§ 4.19 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Addison.)
§ LORD GAINFORD
My Lords, on this Motion I desire to say a few words with the leave of the House. There is an English Bill exactly similar to this Scottish Bill, but the two provisos which are inserted are different. I had hoped that these two Bills might have been considered together in your Lordships' House as similar Amendments are desired by the Mining Association of Great Britain to both measures. The two provisos which differ are these. First, the application under the Scottish measure has to be made to the Sheriff, whilst under the English Bill it has to be made to a lay court of justices of the peace. The second alteration is in proviso (ii) of this Bill, which would give to the owners the right of defence when they have taken all possible measures to prevent spontaneous combustion in pit heaps. It is not unusual, when we receive from the 939 other House measures which have been carried through by a draftsman engaged by private Members, that the Bills require some revision in this House as far as phraseology is concerned. This is a case in point, and the two Amendments which I am going to move when we reach the Committee stage will not only improve the phraseology but will make the Bill both workable and practicable.
The reason why I intervene at this present juncture is to point out that everything that can be done at the present time to prevent these fires at pit heaps is being done by experts throughout the country. The Mining Associations, on behalf of whom I speak, have no objection to the principle of the Bill, provided the Amendments on the Paper are inserted in it. There are a number of Scottish firms who resent the power which is given by the Bill to a local authority which has no technical knowledge of the composition of a pit heap, no knowledge of how fires may occur in such a heap, and no knowledge of how they ought to be put out. Those firms consider that power should not be left to a local authority, to say when such heaps are liable to spontaneous combustion, but rather that it should be left to the Ministry to decide whether a case has really been made out for taking proceedings on the ground that a heap of the kind to which I am referring is liable to become a nuisance.
I am not going into the merits of my Amendments at this time; I shall develop them at a later stage. While there is no doubt that colliery firms are anxious about this Bill in its present state, I do not think there would be any objection to it if my Amendments were accepted in Committee. All coalowners dislike very much to create pit heaps, which are very unsightly and in many ways objectionable to authorities outside the colliery precincts, but it is absolutely essential in many cases that these pit heaps should be created. They may be composed partly of coal or shale which is unsaleable and cannot be stored away underground. It happens occasionally that stone or other materials underground have to be brought to the surface in order that the coal measures can be worked. We all desire that these heaps shall not become a nuisance, and the wish of coalowners is that everything 940 that can be done should be done to prevent the heaps becoming a nuisance in any way.
On the Second Reading of this Bill Lord Balfour of Burleigh drew attention to the fact that there was a pit heap on fire which could be seen from his residence, and he said that it could be seen at night as a glowing target which an enemy aeroplane would be able to detect. He also said that it was close to Rosyth Harbour, and he asked that fires of that kind should be obliterated in some way. May I point out to your Lordships that this case is entirely met by the obscuration proposals in the Defence Act? That Act does compel attention to be directed to these heaps just in the same way as attention has to be directed to steelworks and blast furnaces and coke ovens where light is produced and it is somewhat difficult to obscure that light. The provisions in that Act are dealt with by the power given to authorities to screen the lights, and so far as it is possible to screen all these lights it will be done and is being done by experts who have been appointed in every district throughout the coal areas. I am quite sure that everything that can be done in that direction is being done under that Act.
This Bill deals with rather a different problem, and that is the possible creation of a nuisance to householders who are in residence close to one of these pit heaps which may be on fire. In November last there were believed to be something like 260 heaps that were liable to be on fire, and to create a glow of some kind or other or produce fumes or smoke. With the help of His Majesty's inspectors last November over 150 of these were dealt with by experts, and I have no doubt that between November and last month a large number of the others have had attention given to them, so that as far as it is possible any nuisance of that kind has already been avoided. I am anxious only in my Amendments to make this Bill a workable and practicable one, and it is because, owing to another engagement, I was not able to say during the Second Reading w hat I have now said that I thought I might be allowed to intervene at this stage in order to explain the position exactly.
§ On Question, Motion agreed to.941
§ House in Committee acordingly:
§ [The EARL OF ONSLOW in the Chair.]
§ 4.26 p.m.
§ Clause 1:
§ Coal mine refuse liable to spontaneous combustion to be deemed a nuisance.
§ 1. For the purpose of paragraph (5) of Section sixteen of the Public Health (Scotland) Act, 1897, an accumulation or deposit of refuse from a coal mine which is liable to spontaneous combustion shall be deemed to be an accumulation or deposit which is a nuisance:
§ Provided that—
- (i) any application under Section twenty-two of the said Act in respect of any such accumulation or deposit of refuse as aforesaid shall be made to the Sheriff; and
- (ii) in any such application it shall be a defence for the respondent to prove that the best practicable means have been taken for preventing the accumulation or deposit from becoming liable to spontaneous combustion.
§ LORD GAINFORD moved to leave out "which is liable to spontaneous combustion" and insert "in respect of which there is reasonable cause to believe that spontaneous combustion is likely to occur." The noble Lord said: I have had an opportunity of consulting two or three legal advisers and they all tell me that the words as they now appear in the Bill are very unsatisfactory because they might imply that every single pit heap might be liable to spontaneous combustion somehow or another. I do not believe it is intended that every pit heap should be regarded as being liable in some distant future, owing to circumstances which cannot be foreseen, to get on fire, and that these heaps should be either destroyed or removed to prevent the possibility of their getting on fire at some future date. In many cases nobody can tell whether a heap might at some time or other take fire. If 14 feet of good coal remains in a heap with other material on it no doubt it would be liable to fire within a few weeks, and, of course, with a greater amount of weight upon it, it would probably fire sooner, but most of these heaps are not of an inflammable character. They are composed mostly of refuse and stones taken from the mine.
§ It is quite impossible in many cases to stow away this material underground except at enormous expense or by incurring the danger of creating what is called a gob fire, which would be a very 942 great menace to a colliery. It is necessary, therefore, that these pit heaps should be created above ground. It is desirable that these pit heaps should be above ground, and it is quite impossible in many cases to remove many thousands of tons of material which, although unsightly, are really no menace to health, but under the provisions of the Bill might be said to be liable to spontaneous combustion. Therefore I think it is necessary to insert these words in order to discourage frivolous action by local authorities who know nothing at all about the material or the effective means which might be taken to remove any nuisance. Therefore I hope your Lordships will agree with me that instead of leaving in the words "liable to spontaneous combustion" the words of my proposed Amendment should be inserted.
Page 1, line 8, leave out from ("mine") to ("shall") in line 9, and insert ("in respect of which there is reasonable cause to believe that spontaneous combustion is likely to occur.")—(Lord Gainford.)
§ LORD ADDISON
There is no desire on the part of anyone associated with this Bill to adopt an unreasonable attitude or to encourage local authorities to take unreasonable action. For myself I cannot see much difference between the words in the Bill and the words proposed by the noble Lord. I think they mean much the same thing, but, unless I am advised to the contrary by the Government, I have no objection to the Amendment being adopted.
§ THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND)
So far as the Government are concerned they have no objection to the Amendment, although I am not sure that I can altogether agree with the noble Lord, Lord Addison, that the two phrases mean precisely the same thing. I think there is a substantial difference in meaning.
§ On Question, Amendment agreed to.
§ 4.32 p.m.
§ LORD GAINFORD
The next two Amendments which I have put on the Paper must be read together in order that I may point out the importance of them. I propose to leave out the first "any" in proviso (i) in order to insert "no," and then, at the end of the proviso, to insert these words: 943without the consent of the Scottish Board of Health and such consent shall not be given unless the said Board is satisfied after holding a local inquiry that means for abating the nuisance caused by such an accumulation or deposit of refuse are reasonably practicable or available under all the circumstances of the case and that no material injury will be inflicted by such proceedings on the efficient and economic working of the coal mine.The only criticism of this Amendment which I have received comes from one quarter, in which it was suggested that a local inquiry might be somewhat expensive and might be unnecessary. If the Government take that view I am quite prepared to move the Amendment omitting the words "after holding a local inquiry." That would enable the Scottish Board of Health to decide whether a reasonable case was made out. It would give to a colliery owner the opportunity of making representations and of stating what the company had already done and what it was possible to do to diminish or remove a heap. It seems to me that every colliery proprietor, who knows all about his heap and the nature of the materials, should be able to make representations to the Minister as to what is possible. Otherwise, on the mere ipse dixit of a local authority, a Sheriff might be called upon to decide that a pit heap must be removed because the local authority thought it was liable to be set on fire.
It is very important, I think, in order to guard against frivolous or captious action on the part of a local authority who has no knowledge of what it is possible to do or of the materials of a pit heap, that a case should not be taken into Court without the Minister feeling that there was justification for large expenditure in connection with the removal of an alleged nuisance. It might be quite impossible for a heap to be removed, but the Sheriff might be called upon to fine a colliery owner up to £5, with a continuing penalty of £2 for every single day, if the order to remove a heap was not complied with. Such a position might be intolerable and it might even lead to the closing of a colliery, thereby throwing a large number of workmen out of employment and creating a distressed area. In the Public Health Act, 1875, there was a provision that nothing in the Act should be construed to extend to mines so as to interfere with the efficient working of the same.
Your Lordships passed in 1936, only three years ago, an identical provision in 944 the Public Health Act of that year. It was further enacted in 1936 that a local authority should not, without the consent of the Minister, institute summary proceedings in respect of any such nuisance. I am arguing that what was done by your Lordships and in another place in 1936 to protect the working of collieries should be continued in this Bill, and that the Minister should make himself responsible for deciding what is practicable before the local authority can take action. This Amendment will give a fair opportunity to colliery owners to make representations to the Minister, and we should be quite satisfied if the Minister, after getting such information as he can from Government inspectors and colliery owners, decides that the provisions of the Bill should operate. We do ask your Lordships in all fairness to give colliery owners an opportunity of making representations in regard to any action which a local authority may take.
Page 1, line 12, leave out ("any") and insert ("no").—(Lord Gainford.)
§ LORD ADDISON
I take it that it will be convenient to deal with the Amendments on the Paper together, with the exception of the last two.
§ LORD ADDISON
I shall have something to say about them before I am finished. I think that the noble Lord must have been inadvertently advised as to the first Amendment, where he proposes to leave out the word "any" and insert "no." The effect of that Amendment would be that these provisions would apply only to cases where the application was made to a Sheriff under this Bill. The two provisions of Clause I are inserted in order to give additional safeguards to the colliery company, and it will be noted that as the Bill stands the case is limited to applications to an experienced lawyer—namely, the Sheriff. Under the existing law, under Section 22 of the Public Health (Scotland) Act, 1897, a local authority may institute proceedings with regard to the removal of a nuisance before a Sheriff or any magistrate or justice. And I see that under Section 16 (5) of the same Act it says:Any accumulation or deposit, including any deposit of mineral refuse, which is a nuisance or injurious or dangerous to health945 shall be deemed to be a nuisanceliable to be dealt with summarily in manner provided by this Act.That is the law now, so that all the heaps to which the noble Lord has referred, which may be on fire and which I am sure we would all agree to be very difficult to put out and wish that somebody could find a way of putting out, can be dealt with, or an application can be made in respect of them, under the existing law, an extract from which I have just read to the Committee. An application can be made to a Sheriff's Court or to any magistrate or justice. The only effect of the Amendment of the noble Lord, if your Lordships were to adopt it, would be that it would then not be possible to take a case before a Sheriff until you had had this preliminary hearing by the Scottish Office, but you could take it to a magistrate or a justice without any preliminary proceedings whatever. In other words, the safeguard for the mining company is effectually torpedoed by the noble Lord's own Amendment. The proposal in the Bill is that you can only take a case to a Sheriff; but if we knock out the word "any" and insert "no," it will mean that you could take it to anybody, a magistrate or anyone else, which is the very last thing that the noble Lord desires. I hope therefore that he will be prepared not to proceed with the Amendment.
There are one or two other substantial reasons for objecting to this procedure. The Bill is designed to deal with, shall I say, future accumulations, and to try to secure that they are dealt with in such a way that they will not become a nuisance. The local authority, with the powers in respect to existing accumulations to which I have already referred, will not, I suggest, bring to the court a case which involves considerable expense, without having thought about it and given it consideration; and the only effect of the noble Lord's Amendment is that he will turn the Department of Health of Scotland into a law court. The case will be heard, so to say, before the Department before it can come before the Sheriff. I suggest that that is a very undesirable innovation. It is not the proper way to use a Department of State, and I hope that your Lordships will not be prepared to adopt it.
The two objections which I suggest to the Amendment at this stage are these. First, it effectually removes the biggest 946 safeguard for the mining company which the Bill is designed to provide—namely, it allows a case to be taken to a lower court in any event, without any of these preliminary proceedings. In the second place, it turns the Department of Health into a sort of preliminary court, which I suggest is undesirable. Perhaps I might say a word on the other safeguards. I note that the noble Lord does not now intend to move the last two Amendments on the Paper, the effect of which would be to leave out words which were inserted deliberately as additional safeguards—namely, that it shall be a defence for a mining company to show that they have taken the best practicable means for preventing the accumulation or deposit from becoming liable to spontaneous combustion. I am sure that that is an entirely fair provision in the interests of the mining company and is a great safeguard, and therefore I am glad to find that the noble Lord is not going to move its omission. But I suggest to your Lordships that, for the reasons I have given, these Amendments would be exceedingly unfortunate. They would make matters worse for the mining company and would introduce another procedure which would also be bad.
Furthermore, though I would not in the least suggest to your Lordships that my next point should be a reason for not accepting the Amendments if they were otherwise desirable, yet these Amendments might lead to criticism in the other House because they would necessarily raise a point of Privilege, as they would involve the local authority in expense. Perhaps it would not be a great expense, but they could so involve it. The authority could not hold these inquiries without expense, and therefore, so far as that went, it would raise a question of Privilege. That is not a reason why it should not be put in if it were thought desirable, but I thought it wise to draw attention to the point as one that would arise out of the Amendment if it were adopted. For those reasons I hope your Lordships will be willing to accept the Bill in the form in which it passed through the other House without this Amendment.
THE EARL OF CRAWFORD
I think it would be well to enter a word of caution against the assumption that a local inquiry raises a question of Privilege. I do not think it does at all. It merely 947 indicates that in a certain particular the local authority shall take action as it now does in fifteen or twenty other particulars. I do not think it would be a case of Privilege at all. That, however, as my noble friend opposite has indicated, does not really much matter. What I am not clear about is the dual authorities who are entitled to deal with this nuisance. Lord Addison says that there is the Sheriff on the one hand and the magistrates on the other. Does not this Bill say that all applications in future must go to the Sheriff?
THE EARL OF CRAWFORD
The Bill has it. In other words, it is in the existing Act without the Schedule. So there will be contradiction between one Act of Parliament—three years old, is it not?—giving the magistrates jurisdiction, and this Bill, which says that any application shall be made to the Sheriff. It disestablishes the jurisdiction of the magistrates. I should like advice about that from those who understand the reading of the law, but it seems to be obvious. Lord Gainford accepted that view of Lord Addison, and said that no application shall be made to the Sheriff unless certain preliminary stages have been satisfied. I do not think your Lordships should either accept this Bill or accept the Amendment without being very clear what is really involved. This Amendment, and the Bill too, assume that pit heaps belong to the colliery companies. There are hundreds, there are thousands, of pit heaps in this country which do not belong to colliery companies but are the relics of colliery concerns which have reverted to the proprietor of the land. In those cases it seems very singular that the owner of the pit heap should be made responsible for what is called spontaneous combustion, which may happen years afterwards as a result of operations for which he was not responsible.
I am really interested in this idea of a pit being liable to spontaneous combustion. I have not an idea what spontaneous combustion is. I do not think there is such a thing. When an old pit heap burns it is not spontaneous combustion but because of perfectly well-defined movement or friction in the subsoil beneath the surface. I think any pit heap 948 which has 4 per cent. of pure carbonaceous matter may be liable to combustion, if there is movement of the earth which produces the necessary friction within the heap to set the thing on fire. There are lots of pit heaps which one knows must be liable to combustion, spontaneous or otherwise, but which do not show combustion, and that is manifest, because I very well know pit heaps which have not shown signs of fire for years and years, but which will not maintain snow upon them, thus indicating that there is within the heap combustion going on, although invisibly, and unknown and undetectable.
I argue upon this that the Amendment moved by Lord Gainford is desirable, and that it is desirable to retain the words "after holding a local inquiry." That will ensure that the Scottish Ministry of Health will make the problem a subject of special care, and I think it is a reinforcement of the duty placed upon the Scottish Board of Health to take this action before giving consent, I therefore support the Amendment subject to anything that the legal authorities may say about the position of the magistrates vis-à-vis or in contrast to that of the Sheriff. As a matter of amenity it might be desirable to say "in" all the circumstances, rather than "under" all the circumstances.
I should like to support the two Amendments, especially after what has been said by my noble friend Lord Crawford, and I hope your Lordships will bear with me for a few moments while I refer to the points raised by Lord Gainford, because it is very important that we should thoroughly understand what we are doing. Section 16, subsection (5), of the Public Health (Scotland) Act, 1897, provides that certain matters may be dealt with summarily, and these are referred to as "statutory nuisances," but there are two provisions in this Bill which, as was pointed out by my noble friend Lord Crawford, do not occur in the English Bill. I propose to refer to that again.
The first provision is that any application made by a local authority to have a deposit declared a nuisance will be heard before the Sheriff, and not before lay magistrates and justices, as has been pointed out by Lord Crawford. The second proviso makes it a good defence 949 for the owners of the deposit to prove that they have taken the best practical means for preventing the accumulation or deposit from becoming liable to spontaneous combustion. The mining industry feel that these provisos are not sufficient for their protection, as it is possible that grave differences of opinion might arise as to the methods available for preventing spontaneous combustion, and I would suggest that no procedure should be taken until, as suggested by my noble friend Lord Crawford, a local inquiry has been held by the appropriate Minister, and there has been a finding that means for abating a nuisance are reasonably practicable or available under all the circumstances, and, what is of the greatest importance, that no material injury might occur to the mine concerned.
As has been already pointed out, I would again venture to remind your Lordships that both the English Public Health Act of 1875, and in the Act of 1936, which deal with certain nuisances, and which the English Coal Mine Refuse Bill seeks to amend, very full protection is given to coal and other important industries. In the Act of 1875 there is a special section, Section 334, for the protection of mines, which provides that:Nothing in this Act shall be construed to extend to mines [of different descriptions] so as to interfere with or obstruct the efficient working of the same.In the 1936 Act, Section 109 provides that:Nothing in this Part of this Act"—that is Part III, which deals with nuisances and offensive trades—shall be construed as extending to a mine of any description so as to interfere with or obstruct the efficient working of the mine.I think there is little doubt of the importance which Parliament attaches to any possible interference with the mining industry, and I strongly urge your Lordships to accept this Amendment, which seeks to give the fullest possible examination to the matter before any steps can be taken which might interfere with the proper working of a mine.
§ THE MARQUESS OF ZETLAND
This is not, of course, a Government Bill—it is a Private Member's Bill—but the Government are naturally anxious to see that it is drafted as well as may be. My difficulty in accepting the Amendments which have been proposed by Lord Gainford 950 is really the same difficulty as that which was expressed by the noble Lord, Lord Addison. I do not think that these Amendments will have the effect which the noble Lord, Lord Gainford, intends. These two provisos were certainly included in this Bill with the intention of giving the owners of coal mines protection against undue harassment under the provisions of the Bill, and I cannot come to any other conclusion myself with regard to the first of these two Amendments than the conclusion arrived at by Lord Addison.
What does this Amendment say? The first proviso in the Bill as it is at present drafted says that:Any application under Section twenty-two of the said Act—that is to say the Public Health (Scotland) Act, 1897, which we are now proposing to amend—in respect of any such accumulation or deposit of refuse as aforesaid—that is to say, the things which are dealt with in the first part of Clause 1 of this Bill—shall be made to the Sheriff.The purpose of that was to ensure that a case, if it was to be brought against the owner of a coal mine under this provision, should be brought before a really reliable court—namely, the Sheriff's Court—a court of high standing. Section 22 of the Public Health (Scotland) Act, 1897, which is referred to here, provides that the local authoritymay apply to the Sheriff or to any magistrate or justice, by summary petitionfor the removal of any nuisance. It seems to me, therefore, that the only effect of the first part of the noble Lord's Amendment will be to put the local authority in this position, that they can bring a case against an owner of a coal mine before any subordinate court, but they cannot bring a case before a Sheriff's Court unless certain other proceedings have been taken. That is not the intention of the noble Lord.
§ THE MARQUESS OF ZETLAND
Yes, that is in the Bill as drafted. The noble Lord proposes to amend that and to say that no application under Section 22 of the Act in respect of the accumulation of such deposits of refuse shall be made to 951 the Sheriff unless certain other things are done. It does not touch the right to take the case in the subordinate courts. That right remains, and I cannot believe that it is the intention of the noble Lord that that should be so. With regard to the question of an inquiry before a case is brought before the Courts at all, I should have thought that if as the result of the inquiry the Ministry of Health came to the conclusion that there was a case for bringing the matter before the Courts the defendant would, in those circumstances, be deprived of his defence because, in accordance with the terms of the noble Lord's Amendment, the Ministry of Health would not be entitled to permit a case to go before the Courts unless they were satisfied that the proper precautions had not been taken by the owner. So that by the time the matter comes before the Courts after an inquiry of that kind, the owner would have been deprived of his defence. Having said that, I am left in some difficulty, because it appeals to me that there is some doubt as to what the real effect of these Amendments will be. I am not a lawyer, but I cannot myself come to any other conclusion than that it will be as I have stated it. I do not know whether the Lord Chancellor is prepared to express an opinion on this matter. If he would, I have no doubt your Lordships would be very glad to hear him.
§ THE LORD CHANCELLOR (LORD MAUGHAM)
I think I must say at once that the matter is not free from doubt, and I almost think the most satisfactory way, if the noble Lord, Lord Gainford, would agree, would be that this Amendment should be withdrawn and that the matter should be reconsidered on Report, when I will undertake to be able to deliver to the best of my ability an opinion on the matter. Part of my doubt arises from this fact that, after all, this is a Scottish question. I never have taken upon myself to be an authority on this branch of the law, and I should like to have an opportunity of considering it with some of my Scottish colleagues before I express an opinion on the subject.
§ LORD GAINFORD
After the appeal of the Lord Chancellor it is difficult for me to press my Amendment, when he is quite prepared to consider it between now 952 and the Report stage. But I do not agree at all with the noble Marquess, who has spoken apparently on behalf of the Mines Department. I do not regard him as an eminent lawyer, nor do I possess any legal acumen myself, but before putting these Amendments on the Paper I took legal advice. I believe the best legal advice available has been ascertained in the preparation of these Amendments so as to secure that no frivolous action can be taken by local authorities without action being taken by the Minister who is responsible for seeing that a legitimate case is placed before the Sheriff. That is our object—that the Minister of Health should be satisfied with regard to action taken by a local authority, who know nothing at all about the character of a pit heap or what can be done to abate a possible or actual nuisance. Large expenses and possible difficulties occur in connection with the working of a colliery or the removal of a heap without adequate reason. Whilst I am quite prepared to confer with the Lord Chancellor, if I might do so, in regard to the terms of the Amendment, I wish to say that collieries cannot be placed in the position of being dictated to in regard to the removal of pit heaps arbitrarily, as they can be as the Bill stands at present, and some words must be inserted, I think, on the Report stage in order to protect that position. On that understanding, I beg leave to withdraw the Amendment.
§ THE MARQUESS OF ZETLAND
I agree with that entirely. My object was only to make sure that the effect of the Amendment would be what the noble Lord intended that it should be. I still think there is some doubt about it, and it would be much more satisfactory that a consultation should take place before the Report stage.
§ LORD ADDISON
Might I intervene to say, on behalf of those responsible for the Bill in another place, that the last thing in the minds of any of those responsible is to subject a colliery to arbitrary and foolish proceedings? It was in order to safeguard the companies against arbitrary and unnecessary proceedings that these two important safeguards were inserted in the Bill.
THE EARL OF CRAWFORD
I am much obliged to the noble Lord, Lord 953 Addison, for what he has just said. May I make this final observation, that I think it will be necessary to insert in the English Bill safeguards analogous to those proposed in the Scottish Bill? I therefore look to the noble and learned Lord, who is going to consider the Scottish aspect of the question, to be so good as to consider it in connection with the English Bill.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ Remaining clause agreed to.