthought that the plan proposed by the Govern-

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  ment to impose on the owners the expense of the improvements and construction of new works and half the other expenses of the Board was fairer to the tenant.
  EARL BEAUCHAMPthought it would be much the best plan to throw the whole burden on the owner, and leave him to make such arrangements with the tenant as might be agreed on between them. By that means all conflict of interests between landlord and tenant in the formation of the Boards and carrying on the works might be avoided. It was obvious that by constructing these works the land would be much improved; and, therefore, it was not unreasonable that the owner should bear the charge.
  THE DUKE OF RICHMOND AND GORDONwas in favour of the suggestions made by the noble Earl who had just sat down.
  THE MARQUESS OF BATH, who adopted the same view, thought that difficulties might arise in those cases, which in some parts of the country were very common, where land was let for three lives, or 99 years, determinable on the expiration of the last of three lives.
  THE LORD CHANCELLORthought that the proposal of the noble Earl (Earl Beauchamp) went somewhat too far. The whole capital expenditure was thrown, by the Bill, upon the owner; and it was not unreasonable that half the current expenses necessary for maintaining works after their completion, which would be beneficial to the occupier, and would be in the nature of charges upon income and not capital, should be borne by the occupier.
  THE MARQUESS OF SALISBURYsaid, that the suggestions of the noble Earl (Earl Beauchamp) would best meet the difficulties of the case, as tenants' improvements were necessarily of a less substantial character than landlords', and throwing the burden on the owner would get rid of all competition of interests in that respect.
  THE EARL OF CAMPERDOWNhoped that his noble and learned Friend the Lord Chancellor would accept the suggestion of the noble Lord opposite.
  EARL SPENCERregretted that he was unable to accept the suggestions of the noble Earl (Earl Beauchamp). If the clause were amended as proposed, it would be exceedingly difficult to work, and he thought cases of injustice would
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  arise under it. He sympathized with the views of the noble Earl (the Earl of Jersey), and did not wish to impose on tenants unnecessary burdens. In this respect, the Bill imposed a much smaller burden on the tenant than the Bill of the late Government. It merely made the tenant liable for the half-cost of the maintenance of works and establishment charges. He did not see how occupiers—and this applied to towns as well as agricultural places—could be placed on the Board if they paid nothing towards the rate. It was most desirable that tenants who lived on the laud should take part in the management of these Boards. He could not, therefore, agree to relieve them of the small part of the rates which might be imposed by this Bill, for he thought it of the utmost importance that tenants should be enlisted in the management of these Boards.
  THE EARL OF DERBYsaid, if the Amendment were accepted, they might have a difficulty in forming the Boards, and thus they would defeat their own object.
  THE EARL OF KIMBERLEYheld that the Bill fairly met the case of both owners and occupiers, because it made a distinction between the construction of new works and their maintenance. He contended that it was perfectly right that owners should pay for permanent improvements; but that, on the other hand, occupiers, even from year to year, should pay towards the maintenance of the works in which they were directly interested.
  Amendment negatived.
  Clause agreed to.
  Clauses 20 to 46, inclusive, agreed to, with Amendments.
  Clause 47 (Saving as to works of Admiralty and other Government departments).
  THE EARL OF MALMESBURYsaid, that he objected to the clause altogether, as an exception to the general principle and object of the Bill.
  EARL SPENCERreplied, that a clause of a like character was introduced into all such Bills.
  Clause agreed to.
  Remaining clauses agreed to.
  Schedules agreed to.
  The Report thereof to be received on Tuesday next; and Bill to be printed as amended. (No. 44.)

IRISH QUARTER SESSIONS.

  OBSERVATIONS. QUESTION.
  LORD MASSY: In putting to the noble Earl the Lord President of the Council the Question of which I have given Notice, I wish distinctly to disclaim anything of a personal nature in it; and having learned, since coming into the House, that the Government have decided upon arranging this matter, I shall feel much obliged if the noble Earl will kindly state what the nature of that arrangement is. My Question is, Whether the dates for holding Quarter Sessions, Civil Bill and Land Courts, in the counties of Cavan and Leitrim, were fixed pursuant to Statute in the month of November last, for the present year; whether six weeks' notice of the holding of each such Sessions or Court is required by Statute, and whether several weeks' notice or previous service of process is required in cases of transfers of licences, equity civil bills, and land claims; whether the recent change of dates was ordered to meet the convenience of the public or that of the County Court Judge; and whether, as regards the county of Leitrim, the suitors in all these cases will not now be compelled to wait till the following Sessions, or else be driven to expensive proceedings in the Superior Courts?
  LORD WAVENEYsaid, the matter was one of grave importance; and great inconvenience was caused, as the noble Lord opposite had stated, and he was glad that the Question had been put.
  EARL SPENCER, in reply, said, the Irish Law Officers had recommended that an Order should be made at once restoring the dates fixed by the Order of last November. He trusted that that arrangement would meet the difficulty.
  House adjourned at a quarter before Eight o'clock, till To-morrow, half past Ten o'clock.