HL Deb 06 June 1939 vol 113 cc282-97

Order of the Day for the Second Reading read.

6.6 p.m.


My Lords, I beg to move that this Bill be now read a second time. The Bill represents a further stage in the task of consolidating and bringing up to date the Statutes for whose administration the Ministry of Health are responsible. The Bill is based upon the work of the Central Advisory Water Committee which was appointed in 1937 by Sir Kingsley Wood, who was then Minister of Health, after consultation with other Ministers. That Committee was under the Chairmanship of the noble Lord, Lord Milne, and it was appointed to advise the Government Departments on questions of water policy. In 1936 a Joint Committee of both Houses of Parliament under the Chairmanship of the noble Lord, Lord Eltisley, and among whose members was included the noble Lord, Lord Mancroft, recommended in their Report to the Minister of Health that the amendment of the existing law relating to water should be dealt with in some such way as had been adopted in the case of the revision of the Local Government Acts. In accordance with this recommendation of the Joint Committee to the Minister of Health, this Central Advisory Water Committee was set up.

The object of the Bill is to gather up into one Act the general law regulating the supply of water by local authorities and water companies in England and Wales, to add to it the most suitable of the common form provisions usually included in modern Local Acts, and thus to provide a consolidated and modernised waterworks law which will apply generally, as far as this is possible, to statutory water undertakings. There has been no general revision of the law regulating the supply of water by Local Act water undertakers since 1863 and no comprehensive revision since the Waterworks Clauses Act of 1847. Since these times, the conditions affecting water supply have changed so greatly that the scope of these Acts of 1863 and 1847 has become quite inadequate. The drawbacks have been overcome, to some extent, by Parliament conferring special powers in Local Acts to enable water undertakers to deal with conditions not covered by the General Acts, but this method is not conducive to that uniformity and continuity of practice which is desirable for such an important service as public water supply.

Turning to the Bill itself your Lordships will see that it is divided into a main part and three Schedules. The Bill itself contains twenty-three clauses which, it is intended, shall be of general operation. It includes an important simplification of the procedure of the Gas and Water Works Facilities Act, 1870, and of Section 303 of the Public Health Act, 1875, under which water companies and local authorities may obtain minor powers by Provisional Orders. The Bill proposes that, provided there is no opposition by interested local authorities or other water interests, powers for the carrying on of water undertakings should be obtainable in future by order of the Minister of Health, but that where there is opposition the Orders should still be provisional. The proposed procedure does not extend to the major powers of compulsory acquisition of land or water rights, and it would still be necessary, as now, for water undertakers to promote Private Bills for those purposes. As I have already stated, the existing procedure is obsolete and unnecessarily rigid and expensive, and its simplification should be of benefit both to water undertakers and to consumers. Other clauses in this main part of the Bill reproduce, with some minor alterations, the Supply of Water in Bulk Act, 1934, and the Water Companies (Regulation of Powers) Act, 1887, and provide a simplified procedure, based upon provisions frequently allowed in Local Acts, for the revision of water rates and charges, which will extend and supersede the Water Undertakings (Modification of Charges) Act, 1921. The Bill also includes powers which will facilitate the supply of water in rural areas and also the protection of public water supplies from the risk of pollution.

The First Schedule to the Bill is intended to replace the Waterworks Clauses Acts of 1847 and 1863, which are now incorporated with the great majority of Local Water Acts and Orders, and in part with the Public Health Act, 1936. Much of the Acts of 1847 and 1863 has become obsolete, but the Schedule includes all the effective sections in those Acts and, in addition, a number of new clauses representing the most suitable of the provisions amending and extending those Acts that are commonly included in modern Local Acts. Part X of the Schedule contains some important amendments of the powers of consumers to break open streets. Under the existing law, the consumer is entitled to break up the street between his premises and the water main for the purpose of laying a communication pipe, and is responsible for the maintenance and renewal of the pipe. It is proposed that the undertakers shall in future be exclusively responsible for the execution of works entailing the breaking up of highways (the cost of laying the communication pipe will be recoverable from the consumer) and for the maintenance and renewal of the pipe. It is proposed that the First Schedule shall be incorporated with every future Water Act or Order, that water undertakers shall be empowered at any time to apply to the Minister for an Order applying the provisions of that Schedule to their undertakings, and that at the expiration of five years the Minister shall be enabled, on his own initiative, to apply those provisions to those water undertakers who have not previously adopted them.

Your Lordships will see that considerable simplification and shortening of the law will be effected by the Bill. The Third Schedule of the Bill repeals seven Acts of Parliament, and the 125 clauses of the Bill and the First Schedule replace some 158 sections in the existing General Acts and embody, in addition, some 6o sections which are now commonly included in Local Water Acts. The Bill, therefore, combines consolidation with a limited amount of amendment. The details of the amendments made and the Committee's reasons for recommending them are set out fully in the Report, which contains, in an Appendix, notes on the clauses of the Bill. In this respect, the procedure follows exactly the course adopted by the Local Government and Public Health Consolidation Committee in the preparation of the Bills for the Local Government Act, 1933, the Public Health Acts, 1936, and the Food and Drugs Act, 1938. His Majesty's Government are satisfied that this procedure has proved satisfactory and acceptable, and that the measures which have resulted from the previous Bills have proved of very substantial value to local government and public health administrators, and to the general public.

It is proper that a Bill of this character should receive the close attention of Parliament. His Majesty's Government therefore propose to follow the procedure of previous Bills, and to invite your Lordships and the members of another place to appoint a Joint Select Committee to undertake a detailed examination of the clauses. The Bill is a non-Party measure and it is believed that its general principles will be welcomed not only by water undertakers but also by other interests concerned, including industry and the water consumers.

Before I bring my remarks to a close I consider it desirable to emphasize that it is not the Government's intention to lay down a complete and perfect code of law to cover all questions affecting public water supply. To do this might arouse controversy and so defeat the object of the Bill, which is to gather together in an intelligible form non-controversial questions and provisions regulating the supply of water by statutory water undertakers, and so to provide a general and simplified code which would be both suited to the needs of the undertakers themselves and fair to the general body of consumers. Any attempt to include extensive amendments of the law in the present Bill would be foreign to its purpose and might well jeopardize its chance of reaching the Statute Book. I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Bridport.)

6.17 p.m.


My Lords, this Bill appears to seek to consolidate certain Acts, and to make amendments, and very important amendments, in a number of enactments relating to water undertakings. Those concerned with the supply of water are somewhat concerned at the bringing forward of this measure at this particular time. May I briefly refer to the history of this question before the introduction of this Bill? I venture to say a word or two on behalf of the County Councils' Association together with that of the Municipal Corporations. I would like to state what has occurred. On April 5 the County Councils' Association were asked for their observations on the draft, and were then informed that they would be expected to give a reply embodying their views by May 6. When that letter reached the County Councils' Association prints of the Bill were not even available, and they did not become available for some time afterwards. No time, therefore, has been given to those who will be mainly responsible under the Bill to investigate the effects of the Bill on the special clauses contained in Private Bills, clauses which are embodied in nearly every Private Act, and which should be very closely considered, for Local Water Acts will come under the domination of this measure once it becomes an Act.

The Ministry of Health were informed that the draft of so complicated a measure could not possibly be fairly and properly considered at such short notice by the County Councils' Association and the Association of Municipal Corporations. I may add that the urban district councils and rural district councils also registered protests in the same way. Yet the Bill was introduced on May 24 and to-day, on June 6, we are being asked to give it a Second Reading. I do not wish to suggest that the associations concerned are not in sympathy with a consolidation measure of this character, because consolidation well carried out leads to simplification and improvement of the law. It would be strange indeed if bodies of this character were not in favour of a change of that kind. Nevertheless, I am charged with the duty of protesting against the unseemly and unnecessary haste which is being shown in regard to this measure.

This Bill is not adoptive. It is going to be compulsory regardless apparently of special provisions contained in many Local Acts. Therefore I do seriously suggest that consideration of this Bill should be postponed. All the bodies concerned desire more time. The Bill will amend the existing general law. That may be good—doubtless it is good—but it also creates alarm and resentment. The fear is that the Bill will become law without proper debate and that irksome conditions will be placed on undertakers generally. The Bill enables amendments of Local Acts to be ordered by a Minister without the consent or approval of the local authorities concerned. That is a far-reaching overriding power which I certainly think requires investigation and consideration, and I was very glad to hear that a Select Committee is going to be set up. Consideration of such a Bill is a very formidable and serious task for local authorities, particularly now under existing conditions when we are living in difficult and very anxious days.

In trying to force through a Bill of this kind the Government are really in one way adopting a policy which is entirely inconsistent and out of line with certain instructions which they have already given to local authorities. The Lord Privy Seal issued a letter on April 19 to all local authorities, in which he said: His Majesty's Government have had under review the measures which can be taken to accelerate the process of organising national defence in its various branches. His Majesty's Government therefore has decided to request local authorities so to arrange their business that priority is given to civil defence matters over other business before the authority and to ensure that all responsible officers of the authority are instructed accordingly. I think it is manifestly absurd and unfair in view of the issue of a communication of that kind, which I regard as a definite order to local authorities, to expect those local authorities to find time somehow or other, with their officers already fully engaged and their members very occupied, to consider this matter. The question, for example, of the breaking up of streets is likely to arouse controversy and discussion.

I venture to suggest that the introduction of such a measure at the present time is a waste of Parliamentary time, and I might almost say it is an abuse of Parliamentary procedure solemnly to examine the provisions of a Bill of this kind when we are expecting a report from a Committee which no doubt will contain numerous recommendations and may make the proposals in this Bill abortive and out of date. For these reasons I venture to hope that as much time will be given to the consideration of this measure as may be found possible. It is hardly a matter of urgency and I hope that the Government will realise that and not press us in the matter.

6.28 p.m.


My Lords, it is not to be wondered that the noble Lord, Lord Eltisley, who acted as Chairman of the Joint Committee over a period of four months in 1936, should express some protest at the form which this Bill takes and at the hurrying through of such a measure. As I was privileged when a member of the other House to sit with my noble friend on that Committee perhaps your Lordships will allow me to make a few remarks on this Bill. I am very surprised at what the Bill contains and even more surprised at what the Bill omits. The genesis of the Joint Committee was this. In 1933 and 1934 there were periods of drought and public opinion was disturbed lest there should be a shortage of water, although in fact there was no shortage, so the joint Committee was set up. Among the witnesses who gave evidence and were cross-examined there were no fewer than twenty from representative public bodies. We investigated several of the matters which are implied, although they do not actually appear, in the Bill. I have read the Bill carefully and I find it highly technical and one which refers to a matter of vital import to humanity all over the country because it deals with the question of a plentiful supply of pure drinking water.

Clause 1 of the Bill gives the Minister a power to make an Order to confer on applicants such rights and powers as he deems necessary or expedient and by subsection (8)—I am paraphrasing the words of the Bill—an Order made under the clause, whether or not confirmed by Parliament, may be amended by a subsequent Order of the Minister. This seems to me a complete usurpation of the functions of Parliament. Perhaps I had better read the subsection. It provides that: Any Order made under this section whether or not confirmed by Parliament, and any Provisional Order relating to waterworks made under the Gas and Water Works Facilities Act 1870, or ally Act amending this Act, may on the application of the persons supplying water under the original order, be amended by a subsequent order of the Minister made under, and in accordance with, the procedure laid down in this section. This is pure government by Whitehall. It is in accord with what the Lord Chief Justice condemned in his book The New Despotism. It is Whitehall administration taking the place of Parliamentary decision.

The Bill relates among other things to fisheries, and on page 33—it must be a mere verbal concession to empty politeness—it is provided that a fishery board "shall be deemed to be interested." One knows the flow and catchment relation of streams to fisheries. The Joint Committee gave much thought to this aspect of the water problem. My noble friend Lord Eltisley will confirm that we talked about this particular matter for days. We considered also the power of the Ministry of Health to snake Orders, and I will now, if I am allowed, read a paragraph which appears in the Report of the joint Committee on Water Resources and Supply, 1936. It is in paragraph 13 of the Report. I am bound to say that I was so surprised by this Bill that I went through it almost line by hue with our 1936 Report. This is what the Committee said—I will omit non-essential words: The majority of the witnesses who appeared before the Committee were opposed to the Ministry of Health obtaining the sole power to make Orders.… They complained that adequate consideration had not been given to the needs of industry, agriculture or fisheries, and further, that the Ministry of Health could not be expected fully to appreciate them. The Ministry of Health is responsible for this Bill, let it be remembered. The Ministry of Agriculture and Fisheries endorsed the first part of this criticism in so far at any rate as the Reports of the Advisory Committee on Water were concerned. … The Advisory Committee consisted of officials of the Ministry of Health and of representatives of water undertakers and their engineers. No other interest was represented on it. This is the Joint Committee's unanimous Report: The Committee are of opinion that the methods of the Ministry of Health justify in no small degree the criticisms that have been levelled against them by reason of their apparent failure either to consider the point of view of, or to consult with, opposing interests before submitting their proposals to the Committee. I do not think it is necessary for me to add any words to that. That was a paragraph of the unanimous Report of the Joint Committee.

None the less, under Clause 1 of the Bill the Minister merely snaps his fingers at the Joint Committee's Report, for he has quietly incorporated into the Bill authorisation of the very power which the Committee recommended should not be given. Let me read, to strengthen that point, paragraph 14 of the Report and the first three lines of paragraph 15: The Committee recommend that the Minister should not be given power to make Orders, even if unopposed, without Parliamentary control. Nor do they consider that any new form of water legislation should be brought about even by Orders which would be subject to affirmative Resolutions of both Houses of Parliament … As the Committee do not recommend any type of legislation by Order, the proposal that Orders if opposed should automatically be converted into Provisional Order Bills does not arise. In the face of those recommendations, after investigations and cross-examination of witnesses, by the Joint Committee of 1936—and I suppose your Lordships look upon the considered opinion of a number of noble Lords and members of the other House of Parliament as the opinion of responsible people—I think your Lordships may well ask to-day why the Minister should seek to obtain powers such as those outlined in Clause 1 of the Bill.

Now may I go to another point? The Bill is designed to deal with areas not within the limits of supply of any statutory undertakers supplying water under a Local Act or Order. We must therefore assume that this Bill is designed also to deal with shortage of rural water supply. If that is so, then it must be observed—I must draw the attention of your Lordships to this—that the Joint Committee considered that a revision of waterworks code or law should be deferred—these are the Committee's own words— …"until it can be dealt with in some such way as has been adopted in the case of the revision of the Local Government Acts. That is in paragraph 7, on page 4 of the 1936 Report. Does the Bill follow that recommendation? I do not think it does. This is piecemeal legislation. It is indeed so, as the full problem of compensation water has not been faced in this Bill. Compensation water is a most difficult matter. Perhaps my noble friend the Chairman of the Committees of your Lordships' House has conferred with the revising authority with specific reference to this Bill. I think I bear in mind—I may be wrong, but I think I am right in saying it—that his attention was called to the position in 1936 by the Joint Committee on Water Resources. I remember some communication; I am not quite sure, but I think it was his attention that was drawn to it.

Let me pass to another point, to something which has been omitted. Under Part IV of the First Schedule of the Bill it is provided that a map of underground pipes and works must be kept by water undertakers and copies must be deposited with local authorities. As your Lordships know, there has been widespread building of houses in rural districts. Some of these houses are not attached to any local drainage system, so the owners have placed septic tanks—to use the common expression—at the bottom of the garden. The contents of these septic tanks are liable to overflow or seep through or to be affected by flood-water. As a result they may contaminate near or distant areas from which domestic water supplies are collected by water undertakers. So far as I know, no obligation already exists, and there is no obligation in this Bill, on local authorities, after they have received the information which they already must receive, to keep a map to show exactly the various parts of rural areas where these septic tanks exist. I have only to remind your Lordships, although it is not an analogous case, that there was recently a typhoid disaster arising from water contamination in South London. Clauses 9, 10 and 11 of the Bill seek to avoid pollution and give protective methods for the use of the authorities. But there is no compulsion on local authorities to keep maps of the locations of septic tanks as a precautionary measure and keep them entered up to date. I ask myself, has this been intentionally left out of this Bill, or has it been overlooked?

There is another defect in the water code which should be dealt with in this Bill. Water undertakers have to come to Parliament for power to take their supplies of water, and they are usually compelled to compensate any person whose supplies they may deplete. This is what the Report says on page 6, in paragraph Ir. I will read it to your Lordships: A property owner, however, can sink a number of wells to any depth he chooses on his own land, thereby perhaps causing a shortage of the essential water supply, without the water undertaker having any redress. As a private owner you can pump on your own land and as deeply as you like, and you can take water; you can pump as much water as you like for your own use, and you can prevent the water undertaker who would be needing the water for the use of the public from being able to say a word about being deprived of supplies. In a case of this kind—and it should be embodied in the Bill—the property owner should be treated as if he were a water undertaker—that is to say, if he sinks wells below a certain depth or takes water more than enough for his own need.

A case was brought before the Joint Committee by a witness in which a private owner tapped a water supply by putting a bore-hole into the red sandstone formation near Nottingham, where artesian water can be obtained. That private owner used the water for refilling his trout-stream. The opinion was expressed in Question 562 of the evidence that in this particular case, although he was within his rights, the private owner's action was injurious to the public weal. Another case was pointed out to us in the evidence, in Question 566, that the supply of water in the chalk area in Hertfordshire, north of London, might be taken by private owners of land under the existing law to the detriment of the water supply of a million people in the area, without any redress.

This Bill provides an opportunity for remedying such defects in the water code as I have mentioned. They ought to have been dealt with in this Bill. I should like to put this point to my noble friend the learned Lord Chancellor: has he considered the advisability of giving the Minister power to make Orders, even if unopposed, without Parliamentary control? I should like bluntly to ask him that, and to urge my question having regard to the fact that the Committee were against any type of legislation by Ministerial Order, and stated so in their Report. The points with which I have ventured to trouble your Lordships are not, in my opinion, normal Committee points. I therefore trust that when the Minister concerned looks into the views expressed in this debate, he will consider whether he can meet the points by Amendment at the Committee stage, or in any case bring them up before the new Joint Select Committee about to be appointed. These are not true Committee points; they are matters of principle and go to the root of the Bill. For that reason I venture to commend them to your Lordships.

6.40 p.m.


My Lords, I would like to say one or two words on this Bill. First of all I think it is due to Lord Milne and those who have been working with him that a tribute should be paid to their efforts to try to improve the law relating to water undertakings. Some measure is overdue, and I hope that this may be a step towards securing a really valuable measure being passed through Parliament. The two noble Lords who last addressed your Lordships have dealt with omissions, and Lord Mancroft dwelt upon the point that they are questions of principle, and are not possible to be dealt with by a Joint Committee. I should have imagined that the points which he has raised, and which Lord Eltisley raised— I except the point which Lord Eltisley made of hurrying the Bill—might be considered by a Joint Committee and reported upon when that Committee meets and receives evidence.

The point I wanted to allude to is that it is important that something should be done in order to deal with a situation which now exists. A great number of water undertakings have different powers, and I feel that Parliament ought to deal with the delay which has occurred in making a satisfactory arrangement. Another point with which I really rose to deal is the question of pollution, in which all water undertakings are greatly interested. I want to point out that it is a fishery interest, as well as a question of the purity of water for consumption. I want, if I may, to get an assurance from the Government that the fishery interest will be regarded as one of the industries which were alluded to by Lord Bridport. That noble Viscount alluded to the consumers and to the industrial interests, but I think that the fishery interests must be regarded also as an industrial interest, and that the fishery boards, and even the National Association of Fishery Boards, ought to have a locus to give evidence before the Joint Committee, in the event of the Bill passing the Second Reading and being referred, with the assent of another place, to a Joint Committee. I believe it is important that some step should be taken, and I believe that the points which have been raised in this debate might be fairly considered in Joint Committee.

6.44 p.m.


My Lords, I may perhaps be allowed to say just a word on this subject. In reply to Lord Mancroft, I did not have anything to do before the Committee, and did not appear as a witness. A member of my department may have done so, but I cannot recollect the fact and cannot add anything to what the noble Lord has said as regards my own experience. I should like to associate myself with what Lord Gainford has said about the admirable work done by both these Committees, that of Lord Eltisley and that of Lord Milne. I would also like to congratulate my noble friend Lord Bridport upon the lucid manner in which he has explained the Bill, which, as he said, quoting from the Title, "is an Act to consolidate with amendments certain enactments relating to water undertakings."

There have been three local government consolidation with amendment Acts passed by Parliament during the last few years, and the principle on which the Ministry of Health and the Government worked with regard to those Acts is, I think—Lord Bridport will correct me if I am wrong—the same as that which it is proposed to adopt in the case of this Bill. There were in the first place the constitution of local government authorities, then the new Food and Drugs Act, and then another Act the title of which, although I was a member of the Joint Committee, I have forgotten, and all proceeded on the same principle. They took all the enactments on the subject, they took the model form of clauses which appears in Private Bills and Local Acts, and brought them together in one Act. They were really Consolidation Acts, but there was sufficient amendment of the law to prevent their being sent to the Consolidation Committee, and a special Joint Committee was therefore established. The principle on which those three Joint Committees worked was that they would not accept any amendment of a far-reaching character. I will give your Lordships an instance. I was Chairman of the particular joint Committee concerned, and a proposal was put before us to add measles to the list of notifiable diseases. My colleagues, and myself in a humble way, supported this proposal, because we thought it very desirable to do so, but it was represented to us strongly that this was regarded as a very considerable amendment of the law by local authorities, and your Lordships were persuaded to resist our recommendation.

The object of Consolidation Bills was to get the law as it ought to be, and generally speaking as the law is at present. After that, for wide-reaching amendment of the law, the principles of administration, and so forth, it was proposed to rely upon more comprehensive Bills, because such Bills might be controversial and might require a considerable amount of consideration. Not that this particular Bill has not had immense consideration; but if you are going to alter the law it is, I think, desirable first to get consolidation of the existing law perfectly straight, and I would ask my noble friend if that is the principle of this Bill. He replies in the affirmative. In those circumstances it seems to me that the questions raised as to principle, and amendment of the law, should not be dealt with in this Bill but should be the subject of wider Bills at a future date. I thought I might mention that to your Lordships, because I have served on these three Committees and if this Bill is exactly the same, and the Ministry of Health code is now being consolidated into a state which is easily and generally intelligible, then I think the question of amendment of the law is one for another Bill.

I must say that I welcome this Bill. I have not read it carefully, but I have looked through it, and it seems to me that it will be of enormous assistance in the interpretation of the existing law, that it will save trouble and expense to undertakings, that it will be a starting off ground for general and widespread amendment of the law with regard to water, and that it will be a most useful measure. I just wanted to explain to your Lordships what was the policy pursued with regard to former Bills, and I understand my noble friend to tell us that the same procedure is to be followed on the present occasion. I think the Bill will be of great assistance, and I hope your Lordships will give it a Second Reading.

6.50 p.m.


My Lords, I am not quite so sanguine as my noble friend Lord Gainford that all these points can be dealt with in Committee. I am not, of course, competent to speak on the technical points, but there does seem to me to be something in what the noble Lord, Lord Mancroft, said, that this Bill appears to contain another attempt on the part of the Department to override the control of Parliament. The Minister of Health may apparently, subject to the provisions of Clause 1, make an Order conferring upon the applicants such powers as he may deem necessary or expedient, including provisions for the amendment of any Local Act or Order. That seems to me to be an extension of the powers of various Government Departments, of which we have seen evidence in a good many Bills brought before your Lordships' House in recent years, and in regard to which your Lordships' House has a very proud record of having watched most carefully to see that the rights of Parliament were not encroached upon. In more than one instance this House has sent back to another place Bills with Amendments preserving the rights of Parliament over public Departments. Nevertheless here I see something which to my mind is suspiciously like another attempt to override the power of Parliament, and before we allow this Bill to proceed I should like some assurance from the Minister responsible that the point will be taken into consideration, and that nothing will be done which in any way derogates from the rights of Parliament and puts more powers into the uncontrolled hands of the Minister concerned.


My Lords, there has been a great deal of controversy about this Bill, but I do not think that any noble Lord has really tried to go against the Bill. The noble Lords who have spoken believe that such a Bill is necessary, but are rather worried about certain clauses and certain parts of the Bill. The intention is to appoint a Joint Select Committee to investigate if possible all these clauses. At that Select Committee everything can be examined and criticised, and there may be some Amendments suggested by the Government at that stage, in view of what noble Lords have said to-day.

On Question, Bill read 2a.


I beg to move that this Bill be referred to a joint Committee of the two Houses.

Moved, That it is desirable that the said Bill be referred to a Joint Committee of both Houses of Parliament.—(Viscount Bridport.)

On Question, Motion agreed to.

Ordered, That a Message be sent to the Commons to communicate this Resolution, and to desire their concurrence.