Lords Sitting of 24 July 1896

PRIVATE BUSINESS.

  PROVISIONAL ORDER BILLS.
  LORD HARRIS LORD HARRIS moved; "That the Order made on the 16th of March last,—
  'That no Bill brought from the House of Commons confirming any Provisional Order or Provisional Certificate shall be read a Second time after Tuesday the 23rd day of June next,'
  be dispensed with, and that the

  LOCAL GOVERNMENT PROVISIONAL ORDER (NO. 21) BILL,
  LOCAL GOVERNMENT PROVISIONAL ORDER (NO. 22) BILL,
  be read a Second time."
  THE CHAIRMAN OF COMMITTEES (The EARL OF MORLEY)observed that he did not intend to make any objection to the order being dispensed with, but this year there were more late Bills than he ever remembered.
  LORD HARRISsaid he had already called the attention of the Local Government Board to this matter. He was much obliged to the noble Earl for not opposing the Motion to-day.
  Motion agreed to; Bills read a Second time accordingly, and committed to a Committee of the Whole House on Monday next.

  POLLUTION OF RIVERS.
  LORD NORTONsaid he had given notice to Her Majesty's Government of a question which he thought their Lordships would agree dealt with a
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  very serious and urgent subject. The increasing pollution of all the rivers throughout the kingdom by the sewage of the towns was now reported in every district by medical officers as a sanitary matter of the most grave importance to the life of man and beast, to the health of the community, and it was largely destructive to property. He himself was the first to try the powers of the law to abate this nuisance by bringing an action for damages against the Corporation of Birmingham. He knew what the difficulty and expense were of a private individual obtaining an injunction, but he did obtain it, and it was a precedent for all subsequent proceedings on the subject. Statutory facilities had since been offered. The Rivers Pollution Prevention Act of 1876 was very complete for its purposes, apparently. It defined what pollution of rivers meant under the Act; it made it obligatory upon all sanitary authorities throughout the kingdom to facilitate in every way the drainage of their towns through sewers clear of all running streams. It also imposed upon County Courts to enforce the abatement of this nuisance by summary order with an appeal to the High Court. But the Act had turned out to be somewhat of a dead letter, for want of provisions to carry it out. No sooner was the sanitary authority called upon to fulfil its obligations under the Act than innumerable delays immediately occurred. Every sort of difficulty was found in the way of execution of works, and if they were begun they did not proceed. In the first place there were no definite powers enabling their execution; and in the second place the County Council had too small an area to deal with the whole basin of a river, and in many cases would have no command of an outfall for their works. The Local Government Board, by general acknowledgment, had a good deal too freely used its power of suspending the order of the County Court, and in that way they hung up numerous cases without any operation taking effect. Years passed away before an offender was finally brought in contact with the County Court Judge, and then a new crop of delays began to occur. That was the state of things in which the law had become; inoperative. The 14th Section

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  of the Local Government Act of 1888 gave powers generally to County Councils to enforce the Act of 1876, but there were no provisions for carrying out the powers given, and, of all things, there was no power given to County Councils to combine so as to deal with the whole area of the river. Under these circumstances, the County Councils Association drafted a Bill which would empower the County Councils to effectually abate this nuisance. Lord Cross passed that Bill through their Lordships' House in 1893, but it dropped in the other House, simply for want of attention or time. Every year since then a private Member, Sir Francis Powell, had introduced this same Bill into the House of Commons, and it was now before that House again, with as little prospect of passing as at first. He thought he might press upon the Government that what had happened showed that private Members could not deal with this subject. The remarkable thing was that the failing enactment had been carried out by local Acts, and had worked in the most successful manner in two districts of the country. All the powers that were required were embodied in the Mersey and Irwell Act, and the West Riding of Yorkshire Act. He was told by Lord Egerton of Tatton that the Mersey and Irwell Act was in full operation and most successful. They had nothing whatever to do but to make the powers of these Acts general to gain the object they bad in view. The Government could do it; clearly private Members could not do it. He only asked the Government to take the matter up, and in a very short Act they might extend the powers given under these two local Acts to all districts throughout the kingdom. He believed such a Bill would be received with the greatest acclamation by most of the County Councils in England. He could hardly hope that the Government would introduce such a Bill now, but he hoped they would give him some encouragement to believe that they would deal with the subject if possible early next Session. He begged to ask Her Majesty's Government if they will undertake the legislation which, in a few clauses, has been prepared by the County Councils Association, in the terms of existing local Acts, but which in private hands has failed for several
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  Sessions to obtain time for discussion. It is simply to make general the powers of procedure, already successfully given in those local Acts, for facilitating the prevention of pollution of rivers.
  LORD THRINGsaid the evil of which the noble Lord had spoken could not be exaggerated. It was perfectly true, as the noble Lord said, that both in Lancashire and the West Riding of Yorkshire private Acts had been passed, at very great expense and after very great difficulty, which were perfectly effectual. The real truth was that the difficulty of dealing with the evil was to be found in the Act of 1876 rather than in the other Acts. The Act of 1876 declared that, in a manufacturing town or district, the effluents of the manufactories could not be removed and the pollution dealt with unless it could be done at a reasonable cost and without injuring the manufacturing interests of the place. But it was almost impossible, where a large number of manufactories existed, to attempt to deal with the evil without in some way injuring, or interfering with, the manufacturing interests. ["Hear, hear!"] The Act, most unfortunately, contrary to the common law, and in opposition to the remonstrances made on the point when the Act was passed, declared that the certificate of the Local Government Board should be conclusive, he thought, as to the reasonableness of the cost and the practicability of the needs. But the Act of 1876 was practically unworkable. Time after time another Bill had been introduced into Parliament, and efforts repeatedly made to pass it into law; but those efforts had never succeeded, because the Government would not take the trouble of undertaking to pass it. ["Hear, hear!"] The fact that such a Bill could be passed if the Government took it up, and ought to be passed, could not be denied. In Lancashire, where, perhaps, the evil existed to a greater extent than in any other part of the country, and where, unless some remedy was applied, even the Manchester Ship Canal would be seriously injured, the authorities had done much, even under the existing law and their local Acts, though at great expense to mitigate the nuisance; and the action which had been taken in Lancashire and Yorkshire should be enforced throughout the country.
  VISCOUNT CLIFDENsaid he agreed with all the noble Lord had said as to the seriousness of the evil, and the necessity for an effective remedy being applied. But he differed from him on one point. The noble Lord seemed to desire an Act framed on the lines of the two local Acts in the West Riding and Lancashire; yet the noble Lord who had just spoken had said that, notwithstanding those Acts, the contamination of the rivers in Lancashire was very great.
  LORD THRING: No. I said that, as far as I know, the Acts had worked completely in Lancashire and Yorkshire.
  VISCOUNT CLIFDENsaid he thought the condition of the Manchester Ship Canal showed a state of things that was not at all satisfactory. On the Committee last year, a member of the West Riding County Council—he thought the chairman—stated in evidence, in answer to a question from him, that every river in the West Riding was nothing but an open sewer. If that was the case in spite of the local Acts, he hoped the Rill brought in next year would be far more stringent than those Acts appeared to be.
  LORD HABRISsaid it was from no lack of recognition of the importance of the subject—for obviously there could be no subject of greater importance than the public health—that he was unable to promise that the Government would undertake what the noble Lord had asked them to do. It might be taken, he imagined, that the Act of 1876 had not been successful from the fact that it had been to a great extent inoperative. But under that Act, and also under the Act of 1888, considerable powers could be conferred upon urban and rural district councils to deal with the evils referred to. The authorities concerned had only to apply to the Local Government Board for those powers, and the Board could make a Provisional Order for the constitution of a Joint Committee representing the counties or county boroughs, or one or other of them, through which the polluted river ran. It was therefore possible under the existing Acts for the local authorities to come to the Local Government Board for powers to combine, and thus to work over a larger area of the river-bed than a single authority could do. The noble Lord had suggested that legislation upon
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  the lines they would like to see adopted was a very simple matter for the Government to undertake. But what were the facts? The Rivers Pollution Prevention Bill had been introduced several years in succession in the House of Commons. It had been again introduced this year, and as a matter of fact it was at that moment blocked by no fewer than five Members, and those Members were not confined to one Party. It was, therefore, scarcely possible to describe the Measure as a non-contentious one, or one that could be passed easily through Parliament. There was a number of people, he thought, who did not through their representatives look at this matter from the same point of view that the authorities representing the counties did, and he imagined that the Measure was blocked by the representatives of very large cities. It was therefore extremely probable that whoever undertook to legislate on the matter would be met with strong opposition of that character, and consequently he could not admit that such legislation would be a simple matter or that it could be easily passed through Parliament because the Government took it up. As had been stated, three Joint Committees had been constituted for Lancashire and the West Riding of Yorkshire under the Acts referred to. In two of those cases the authorities had, by means of local Acts, obtained additional powers. He wished he could make a more satisfactory reply to the noble Lord than he was able to give, but the noble Lord would recognise that it was impossible for the Government at this moment to pledge themselves as to the legislative Measures they would introduce and undertake to carry through next Session. All that he could assure him of was that the suggestions he had made would not be lightly passed over by the Local Government Board, as, indeed, from the importance of the matter, they ought not to be. ["Hear, hear!"]
  LORD NORTONbelieved that those who blocked the Bill in the House of Commons were the representatives of the boroughs which were the nuisance-makers in this matter. The question was whether the boroughs should be allowed to use the country as their wash-pot? [Laughter.] If they had to wait

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  until the boroughs abated their own nuisances they would have to wait a long time.

  PUBLIC HEALTH BILL.
  Read 3a (according to Order), and passed.
  SPECIAL JURIES BILL [H.L.]
  A Bill to amend the law respecting special juries—Was presented by the Lord Chancellor; read 1a; and to be printed.—[No. 213.]

  JUDICIAL TRUSTEES BILL.
  Considered in Committee (according to order).
  [The ERAL of MORLEY, CHAIRMAN of COMMITTEES, in the Chair.]
  Clause 1,—

  JUDICIAL TRUSTEES BILL.

    POWER OF COURT ON APPLICATION TO APPOINT JUDICIAL TRUSTEE.
    (1.) Where application is made to the court for the appointment of a judicial trustee as respects the trust or any property by or on behalf of the person creating or intending to create the trust, or by or on behalf of a trustee, or beneficiary, the Court may, in its discretion, appoint a judicial trustee of such trust, either jointly with any other judicial trustee or any other persons or as solo trustee, and, if sufficient cause is shown, in place of any existing trustee.
    (2.) The administration of the property of a deceased person, whether a testator or intestate, shall be a trust, and the executor or administrator a trustee, within the meaning of this section
    (3.) Where a judicial trustee is appointed, the Court may on or after such appointment vest in the judicial trustee if he be sole trustee, and in the judicial trustee jointly with any other person or persons, if he be appointed to act jointly with any other person or persons, all or any part of the trust property.
    (4.) A judicial trustee may be either an official of the Court or any other person, and in either case shall be subject to the control and supervision of the Court as an officer thereof.
    (5.) The Court may, either on request or without request, give to a judicial trustee any general or special directions in regard to the trust or the administration thereof.
    (6.) There may be paid to a judicial trustees out of the trust property such remuneration, not exceeding the prescribed limits, as the Court may assign in each case, subject to any rules under this Act respecting the application of such remuneration where the judicial trustee is an official of the Court, and the remuneration so assigned to any judicial trustee shall, save as the Court may for special reasons otherwise order, cover all his work and personal outlay.
    Clause ordered to stand part of the Bill.
    Clause 2,—

    COURT TO EXERCISE JURISDICTION.
    The jurisdiction of the Court under this Act may be exercised by the High Court, the Court of Chancery of the county palatine of Lancaster, and (subject to the prescribed definition of the jurisdiction) by any county court judge to whom such jurisdiction may be assigned under this Act.
    LORD ASHBOURNE LORD ASHBOURNE moved an Amendment the object of which was to extend the Bill to Ireland. From every point of view the Bill appeared to be a sensible and valuable one to assist the administration of justice in trust matters, and he should be exceedingly sorry if it could not be extended to Ireland. He was, however, very anxious that the Bill should pass, and if it should be found hereafter that his Amendment would be likely to lead to any complication, he certainly would not persist in it at the risk of endangering the passing of the Measure. ["Hear, hear!"]
    Amendment agreed to; clause, as amended, ordered to stand part of the Bill.
    Clause 3,—

    EXCUSING AND AUTHORISING BREACH OF TRUST.
    (1.) If it appears to the Court that a trustee, whether appointed under this Act or not, is or may be personally liable for any breach of trust, but has acted honestly and reasonably, and ought fairly to be excused for the broach of trust and for omitting to obtain the directions of the Court in the manner in which he committed such breach, then the Court may relieve the trustee either wholly or partly from personal liability for the same.
    (2) The court may authorise a departure from the terms of a trust, where satisfied that since the creation thereof there has been a change of circumstances, and that such departure will not prejudice any of the persons beneficially

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    interested in the trust, and is for the benefit of those persons or some of them, and generally
    that it in expedient to authorise the same.
    THE LORD CHANCELLOR (LORD HALSBURY)said he did not see Lord Derby, who had an Amendment on the Paper, present, and he supposed the noble Lord intended to postpone moving his Amendment until the Bill was considered by the Standing Committee. He, however, wished to say a word upon a matter on which he could not move an Amendment. He was not responsible nor were their Lordships responsible for a margined note on this clause. Perhaps he was in the habit, as a lawyer, of not looking at the marginal notes, and therefore he did not see the note to this clause when he presented the Bill. It appeared to him that somebody had been playfully engaged in trying to throw some ridicule on the Bill, for the marginal note was "excusing and authorising the act of trust." [Laughter.] Of course a marginal note was not a part of a Bill, and he had only mentioned the circumstance to show he did not at all acquiesce in that description of legislation.["Hear, hear!" and laughter.]
    LORD ASHBOURNEsaid that Clause 3 was of the highest value to all trustees who acted honestly and fairly, but who inadvertently committed some breach of trust, and brought themselves within the complications of the law. Lord Herschell had, on a previous occasion, stated that this clause, of all others in the Bill, was the one which most commended itself to his appreciation.
    Clause ordered to stand part of the Bill.
    Clause 4,—

    RULES.
    (1.) Rules may be made for carrying into effect this Act, and especially—

    (1) for requiring judicial trustees, who are not officials of the Court, to give security for the due application of any trust property under their control:

    (2) respecting the safety of the trust property and the custody thereof:

    (3) respecting the remuneration of judicial trustees and for fixing and regulating the fees to be taken under this Act so as to cover the expenses of the administration of this Act, and respecting the payment of such remuneration and fees out of the trust property:

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    (4) for dispensing with formal proof of facts in proper cases:

    (5) for facilitating the discharge by the Court of administrative duties under this Act without judicial proceedings, and otherwise regulating procedure under this Act and making it simple and inexpensive:

    (6) for assigning jurisdiction under this Act to County Court Judges and defining such jurisdiction:

    (7) respecting the suspension or removal of any judicial trustee, and the succession of another person to the office of any-judicial trustee who may cease to hold office, and the vesting in such person of any trust property or executorship:

    (8) respecting the classes of trusts in which officials of the Court are not to be judicial trustees, or are to be so temporarily or conditionally:

    (9) respecting the grant of probate or letters of administration to judicial trustees:

    (10) for preventing the employment by judicial trustees of ether poisons at the expense of the trust, except in cases of strict necessity:

    (11) for the filing of accounts by judicial trustees.

    (2.) The rules under this Act may he made by the authority having for the time being power to make rules regulating the practice and procedure of the Supreme Court of Judicature, and shall be laid before Parliament and have the same force as if enacted in this Act, provided that if within thirty days after such rules have been laid before either House of Parliament, during which that House has sat, the House presents to tier Majesty an address against such rules or any of them, such rules or the rule specified in the address shall thenceforward be of no effect.
    LORD ASHBOURNE LORD ASHBOURNE moved, in Subsection (2), to omit the word "authority," and to insert the words "respective authorities."
    Amendment agreed to.
    THE LORD CHANCELLORthought the persons who framed the Bill were under some misapprehension as to what the Rule Committee did. There were one or two matters provided for which were not properly within the function of the Rule Committee, and in the Standing Committee he would propose Amendments in respect of them.
    LORD ASHBOURNEtrusted that, when his noble Friend introduced Amendments on the subject of the

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    drafting of Rules, he would see that similar changes were made with reference to the Rule-making authority in Ireland.
    Amendment proposed, after the word "Judicature," to insert the words "in England and Ireland "—(Lord Ashbourne)—put and agreed to.
    Bill re-committed to the Standing Committee; and to be printed as amended.—[No. 214.]

    COLLECTING SOCIETIES BILL.
    Brought from the Commons; read 1a; to be printed; and to be read 2a on Monday next.—(The Lord Chancellor.)—[No. 215.]
    FRIENDLY SOCIETIES BILL.
    To be read 2a on Monday next.—(The Lord Chancellor.)
    CABS (LONDON) BILL.
    Returned from the Commons, with the Amendments agreed to.
    PUBLIC OFFICES (SITE) BILL.
    Read 3a (according to Order) and passed.

    PUBLIC HEALTH (PORTS) BILL.
    Read 3a (according to Order), and passed.
    House adjourned at Five minutes past Five o'clock, to Monday next, Eleven o'clock.