§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Earl De La Warr.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Maintenance of banks and cleansing of channels of watercourses.
§ 1.—(1) Where the owner or occupier of any agricultural land is of opinion that such land is being injured or is in danger of being injured by reason of the failure of the owner or occupier of any other land to maintain or to join in maintaining the banks or to cleanse or scour or to join in cleansing or scouring the channel of any watercourse 1074 in or partly in or adjoining such last-mentioned land, it shall be lawful for tile owner or occupier of such first-mentioned land to serve a notice on the owner of the land last-mentioned requiring him to maintain or to join in maintaining the banks or to cleanse or scour or to join in cleansing, or scouring the channel of any such watercourse as the case may be.
§ (4) If the sheriff is satisfied—
- (a) that the land owned or occupied by the applicant is being or is in danger of being injured by such failure as aforesaid;
- (b) that the person on whom the notice has been served is unreasonably refusing or delaying to take such steps as may be necessary to remedy or prevent such injury; and
- (c) that the cost of carrying out any operations necessary to remedy or prevent such injury is such that it may reasonably be borne by the parties,
§ (5) If on any such application the sheriff shall be of opinion that the land owned or occupied by the applicant is being or is in danger of being injured by such failure as aforesaid, but that the cost of carrying out any operations necessary to remedy or prevent such injury is such that it would be unreasonable to make an order under this section For the carrying out of such operations, he may direct that intimation of the application and of his decision thereon he made to the Department, and that any report submitted to him under subsection (3) of this section, and any plan, map, or other document produced in the application, be communicated to the Department.
§ VISCOUNT NOVAR moved, in subsection (1), before the first "cleanse," to insert "clear." The noble Viscount said: This Amendment is purely drafting. The person who drafted this Bill had in his mind open drains. The expressions used, maintaining time banks and cleansing the channels of watercourses, obviously refer to open ditches and streams and they are inappropriate to underground tile drains. 1075 I do not know if this Amendment will be accepted. The expression "watercourse" is defined in Clause 9 as including drains, and the Government stated in Committee in another place that "drains" included covered tile drains, and that the provisions of Clause 1 were intended to apply to tile drains. Choked tile drains cause much damage to agricultural land. You cannot maintain the banks of a tile drain and to speak of cleansing or scouring the channel of a six-inch tile drain is hardly a happy expression. The word "clear" is more appropriate. If a tile drain is choked you can clear away the obstruction. The Amendment is purely a drafting one with the object of incorporating some word appropriate to a choked tile drain. I beg to move.
§
Amendment moved—
Page 1, line 10, after ("to") insert ("clear").—(Viscount Novar.)
§ THE UNDER-SECRETARY OF STATE FOR WAR (EARL DE LA WARR)I quite agree with the noble Viscount that it is important to have words in this clause that will apply to tile drains, but I have been into the matter very carefully with legal advisers and I can assure the noble Viscount that the word "clear" is understood to be included in the expression "cleanse or scour." That is what we are told by our legal advisers, and therefore I would ask the noble Viscount not to press his Amendment, which only means putting in an extra word already implied.
§ VISCOUNT NOVARI think my word is better, but I will accept the noble Earl's assurance.
§ Amendment, by leave, withdrawn.
§
VISCOUNT NOVAR moved, after subsection (3), to insert the following new subsection:
(4) If on any such application the sheriff shall be of opinion that the applicant has acted unreasonably in serving a notice in pursuance of subsection (1) of this section he shall ordain the applicant to pay to the person on whom the notice has been served such sum as he shall consider fair and equitable in respect of the expenses incurred by such person in connection with such notice and application.
§ The noble Viscount said: The intention of this Amendment is obvious. It is to prevent people making frivolous applications. It is most necessary to guard 1076 against that especially, because with the breaking up of large estates you may have a great number of landowners who will be dealing with one another under any considerable scheme. It is to prevent people making frivolous applications and putting their neighbours to unnecessary annoyance and expense. It will be noticed that if an application is frivolous, the sheriff may ordain that the frivolous applicant shall pay to the other party the expense not only in connection with the application to the sheriff but all the expense to which he has been put since the notice was served on him. Under other land legislation in Scotland I have known landowners put to very large expense by claims for the making of small holdings, for example, which were subsequently dropped, and the unfortunate owner has been put to great expense by the Department and remained out of pocket. It is to prevent that kind of injustice that I move this Amendment.
§
Amendment moved—
Page 2, line 6, at end insert the said new subsection.—(Viscount Novar.)
§ EARL DE LA WARRHere again we are in agreement with the intention of the noble Viscount, and if the noble Viscount will look at page 2 of the Marshalled List of Amendments he will see that we have put down an Amendment ourselves that deals with his point and really goes further. Our Amendment does not restrict the point that the noble Viscount is putting to unreasonableness, and it also applies both to Clauses 1 and 2. Therefore I would ask the noble Viscount if he would withdraw his Amendment and let me move my Amendment at the end of Clause 2. In case he has not noticed the Amendment I will read it. It is at page 4, line 12, at the end to insert as a new subsection:
(4) In any application to the sheriff under this or the immediately preceding section he shall have power to award expenses to or against any party to the application.The noble Viscount will see that our Amendment goes much further than his and is completely general, whereas his is restricted.
§ VISCOUNT NOVARI have not had the advantage of legal opinion in this 1077 matter, such as is enjoyed by the noble Earl, but if he assures me that his Amendment covers more ground than mine does I am quite ready to accept it.
§ EARL DE LA WARRYes, I do.
§ Amendment, by leave, withdrawn.
§
THE EARL OF LAUDERDALE moved, towards the end of subsection (4), after "The sheriff may, if he thinks fit," to insert "and shall if so required by the person upon whom the notice has been served." The noble Earl said: I rise to move the Amendment standing in my name, but before doing so I should like to point out the position. An owner of land is called upon by his neighbour, an owner or occupier, to carry out certain drainage schemes. He has refused to do so, and the owner who made the demand has invoked the assistance of the sheriff. The sheriff, having satisfied himself that the appellant's scheme is reasonable, ordains that the owner so called upon shall perform the work. The owner not having implemented the sheriff's order within two months the sheriff grants a warrant for a person to enter the land and carry out the work. Now I would call your attention to the last five lines of subsection (4). The subsection reads:—
The sheriff may, if he thinks fit, direct that any operations to be carried out under such an order or warrant as aforesaid shall be carried out under the supervision of a person of skill and experience in matters of drainage.
It is unlikely that the work asked for would be of a simple nature such as an ordinary country labourer would be able to carry out—for instance, the cleansing of an open drain or ditch. The probabilities are that the work would be of a much more complicated and serious nature. For instance, the landowner may have been called upon in the month of October to shore up the banks of a river. It is very difficult to get a tradesman to contract for this class of work between the months of October and April, on account of the possibilities of the river suddenly being in spate owing to melting snows or excessive rain, in which case the works would be possibly quite washed away unless they had been completed. Moreover the landowner on whose property this scheme is to be carried out
1078
is responsible for its future maintenance and repair. I submit that the owner on whose land this drainage scheme is to take place should have the option of requiring the person who carries it out to be one who is skilled in matters of drainage, and that the option should not rest upon the sheriff, who may or may not be a person skilled in agricultural matters and who may or may not have availed himself of the opportunity of consulting a skilled man which is provided for in this clause. I submit that it is most desirable and equitable that the owner should have this option. I therefore hope the noble Earl in charge of the Bill will accept the Amendment and that your Lordships will approve it.
§
Amendment moved—
Page 2, line 27, after ("fit") insert ("and shall if so required by the person upon whom the notice has been served"). —(The Earl of Lauderdale.)
§ EARL DE LA WARRThis clause really contemplates two things: firstly, an order on a person on whom a notice has been served to carry out certain operations; and secondly, a warrant authorising a person to carry out the operations. We should have it quite clearly in our minds that this clause does not begin to operate until individual negotiations have fallen through and the sheriff has been appealed to. The sheriff has to come to a decision as to whether the scheme is to be carried out, and how it is to be carried out. Accordingly it is our opinion that it should be the sheriff who decides whether or not he requires expert advice. In actual practice I presume that a sheriff would almost always call in expert advice on a scheme of any size, but we think it should be left to him to make the decision. We must remember that, as I said at the beginning, this clause will not be called into operation at all until we are actually asked to deal with a landlord who has been found so much in default that the condition of his land is actually affecting other people's lands. We think, therefore, that the power should rest, not with the landlord, but with the sheriff to decide when the expert should be called in. I hope that your Lordships will not accept this Amendment.
§ LORD BANBURY OF SOUTHAMI am loth to interfere in a Scottish Bill, but 1079 this seems to me to be a very reasonable Amendment. All it does is to ensure that the owner shall have the opportunity of asking the sheriff to see that a person who has knowledge carries out these operations. What is the objection to that?
§ EARL DE LA WARRHe will certainly have the opportunity of asking the sheriff to call in expert opinion, but the matter has by this stage been handed over to the sheriff to deal with, and we think that the full responsibility for the way in which the sheriff deals with it should rest with him. Surely that it is quite clear and reasonable.
§ LORD BANBURY OF SOUTHAMIf I understand the noble Earl, he says that the owner can ask the sheriff. But the
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ EARL DE LA WARRI have a drafting Amendment to this clause, in subsection (5), after the first "Department."
§
Amendment moved—
Page 2, line 41, after ("Department") insert ("of Agriculture for Scotland (hereinafter referred to as the Department)").—(Earl De La Warr.)
§ sheriff can say: "You can go somewhere else; I will not listen to you." This Amendment will insist upon the sheriff giving attention to the owner. I hope the noble Earl will persist in it.
§ VISCOUNT NOVARThe average owner of land knows considerably more about this kind of business than the average sheriff. I think this is a very reasonable Amendment, and I hope that my noble friend will take it to a Division.
§ On Question, Whether the said words shall be here inserted?
§ Their Lordships divided: Contents, 60; Not-Contents, 13.
1079| CONTENTS. | ||
| Camden, M. | Devonport, V. | Fairfax of Cameron, L. |
| Salisbury, M. | Elibank, V. | Foxford, L. (E. Limerick.) |
| FitzAlan of Derwent, V. | Gage, L, (V. Gage.) | |
| Airlie, E. | Mersey, V. | Greenway, L. |
| Ancaster, E. | Novar, V. | Hampton, L. |
| Breadalbane and Holland, E. | Hayter, L. | |
| Abinger, L. | Lamington, L. | |
| Iveagh, E. | Addington, L. | Leconfield, L. |
| Lauderdale, E. [Teller.] | Askwith, L. | Leigh, L. |
| Lucan, E. | Auckland, L. | Macmillan, L. |
| Mar and Kellie, E. | Banbury of Southam, L. | Monteagle, L. (M. Sligo.) |
| Onslow, E. | Belhaven and Stenton, L. | Ormonde, L. (M. Ormonde.) |
| Peel, E. | Bowes, L. (E. Strathmore and Kinghorn.) | St. Levan, L. |
| Plymouth, E. | Saltoun, L. | |
| Stanhope, E. | Clanwilliam, L. (E. Clanwilliam.) | Sinclair, L. |
| Vane, E. (M. Londonderry.) | Somerleyton, L. | |
| Clinton, L. | Stanley of Alderley, L. (L. Sheffield.) | |
| Allenby of Megiddo, V. | Cushendun, L. | |
| Bertie of Thame, V. [Teller.] | Danesfort, L. | Swaythling, L. |
| Brentford, V. | Daresbury, L. | Templemore, L. |
| Burnham, V. | Darling, L. | Treowen, L. |
| Chaplin, V. | Dynevor, L. | Wynford, L. |
| Churchill, V. |
| NOT-CONTENTS. | ||
| Sankey, L. (L. Chancellor.) | Esher, V. | Marks, L. [Teller.] |
| Marley, L. [Teller.] | ||
| Beauchamp, E. | Arnold, L. | Ponsonby of Shulbrede, L. |
| De La Warr, E. | Clwyd, L. | Stanmore, L. |
| Russell, E. | Kylsant, L. | Thomson, L. |
On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2:
§ Making of underground main drains.
§ 2.—(1) Where the owner or occupier of any agricultural land is of opinion that such land is being injured or is in danger of being injured through the refusal of the owner of any land to allow underground main drains to be formed through his land it shall be lawful for the owner or occupier of such agricultural land to apply to the sheriff for a warrant authorising him to 1081 make such underground main drains through the land of such owner.
§ (2) If the sheriff is satisfied that the land owned or occupied by the applicant is being or is in danger of being injured by such refusal as aforesaid, and that permission to make such underground main drains is being unreasonably withheld, he may after such inquiry by remit or report, or otherwise, as he may think necessary, grant a warrant authorising the making of such underground main drains, and the person so authorised shall have power to enter on the land where the operations are to be carried out, and to carry out the same. The sheriff may, if he thinks fit, direct that any operations to be carried out under such warrant shall be carried out under the supervision of a person of skill and experience in matters of drainage.
§ (3) Such warrant shall provide (i) for the payment by the person so authorised of compensation for any damage caused to any other person by reason of the making of the underground main drains authorised by such warrant, the amount of such compensation, failing agreement, to be determined by the sheriff after such inquiry as aforesaid; and (ii) for the proper maintenance or renewal of the said drains in the future at the expense of the owner for the time being of the said agricultural land.
THE LORD CHAIRMANViscount Novar's Amendment, to insert a new subsection after subsection (1), deals with the same point as has already been decided.
§ LORD FAIRFAX OF CAMERON moved, in subsection (2), after the second "the," to insert "agricultural." The noble Lord said: This is a purely drafting Amendment. It will be observed that Clause 2 commences with the words "Where the owner or occupier of any agricultural land," etc., as distinguished from "the owner of any land." It is desirable, therefore, to insert the word "agricultural" before the word "land" in line 32. All through this clause the person who is making application is the owner or occupier of agricultural land, and this person is distinguished from the owner of the other land through whose property it is desired to make the underground drainage. I hope that as the Amendment is merely drafting the noble Earl will see his way to accept it.
§
Amendment moved—
Page 3, line 32, after the second ("the") insert ("agricultural").—(Lord Fairfax of Cameron.)
§ EARL DE LA WARRAs the noble Lord says, this is a purely drafting 1082 Amendment, but I am advised that it is quite unnecessary, for this reason, that the word "land" in line 32 obviously refers back to the word "land" in line 25, in subsection (1), and that has "agricultural" before it. Therefore it is quite unnecessary to repeat, and I am advised that it would be better drafting if the word were left out here. I hope the noble Lord will not press the Amendment.
§ Amendment, by leave, withdrawn.
§ THE EARL OF LAUDERDALE moved, in subsection (2), after "The sheriff may, if he thinks fit," to insert "and shall if so required by the person through whose land such underground main drains are proposed to be made," The noble Earl said: This raises the same point that I raised before, only in a greater degree, and I beg to move.
§
Amendment moved—
Page 3, line 42, after ("fit") insert ("and shall if so required by the person through whose land such underground main drains are proposed to be made").—(The Earl of Lauderdale.)
§ EARL DE LA WARRThe Government have just the same objections to this Amendment, only perhaps stronger, but your Lordships have expressed your views on the principle and I do not think that it will be any good putting you to the trouble of a Division. I will content myself with entering formal disagreement on the part of the Government.
§ THE MARQUESS OF SALISBURYNo, the noble Earl says that he will not resist it.
§ VISCOUNT NOVARThen they do accept it.
§ On Question, Amendment agreed to.
§ THE EARL OF LAUDERDALE moved, in subsection (3), to leave out "damage caused to," and insert "loss, injury or damage sustained by." The noble Earl said: I look upon this as purely a drafting Amendment. As the clause at present stands the expression "damage caused to" might refer to personal damage and not to financial damage, which is what my Amendment is in- 1083 tended to cover. There may be damage caused from underground or other drains to the standing crops, dykes or fences.
§
Amendment moved—
Page 4, line 5, leave out ("damage caused to") and insert ("loss, injury or damage sustained by").—(The Earl of Lauderdale.)
§ EARL DE LA WARRThis is a drafting Amendment, and I am advised that there is really no difference between it and the words in the Bill, except that the Amendment is slightly longer and in our opinion, not quite so well drafted. Unless the noble Earl feels strongly about it I would suggest that we leave the clause as it is.
§ EARL DE LA WARRI am advised that there is no difference between "injury" and "damage."
§ Amendment, by leave, withdrawn.
§ THE EARL OF LAUDERDALE moved, in subsection (3), to leave out "other." The noble Earl said: It appears to me that this word is unnecessary.
§
Amendment moved—
Page 4, line 5, leave out ("other").—(The Earl of Lauderdale.)
§ EARL DE LA WARRI think if the noble Earl reads the subsection carefully he will see that the omission of the word "other" merely gives an owner the right to claim compensation from himself. The subsection reads:—
Such warrant shall provide (i) for the payment by the person so authorised of compensation for any damage caused to any other person.….The only exception made by the word "other" which it is proposed to leave out is the person himself, and therefore all that the Amendment would do would be to enable the claimant to receive compensation from himself.
THE EARL OF LAUDERDALEI look upon it as purely drafting, and am prepared to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
1084
§
EARL DE LA WARR moved, at the end of the clause, to insert the following new subsection:—
(4) In any application to the sheriff under this or the immediately preceding section he shall have power to award expenses to or against any party to the application.
The noble Earl said: I will not take up any time over this Amendment. It is one which I said I would move as a substitute for Lord Novar's Amendment.
§
Amendment moved—
Page 4, line 12, at end, insert the said new subsection.—(Earl De La Warr.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3:
§ Schemes for drainage works.
§ 3.—(1) Where the Department of Agriculture for Scotland (hereinafter referred to as the Department) are of opinion.…
§ (3) In fixing the amount of the cost recoverable by the Department and in apportioning that amount or in apportioning the cost of maintenance among the lands comprised in the area affected by the scheme, the Department shall have regard to the benefit expected to accrue to such lands by reason of the execution of the scheme, and shall not apportion to any lands an amount in excess of the estimated value of the benefit so expected to accrue to such lands ….
§ (9) Every scheme made under tins section shall so soon as all claims for compensation have been agreed on or determined, and if the Department propose to proceed with it, be laid before both Houses of Parliament, and if an Address is presented to His Majesty by either House of Parliament within the next subsequent twenty-eight days on which that House has sat after any such scheme is laid before it praying that the scheme may be annulled it shall be void, but without prejudice to the validity of anything previously done thereunder or to the making of a new scheme.
§ (10) When a scheme has been laid before Parliament in accordance with the foregoing subsection, and the period within which an Address praying that the scheme may be annulled has expired and no such Address has been presented, the Department may decide to proceed with the execution of the works in accordance with the scheme, and if they so decide shall intimate such decision to the persons on whom copies of the scheme shall have been served in pursuance of subsection (4) of this section, and any compensation agreed upon or determined in pursuance of the foregoing provisions of this section shall then become due.
1085§ (12) The cost incurred by the Department in maintaining drainage works executed in pursuance of a scheme under this section shall be recoverable by the Department from the owners of the lands comprised in the area affected by the scheme according to the apportionment therein contained, and any sum due by any such owner in respect of such cost shall, if the Department so decide, be levied on and recovered from such owner by the rating authority in like manner in all respects as if it were a rate leviable by that authority and shall be paid over by the rating authority to the Department.
§ EARL DE LA WARRMy Amendment, to subsection (1), is purely drafting and consequential.
§
Amendment moved—
Page 4, line 14, leave out ("(hereinafter referred to as the Department)").—(Earl De La Warr.)
§ On Question, Amendment agreed to.
§ VISCOUNT NOVAR moved, in subsection (3), after "lands" where that word fourthly occurs, to insert "whether in the case of capital cost or in the case of maintenance cost." The noble Viscount said: It is quite clear that in the Bill capital cost is adequately dealt with, but it is not so clear that maintenance cost is equally dealt with. It is very necessary to be perfectly clear in this matter. These works are going to be executed by a public Department, no doubt in their usual costly and incompetent manner. We have had considerable experience of this in my country, and the work done by a public Department always costs about twice as much as when it is done by anybody else, and it is not done in nearly so practical a manner. Therefore, these safeguards have to be very carefully watched. You may have It work done which is a dead failure, and yet the cost of the operations will be saddled on the land for eternity unless some safeguards are introduced. This is one of them. But I am quite ready to let it stand over till Report.
§
Amendment moved—
Page 5, line 17, after ("lands") insert the said words.—(Viscount Novar.)
§ EARL DE LA WARRWe think that the point is already covered in the Bill, but we will certainly consider it.
§ VISCOUNT NOVARI think it may be, but I want to make sure. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
1086§ LORD FAIRFAX OF CAMERON moved, in subsection (9), to leave out "and if an Address is presented to His Majesty by either House of Parliament within the next subsequent twenty-eight days on which that House has sat after any such scheme is laid before it praying that the scheme may be annulled," and to insert "forthwith and unless a Resolution approving the scheme is passed by both Houses of Parliament within the next subsequent twenty-eight days on which both Houses have sat after such scheme is laid before Parliament the scheme."
§ The noble Lord said: This provides for an affirmative Resolution by Parliament. Subsection (9) of this clause provides for schemes made by the Department being laid before Parliament before they can be put into operation. If no Address is presented by either House within the next twenty-eight days praying that the scheme be annulled, it is automatically approved. My Amendment, on the contrary, provides that the scheme must be affirmed by a Resolution of both Houses of Parliament. This procedure draws direct attention to the scheme, which might otherwise have slipped through unobserved. It should be noted that there is no legal appeal against the Department's scheme, except as regards the amount of the cost recoverable. An owner or occupier who is dissatisfied with the amount of the cost allocated to him by the scheme can demand that this question of cost shall be submitted to arbitration, and the finding of the arbitrator is final. It should further be noted that subsection (3) of this clause expressly provides that in apportioning the costs there shall not be allocated on any land an amount in excess of the estimated value of the benefit expected to accrue to such land. To the extent to which the cost of the scheme exceeds the benefit which it is estimated will accrue to the respective lands the Treasury has to bear the cost.
§ It may be argued, therefore, that no individual owner or occupier is in need of a right of appeal against the scheme, for he cannot be made to pay more than the benefit which he is expected to receive, and as regards that benefit he has the right of appeal to an arbitrator selected from a panel appointed by the Reference Committee. There is one point, however, in this argument which is over- 1087 looked, for, whilst it is true that no owner can be asked to pay a greater share of the cost of carrying out the drainage works than the expected benefit thereunder, each owner has to pay his share of the full cost of the future maintenance of the works. No Treasury grant is available to meet these maintenance costs, although they will be very heavy. The only appeal against the scheme is in Parliament, and therefore Parliament should be asked to affirm these schemes by Resolution, instead of their being allowed to slip through unobserved. There are many precedents for an affirmative Resolution in Parliament, and we feel that it is very necessary in this Bill.
§
Amendment moved—
Page 7, line 37, leave out from ("Parliament") to ("shall") in line 41 and insert the said new words.—(Lord Fairfax of Cameron.)
§ VISCOUNT NOVARThis is as important an Amendment as has been moved. I admit it is a cumbersome kind of security for the individual, but I do not see what other is available, and some security for the individual is absolutely necessary, otherwise it means a free hand to the official under whose heel the private individual finds himself. Perhaps I ought to offer an apology for referring to any official or to the Civil Service. I noticed that the Chancellor of the Exchequer in another place in Committee on the Health and Labour Estimates spoke of the invariable custom which screens officials of all Departments from Parliamentary criticism. In pre-War times that was so. Now, however, new spheres are occupied by the Civil Service. Its numbers are enormously increased, so also its power to exercise responsibilities which formerly actually rested on a Minister if he had any executive capacity.
The Circumlocution Office of "Little Dorrit" may in certain respects remain as it is, but its activities are very different. The Lord Chief Justice has dealt with the tyranny of the Civil Service; a Minister has exposed the incompetence of his own Department: to them both the community owes its thanks. Few Ministers nowadays can adequately supervise all their officials and sub-departments, and so the old salutary custom to which the Chancellor of the Exchequer 1088 referred must necessarily be more honoured in the breach than in the observance. The community must have the power to deal with those in actual authority. The dictum that the King can do no wrong cannot be extended to those on whom the power of modifying and enacting legislative regulations has been conferred by Acts of Parliament. Therefore I hold that in this matter there must be some check on the operation of the Civil Department and the Service, and I cordially support the Amendment.
§ LORD DYNEVORI strongly support this Amendment. Drainage schemes may be very costly, and may be a very heavy burden on a great many agricultural landowners. I think, therefore, that every precaution ought to be taken, and every publicity given to a scheme before it becomes law.
§ EARL DE LA WARRThe noble Lord, Lord Fairfax, told your Lordships what were the safeguards regarding compensation in this clause. I shall not follow him into that because we are not really discussing that matter. This Amendment really accepts the structure of the clause but is an attempt to alter the means by which Parliament deals with its operation when a scheme is actually laid before it. The question is whether we should have an affirmative Resolution or a negative Resolution of the House before a scheme can go through. A number of schemes will have to be prepared. There will probably be three, four, or five schemes a year. If this Amendment is carried the Government of the day will be in the position of having to allot time not only in your Lordships' House but in another place (and your Lordships know how busy the House of Commons is) for a full discussion as to whether a particular drainage scheme is to be carried through.
The noble Lord said that there are a great number of precedents for that mode of working. I have made inquiries and I must confess that I have not been able to find any precedents for working a scheme of this kind in that way. We appreciate the desire of the noble Lord to see that the individual is protected against the Gorgon of the Civil Service, but I would submit that the machinery we propose does provide that protection. It states that before a scheme is put into 1089 operation it must be laid on the Table of your Lordships' House and of the House of Commons for a month. Surely it is clear, therefore, that it would be impossible for a scheme, to use the words of the noble Lord, Lord Fairfax, to slip through unobserved. Imagine a scheme in preparation in Scotland with a landlord vitally affected. He first has the power of appealing to the Department. If he fails he will be in a position to approach any member of your Lordships' House or of another place and have the matter raised during the month. Then, if he does that, even under our scheme there will have to be what amounts to an affirmative Resolution of the House. I would ask the noble Lord not to press this Amendment. It will certainly hold up the whole operation of this Bill very severely, and His Majesty's Government are most anxious that this new insertion should not be made.
§ LORD DARLINGThis, I think, raises a question rather larger than one might at first sight imagine. I understand that there is a dispute between the noble Earl opposite and the noble Lord who moved the Amendment and, I think, between him and the noble Viscount, Lord Novar, as to whether there is any precedent for this Amendment. I am not unduly attached to precedents, I hope, but it seems to me that if the practically invariable rule with matters of this kind is that the scheme should lie upon the Table of both Houses and should only become law if no objection is taken in either House of Parliament, it would be a somewhat violent departure to say with regard to this particular matter that what is the rule with practically all other matters should not prevail. Before I am called upon to vote I should like to know authoritatively from whoever can give the information whether this Amendment would establish an absolutely new method of dealing with business of this kind. I know what the Lord Chief Justice has written and I agree with most of it, but if this scheme affecting so many people interested in land had to be laid on the Table of this House and could not become law unless it passed this House, I cannot think that it could slip through without any noble Lord having noted it at all and objected to it. That is only one part of the matter. I must say that the argument that it could not happen appeals to me, but I should very much 1090 like to know whether we are here asked to do something which is absolutely outside the ordinary practice.
§ VISCOUNT BERTIE OF THAMEThe noble Earl, Lord De La Warr, I understand, rather challenged what my noble friend Lord Fairfax said as to precedents. I have made inquiries and I am told that in the Road Traffic Bill and the Church Enabling Act there are certainly precedents for this, and possibly in the Education Bill and the Local Government Bill of 1929.
§ LORD BANBURY OF SOUTHAMThis Amendment has often been moved in another place, and it has occasionally been accepted though I cannot say for the moment on which occasions. It is not so entirely new as my noble and learned friend would think. It is a very much better proposal than the other for this reason, that in the House of Commons the other proposal that the scheme should lie on the Table and become law, unless it is objected to is absolutely useless. It cannot come on until after eleven o'clock, there are very few members in the House, the Government take care that they shall have a majority, and the consequence is that the protection is absolutely useless. In your Lordships' House it is rather different. If you look through all the Papers which you can get if you ask for them, you can find out whether or not there is a particular matter which can be objected to. But how many of those in your Lordships' House look through the Papers? When I first had the honour of being a member of your Lordships' House I looked through the Papers, but I have rather given it up because there are such a large number that it almost requires a special secretary to look them up for you. On the other hand, this proposal is a very simple thing. The scheme is to lie on the Table and everybody knows it. If it is good it will pass; if it is bad it will not pass. I hope the Amendment will be accepted.
THE UNDER-SECRETARY OF STATE FOR INDIA (EARL RUSSELL)I have had some experience of this question of an affirmative Resolution both in the Road Traffic Bill and in the Mental Treatment Bill that we were dealing with. Might I first say a word about the argument of the noble Lord who has just sat down? 1091 He said that in the House of Commons the mere negativing of a Resolution or scheme which was laid would be useless because it would come on after eleven o'clock when nobody would be there except a majority of Government supporters. Is not that equally true of an affirmative Resolution? That is also business that can be taken after eleven o'clock and would, I suppose, be taken in the same way. There is just the same chance in the one case as there is in the other.
§ LORD BANBURY OF SOUTHAMThat shows the advantage of this House.
EARL RUSSELLVery likely; but the noble Lord's argument was that it was futile in another place, and I was only pointing out to your Lordships that if the one process were futile so probably would the other be. There are some precedents, very few, for the affirmative Resolution. In the Road Traffic Bill a very clear distinction was drawn. Your Lordships' House required an affirmative Resolution—I am speaking from memory and I think I am right—only for the highway code which you regarded as a matter of such importance that it ought to have an affirmative Resolution. All the innumerable regulations and orders that might be made under the various other clauses of that Bill were only in the ordinary way to lie on the Table. I am not, as a matter of democratic government, opposing in themselves affirmative Resolutions if they serve any useful purpose, but honestly I cannot say that they do. I should very much prefer, in order to prevent any lingering apprehensions that people sometimes have—and perhaps I have had them myself sometimes—of these things slipping through unnoticed; that we should, at any rate in this House, refer them to some body like the Special Orders Committee, so that we could get an assurance from that Committee, and might know if there was anything to which attention required to be called.
There are in the course of a year so many hundreds of rules and regulations of this kind laid on the Table which are so insignificant and so obvious that it would be quite absurd to require an affirmative Resolution in regard to them. This is a comparatively small matter. It is a case of land drainage in Scotland and affects a comparatively small issue. I think your Lordships would be very 1092 unwise from the point of view of precedent—and I think I might perhaps obtain some support for this from the Front Bench opposite—to insist upon an affirmative Resolution. It would not only embarrass this Government, but it would embarrass future Governments and would be a precedent not only for this but for future Governments. I do not think it would tend to make public business more successful, and I hope your Lordships will not be led away by fallacious and, I think, rather specious arguments, but will resist the Amendment in the case of this Bill.
§ THE MARQUESS OF SALISBURYI quite understand the appeal which the noble Earl who has just sat down has made to the Front Bench on this side, and no one is more entitled to make such an appeal than he himself, because he has watched the proceedings of your Lordships' House and the methods of legislation for many years. I am quite willing personally not to close my mind upon the issue which is before your Lordships, although I am going to make a suggestion in a moment. Let me say one word about the difference between the affirmative Resolution and the other method of treating these matters. I quite agree with my noble friend Lord Banbury, that the method of affirmative Resolution is much more valuable than the other way, and much more important. The method of negative Resolutions—I mean merely laying schemes on the Table of the House and leaving any member of either House of Parliament to intervene—has become very largely so much a matter of form as to cease to be very effective. I think that is a most profound misfortune. Any method which can be hit upon of keeping the control of Parliament over legislation, and yet on the other hand avoiding the immense trouble of getting a whole Bill through Parliament, is, I am quite sure, a direction in which the development of legislation ought to proceed. It is the real issue from the dilemma.
You have, on the one hand, the obligation of preventing anything being done to the detriment, or what is thought to be the detriment, of His Majesty's subjects without the consent of Parliament. You have that danger on the one hand, and you have the immense difficulty of getting a Bill through all its stages in both 1093 Houses of Parliament on the other; and if you can find some method which will preserve the control of Parliament and yet avoid all the difficulties of complete legislation, then I think that is a course which ought to be cherished and pursued. Of course, it ought not to be applied to matters of great importance. They must go through the difficulties of Bills as before. But if it can be shown that the method of the purely negative Resolution—merely placing proposals on the Table of the House and leaving anybody to object—has become inoperative, then 'we do not succeed on the other side of the dilemma. I am not sure that my metaphors are not a little confused, but at any rate the noble Earl will follow what I mean.
I must say that I think this case is one of much more importance than was suggested by the noble Earl who has just sat down. He talked about regulations, but these schemes of land drainage are evidently not regulations such as were put into the Road Traffic Bill. Small regulations adjusting the operations of a Bill are one thing, but schemes of land drainage which affect perhaps very considerable areas and very important interests are quite another. One case is only machinery; the other case is definitely in the nature of legislation affecting the rights of His Majesty's subjects. I must say that, though it, hardly ever happens, I think the noble Earl in this respect over-stated his case, and I cannot accept his analogy. It appears to me, therefore, on the face of it that this would come within the class of case which ought to be covered by something more than merely laying the thing upon the Table of the House. I will make this suggestion to your Lordships. I admit the difficulty of drawing the line, but I suggest that we put my noble friend's Amendment as it stands into the Bill, and that then we should consider the matter between now and Report. We will do our best to look at this in a reasonable spirit, and if the Government can convince us we have gone too far we will consider with our friends whether we cannot modify it at a future stage of the Bill.
§ EARL DE LA WARRAfter the very reasonable attempt of the noble Marquess, Lord Salisbury, to meet us I confess I find myself in considerable difficulty. We do consider this matter as one of 1094 most vital importance. Perhaps, with out repeating myself, I might mention one further argument to your Lordships. I am inclined to agree with the noble Marquess who has just sat down that perhaps my noble friend Lord Russell did treat this as being not quite so important as it really is. On the other hand, I would suggest to your Lordships that the fact that these schemes are important and that, as the noble Marquess said, they affect very large interests, should surely convince your Lordships that there is no chance of those large interests being overlooked by the two Houses of Parliament. They will be interests which are eminently in a position to lay their case before Parliament, either through their Members of Parliament or through your Lordships. Many of the persons concerned might even be members of your Lordships' House.
Therefore I would ask the noble Lord who is moving this Amendment, and the noble Marquess, Lord Salisbury, to allow us to reverse the procedure he suggested and keep this subsection in the Bill. Then I will undertake to reconsider the matter before Report and we can have it gone into again. If I have not argued the question adequately this time, I will endeavour to do so next time, and convince your Lordships then, better than I am afraid I have done this evening, that this Amendment will really have the effect, not so much of giving greater protection to the individual than he gets under the clause as it stands but of making the machinery cumbrous, heavy and difficult to operate. It may have the effect, too, of holding up a large number of schemes which we regard as very important and desire to go ahead with as quickly as possible.
§ VISCOUNT NOVARI greatly prefer that the boot should be on the other leg. I thank the Leader of the Opposition for the manner in which he has tried to help us out of our difficulty. It is not a matter relating merely to this Bill, although I think we have suffered from the kind of work proposed under the Bill far more in Scotland than has been the experience in this more fortunate land. But it goes far beyond this Bill. Before the War in another place the pages that were covered with matters of this kind and were left to lie upon the Table were increasing year 1095 by year. There are so many of them now, and the amount of business included in the things allowed to lie upon the Table is so enormous, that it really is impossible to follow them. It really has become an automatic procedure. It is very seldom that anything lying on the Table is ever challenged. It is useless to do it in the other place. Probably if the attendance were better in your Lordships' House questions might be raised here, but I doubt whether it is of more practical value to have these measures upon the Table in this House than it is in the other House, where it is useless. It is time the Government seriously considered the point, not merely because of the mass of the Bills themselves, but of the greatly increased importance of the undertakings carried through by Government Departments and the powers that Government Departments, as the Lord Chief Justice has pointed out, have of altering Acts of Parliament. The trouble has risen to such a pitch that I consider it ought to be dealt with. I think that to give the Government time to consider the matter before Report, as is proposed by the Leader of the Opposition, is the right way, and I hope the noble Lord will go to a Division.
§ EARL DE LA WARRI take it that the noble Lord will not agree to my suggestion that we should keep the clause as it stands and that the Government should consider this?
§ VISCOUNT NOVARNo.
§ THE MARQUESS OF SALISBURYI think the noble Earl should consent to the suggestion I ventured to make to him. We did our best to put it in as conciliatory a way as possible. We do not absolutely close the door, but I am sure he must see that the feeling of the Committee is that they are anxious to put the Amendment in the Bill. Then we can consider what the final form ought to be between this and the next stage of the Bill.
§ EARL DE LA WARRWell, we must admit when we are defeated. I am quite sure that if I went to a Division I should be beaten. I quite realise that the noble Marquess, the Leader of the Opposition, has done his best to meet us.
§ THE MARQUESS OF SALISBURYI am much obliged to the noble Earl.
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 8, line 2, leave out from ("subsection") to ("the") in line 5, and insert ("and has been approved by both Houses"). —(Lord Fairfax of Cameron.)
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clauses 4 and 5 agreed to.
§ Clause 6:
§ Service of notices, etc.
§ 6. Any notice or other document required or authorised by this Act to be served on any person may be served by delivery to that person or by post, and service on the known agent of any person shall be deemed to be service on that person.
§ LORD FAIRFAX OF CAMERON moved, before "post," to insert "registered." The noble Lord said: The insertion of the word "registered" will bring this clause into line with a similar clause in the English Bill. Quite apart from that, if legal proceedings are to follow in the event of a person disregarding any notice served upon him it is highly desirable that there should be unimpeachable evidence that the notice has been served. I hope the noble Earl will accept this Amendment.
§
Amendment moved—
Page 9, line 24, after the second ("by") insert ("registered").—(Lord Fairfax of Cameron.)
§ EARL DE LA WARRI will not say that the insertion or the non-insertion of this word is really of vital importance to the Bill. At the same time it would be a large departure from the usual practice in legislation of this character. Clause 6 has been drafted in conformity with the general law and is based on Section 26 of the Interpretation Act, 1889. Perhaps I may be allowed to read to your Lordships the words of that section. They are:
Where an Act passed after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve,' or the expression 'give' or 'send,' or any other expression is used, then, unless the contrary 1097 intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.If your Lordships make this Amendment we shall be departing from this method of procedure which has been going on for a very long time, and therefore I would suggest to the noble Lord that unless he feels very strongly on this matter he should not press it.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clauses 7 and 8 agreed to.
§ Clause 9:
§ Interpretation.
§
9. In this Act unless the context otherwise requires:—
The expression "watercourse" shall include any river, stream, ditch, drain (whether open or closed), cut, culvert, dyke, or sluice:
§ LORD DYNEVOR moved, in the definition of "watercourse," to leave out "river." The noble Lord said: The chief point of this Bill is that watercourses are to be kept open and clear, and the Bill defines a watercourse as a "river, stream, ditch, drain," etc. In 1926 the Government of the day introduced a Land Drainage Bill for England and Wales, the object of which was to keep drains open and clear. The definition of a drain was "any river, stream, ditch, drain," so the two Bills have been practically introduced with the same definition, the only difference being that this Bill talks about watercourses and the 1926 Bill talked about drains. The definition in both cases is the same. I took exception to the definition in the 1926 Bill and I moved an Amendment to delete the word "river." I told my noble friend Lord Bledisloe, who was in charge of the Bill, that you could not expect landowners to go to the expense of cleaning out rivers like the River Severn. What surprises me most on reading through the debate of 1926 is to find that the noble and learned Lord, Lord Parmoor—who I regret to see is not in his 1098 place—moved an Amendment to delete not only the word "river" but "stream" as well. I should have asked him, if he had been in the House at this moment, why he wants rivers and streams in this Bill. I can only imagine that it is due to the change from Opposition to Office.
§ Your Lordships did not accept the Amendment moved by Lord Parmoor, but you did accept my Amendment, taking out the word "river." I am proposing by this Amendment to do exactly what I did in 1926. On the Second Reading of this Bill I said that to call upon landowners in Scotland to clean out such rivers as the Tweed, the Clyde and the Tay was ludicrous. Agricultural landowners are certainly not well off at the present time, and the Bill may impose upon them and upon occupiers very heavy burdens—in fact, more than their shoulders can carry. In order to remove that danger I am moving to take out the word "river." Agriculture is at present at a very low ebb. The Government is doing nothing to assist, and it ought not to add to the difficulties and burdens now upon the shoulders of agriculturists. I assume that in the Budget on April 14 the Government will add still further to the burdens of agricultural landowners. I hope that your Lordships will agree to do what you did in 1926 and will delete the word "river." I beg to move.
§
Amendment moved—
Page 10, line 34, leave out ("river").—(Lord Dynevor.)
§ EARL DE LA WARRI am sorry that the noble and learned Lord, Lord Parmoor, is not in his plane, but unfortunately he was not very well and had to leave. I think, however, I shall be able to make clear to the noble Lord before I sit down what my noble friend's position would be with regard to this Amendment. In our view it is most essential that we should keep the word "river" in the definition of "watercourse," for the purposes both of Clause 1 and of Clause 3. The Bill deals with flooding or danger from flooding and, so far as the desirability of so doing is concerned, it really does not matter in the least whether the watercourse that is causing the damage is called a river or a stream.
Perhaps I might deal for the moment with the fear that I think is in Lord 1099 Dynevor's mind. He mentioned on the Second Reading and again to-day that he is afraid that landowners will be called on to clean out rivers like the Tweed, the Clyde and the Tay. There is no possibility of this happening under the Bill and, if he will look at page 2, he will see why. In subsection (4) of Clause 1 three points are mentioned on which the sheriff has to satisfy himself before he orders a scheme to be carried out. The second point is this:
that the person whom the notice has been served is unreasonably refusing or delaying to take such steps as may be necessary to remedy or prevent such injury.The third point is:that the cost of carrying out any operations necessary to remedy or prevent such injury is such that it may reasonably be borne by the parties.Later on, in subsection (5), he will see that, if the sheriff is of opinion that the parties concerned cannot reasonably be expected to carry out the scheme at their expense, he shall report his conclusion to the Department of Agriculture for Scotland, and it will then be open to them to consider whether or not they will carry out the scheme under Clause 3. I think, therefore, that the noble Lord will see that the individual landowner is explicitly protected against an unreasonable demand to clean out such rivers. Actually in Scotland all the schemes that are really of importance refer to rivers, and, therefore, if we had to except rivers from Clause 1 we should almost be making the Bill inoperative in a number of eases, and if we had to except them from Clause 3 we should make that clause almost a dead letter.The noble Lord referred to the English Act of 1926. Here I think I shall be able to show him that my noble friend Lord Parmoor's Amendment was not really so inconsistent with this clause as he thinks. It is true that rivers were excepted from that Act, but the exception did not apply where what is required could be done 'by a scheme under Section 16 of the Act of 1918, which corresponds to Clause 3 of this Bill. In the second place, the exception of rivers from the Act of 1928 does not apply where the drain is under the jurisdiction of a drainage authority or board of conservators that is exercising its powers, except with the consent of that authority. It is thus obvious that Section 2 of the 1100 Act of 1926 is not in the least analogous to the provisions of the present Bill. I would therefore ask the noble Lord not to insist upon this Amendment. The clause, as it stands, is not so completely out of touch with the Act of 1926 as I think he supposed, and his Amendment would really invalidate the Bill and make it almost inoperative.
§ LORD DYNEVORI do not know what opinion other members of your Lordships' House have formed, but I think this is a very important Amendment. I still cannot see how the landowner in Scotland is safeguarded. The noble Earl tried to impress upon my mind that the sheriff would be a very kind gentleman and would not encourage any objection able demands on individuals. But, so far as I have read the Bill, the Department of Agriculture has very strong powers for drainage schemes. So far as I can see, it can do very much what it likes and can bring rivers of the size that I have mentioned into its schemes. I should like to hear some other noble Lord on the question. For the moment I am inclined to press the Amendment.
§ LORD DANESFORTI should like to ask if I am right in saying that the position is this: that the question whether a river is to be cleansed or not is left to the sole discretion of the sheriff. If he is a reasonable person, he will probably say that the cost of cleansing a very large river should not come under schemes of this sort. If he takes a different view, he can say that that scheme must be undertaken, and, although the cost may be exceedingly large and onerous upon the owner, that scheme is to be carried out. Is it right that the sheriff should be left the sole judge of whether a river is to be the subject of a scheme or not? It seems to me to give the sheriff an extraordinarily wide discretion and, therefore, if my noble friend goes to a Division I shall certainly support him.
§ LORD DARLINGI do not feel quite sure that even if Lord Dynevor's Amendment be carried the people who are riparian owners in Scotland will be so safe as he supposes, because as I understand he only desires to leave out the word "river." This definition would then read: "The expression 'watercourse' shall include any stream …." What is 1101 the definition of a stream as opposed to a river? I do not know. I think if I were to search in literature—I have not the time to do it now—I could find the Thames called a stream over and over again. There are rivers in Scotland quite as large and as full of water as the Thames, and I fancy it would not be absolutely inappropriate to describe the Solway as a stream, or the Tay or the Tweed. Therefore, if the word "river" be left out, I am afraid that to live on the banks of one of these rivers might expose one to an order at the hands of the sheriff to clean it out and make it something totally different from what it is. What I have said may possibly lead the noble Earl to accept the Amendment, because he will still have the word "stream" in the Bill, which will suffice for the sheriff to ruin many a riparian owner.
§ THE MARQUESS OF SALISBURYI am rather inclined to suggest to my noble friend that he should not press his Amendment, for two reasons. In the first place there is the speech of my noble and learned friend Lord Darling, to which we have just listened. He has pointed out that there is some doubt whether the Amendment would really carry out what is intended. The other reason is that I do not know how far my noble friend is familiar with Scottish opinion in this matter. I am not, and I waited to hear whether those who represent Scottish opinion here would take the lead in suggesting what course we ought to pursue in reference to this Amendment. We have not heard any of that advice forthcoming, and, therefore, I hope that in the circumstances my noble friend will not press his Amendment at this stage of the Bill. Between now and the Report stage he will be able to see whether his drafting is as complete as it generally is, and he will also be able to find out whether noble Lords from Scotland take the same view on a rather intricate point.
LORD BELHAVEN AND STENTONI would also suggest that this Amendment should be withdrawn and considered at a later stage of the Bill. I own land on the Upper Clyde, and I ask myself whether we want a big drainage Bill or not. From the present appearance of the Upper Clyde I know that it is imperative in the near future to have a big 1102 drainage scheme, but the fact is that landowners are not unnaturally fearful of the consequences of a permanent burden being put upon the land. The Government may not be aware that the land is taxed practically to its fullest capacity, although I hear tales of still further taxation in the coming year. Of course, we are all of us in Scotland very keen to see something done for the country. All Scottish Peers should be really anxious to pass a beneficial Drainage Bill, and we would be all of us very glad to assist the Government in this matter, were it not for the fear at the back of our minds of the consequences of the resulting financial burden. For instance, we know that a small part of the actual estimated cost of such a scheme—it would be a capital charge of course—would be laid upon us, and then afterwards we have to consider the cost of maintenance which will go on for many years. I venture to suggest to Lord Dynevor that he should not now press his Amendment, so that, as was suggested by the noble Marquess, we who come down from Scotland may further consider the matter and make up our minds whether this is a beneficial proposal or not, and how far we are prepared to support it.
§ LORD DYNEVORI am quite well aware that there was and is great difficulty in actually defining what is a river. I remember the argument on the Bill of 1926, and Lord Bledisloe said then that the kind of river which he wanted in the Bill was one that somebody could jump over. I could not withdraw my Amendment to take out 'river' at that time, because I did not think it possible to put in an Act of Parliament the jumping power of various members of your Lordships' House. Therefore we took out "river" and left an "stream." I suppose it is possible that a stream is a river and a river is a stream, but I do not like to argue it in, the presence of Lord Darling. As, however, the voice of Scotland seems to be rather silent on this subject, I will follow my noble Leader's advice and not press my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 agreed to.
§ Remaining clauses agreed to.