HL Deb 27 November 1947 vol 152 cc1003-14

4.19 p.m.

Order of the Day for the Second Reading read.


My Lords, the object of this small Bill—which, not being a Scottish Bill, has quite a good chance of proving uncontentious—is to amend the Water Act of 1945 in order to remove certain difficulties that have arisen from the procedure laid down in that Act for the supply of water by water undertakers to the public. I am glad to be able to inform the House that the Water Act is, on the whole, working satisfactorily, and that many local authorities and statutory water undertakers have already made good use of its powers. I confidently expect that further use will be made of those powers when the authorities concerned have had time to consider carefully the many detailed surveys already made or being made by the Minister's engineering inspectors and by consulting engineers.

I also expect that the carrying out of the policy for the development of new towns will bring demands for fresh supplies of water. Indeed, this has already been demonstrated. Although it is intended to use the resources of existing undertakings to the utmost possible extent in meeting these demands, there will inevitably be cases in which the development corporation will themselves have to become statutory water undertakers, either alone or acting in combination with other authorities. It is essential, as I am sure your Lordships will agree, that the development of these new towns in England and Wales should not be handicapped or delayed by difficulties in providing a satisfactory water supply. For this reason it is specially important that the procedure whereby the water undertaker obtains water should be both speedy and effective.

The main difficulties that have been found in the existing procedure under the 1945 Act are these. Would-be water undertakers cannot carry-out the function of supplying water until they are in a position to exercise certain statutory powers provided for that purpose by the Act. These powers include such simple preliminaries as the right to acquire land, the right to build waterworks and the right to take water from rivers or from other water undertakings. But the definition of the term "statutory water undertakers" in Section 59 of the Act does not allow these powers to be exercised until water undertakers are already supplying water. This produces the absurd result that new undertakers cannot become statutory undertakers until they are actually supplying water. This means that they are unable to obtain a supply of water in bulk, or to acquire the land or water rights necessary for them to do their job, until they are engaged in supplying water and have thereby qualified under the terms of the Act to be statutory water undertakers. It is proposed to meet this difficulty by providing that new undertakers will become statutory water undertakers when they are authorized by a local enactment, which follows an order made by the Minister, to supply water, instead of having to wait until they are actually engaged in this operation. This is provided for in the amended definition of "statutory water undertakers" in Clause 1 of the Bill now before the House.

A similar difficulty arises in the case of joint boards and the amalgamation of water undertakings in Section 9 of the Act. It will often happen that the new undertakers thus formed will need additional powers for the taking of a bulk supply of water, or for the construction of new works, or for the acquisition of land or water rights at the time they are set up. They will, of course, become statutory water undertakers as soon as they are constituted, as they will take over the function of undertakers already supplying water. But they cannot apply for these additional powers which I have mentioned until they are actually functioning. This requirement for obtaining the necessary powers in two stages may cause a serious delay and handicap their efficiency. It is therefore provided in Clause 2 of the Bill that orders authorizing the formation of new undertakings, the formation of joint boards or the amalgamation of water undertakings, may also give all the necessary powers. This will eliminate the second stage of procedure which may at present be an indispensable legal requirement.

Clause 6 of the Bill gives power to survey and search for water on land which it is proposed to purchase. Your Lordships are aware that water undertakers must sometimes incur very considerable expenditure on major engineering works, such as dams for the impounding of reservoirs, and there is no certainty that water will be obtained from a piece of ground with underground water until a well or borehole has been sunk and the yield has been tested. A good deal of exploratory work is necessary to ensure that sites chosen as a source of water supply are suitable. The choice of sites and the planning of ancillary work, such as filtration plant, reservoirs and pumping stations, will often depend upon the suitability of the sites chosen for the head works. In many cases the undertakers find no difficulty in securing permission to survey the land before it is acquired, or entering into provisional agreements for purchase, but there are instances in which compulsory powers are necessary. Under the present rules, the surveys which are essential for the success of the schemes cannot take place until a compulsory purchase order has been made and the necessary procedure has been complied with. This includes the service of a notice to treat, with a consequent obligation to purchase the land. This means that the land has to be paid for, whether or not it is suitable for the purpose for which it is required.

The Government consider that it is in the public interest that undertakers should be able to avoid the considerable trouble, delay and expense of obtaining compulsory powers of acquisition before they are certain that the land is suitable. The clause therefore proposes that the Minister may authorize undertakers to survey land they contemplate acquiring, and to carry out exploratory works in order to ascertain its suitability for the provision of a water supply. An opportunity will be given to owners and occupiers to make representations to the Minister, and provision is made for payment of compensation for loss or damage incurred. There are similar powers for planning purposes in Section 103 (9) of the Town and Country Planning Act, 1937. These are the principal provisions of this small and, I hope, uncontroversial Bill. I recommend it to your Lordships for a Second Reading because it will certainly remove a number of difficulties that are at present hindering and delaying the important work of supplying water to the public. I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Earl of Listowel.)

4.27 p.m.


My Lords, it has fallen to my unfortunate lot to try to read and master this Bill. It is a Bill which does not seem to have a great principle underlying it, but there is one feature about it to which I take quite strong objection. We have here a Bill which occupies only eleven clauses, and yet there are no fewer than fifty-one alterations of Statute by reference. It is, therefore, an extremely difficult Bill to read and comprehend. I hope that some notice will be taken of a protest of this nature, because this Bill could have been drafted in much simpler terms for the benefit not only of those who will have to consider it in Parliament but of those who will eventually have to work the Act in the country. The way the Bill is drawn will waste an immense amount of time, because a large number of people have to try to administer these water Acts.

I have no such comment to make with regard to Clause 1 of the Bill, which seems to me quite admirable. It gets rid of the definition it does not like and substitutes a new one in its place. If the draftsman had continued in this way throughout the Bill the comments which I made originally would not have been needed. But those of your Lordships who have read this Bill—and I believe the noble Earl will feel as I do, if he has studied it—will no doubt agree that the rest of it might well be much improved in form. With regard to this new definition of statutory water undertakers, to which I have no objection, I would ask only this question: Was it intended by this new definition to limit rather than to extend? If your Lordships will look at Section 59 of the Water Act, there statutory undertakers are defined as: any company, local authority, board, committee, or other person supplying water under an enactment … In this Bill the definition is: … any company, local authority, board, committee, or other person authorised by a local enactment to supply water … When we come to the definition of an enactment, which is also contained in Clause 59 of the Water Act, we see that it is: any Act of Parliament, whether public, general, local or private, any statutory order, or any provision in an Act of Parliament or statutory order. I put this to the noble Earl to see whether he intends to limit the definition. I know that it is widened in another respect, but in some ways it will be limited by the terms of Clause 1 of this Bill. As I understand Clause 2, that is only to enable orders under Sections 9, 12 and 26 to be telescoped. If that is its object I have no objection to it.

Then we come to Clause 3. I do not think the noble Earl dealt with this Clause 1n his opening speech, and I should like to ask him what exactly one part of it means. The clause states: A compulsory purchase order … may be confirmed by the Minister if made and submitted by the applicants for the order under the said Section twenty-three or by any undertakers to whom the order under the said Section nine relates, as the case may be, at any time before the order takes effect. … Which order is the order to take effect? I am not at all sure on this, but I suspect that it is the order setting up the undertakers. Assuming, now, that the compulsory purchase order has been made effective before the order setting up the undertakers as water undertakers has been made, I would ask the noble Earl: What happens if the order making them water undertakers is never made? Yet the water undertakers are the people to whom a compulsory purchase order has been given and in whom at that moment the land is vested. If I have read it wrongly I would only call in aid again the confusing way in which this Bill has been drafted.

I feel that I must make one comment on Clause 4 (2): An Order made under subsection (1) of section twenty-three of the principal Act on the application of persons who propose to become statutory water undertakers may authorize the applicants to supply water in bulk notwithstanding that they are not authorized by that order to supply water otherwise than in bulk. As I understand that phrase, it means that if they are people who are authorized to supply water in bulk they may be authorized by this new order to supply water in bulk! But if it means anything else I should like to know. I have read the clause three or four times and I do not see why people who are authorized to supply water in bulk should not supply water in bulk, or that we should need these words in the Bill at all.

Now I come to Clause 5. I should like to know what is the purpose of Clause 5 (1): No licence shall be required under subsection (3) of section fourteen of the principal Act … in respect of the carrying out of any experimental boring or other work for the purpose of ascertaining the presence of underground water … if the work is carried out, with the consent of the Minister … I should like to know what the Minister does, except give a licence to show that the work has his consent, and what is the real point of difference between "consent" and "licence." It is the Minister who gives the licence and the Minister who gives the consent; and it would be interesting to know what is the difference, because consent comes in a letter which, after all, is in effect a licence from the Minister to do that particular work. Perhaps the noble Earl could tell me at some stage exactly why these words have been put in and what is their effect.

With regard to Clause 5 (3) it is rather more than a drafting point that I want to make. It says there: References in the said Section fourteen to the construction or extension of any well, borehole, or other work for the purpose of abstracting underground water shall be deemed to include references to the installation or modification of machinery or other apparatus for the purpose of abstracting additional quantities of such water. Does this mean that every single time that a water undertaking want to modify a piece of machinery they have to come back to somebody to get consent? I think that is quite unnecessary. We have quite enough cases of people having to apply for licences or consents, and I do not think we should make it any more difficult for these people. Water undertakings are, after all, highly responsible bodies and if they want to modify their machinery I do not see why they should have to come back to some Government Department to gets its leave.

There are three more points on which I want just to touch. One concerns Clause 6 (5). If these people, by making waterworks or anything similar, cause damage by water flooding over, then—on the well-known legal principle that if you build a dam and it bursts, you are liable to some one for damages—I presume they are liable. The person who is liable is the person who accumulates the water. I suppose there are many legal cases on that. But if we are providing that they should not be exonerated from any damage in that respect—and I should like the noble Earl to look into this point before the Committee stage—we ought to provide also that they are similarly liable or not exonerated from payment of compensation, if by their works they cause some trap on the land into which some unsuspecting person falls. If they do make a trap and somebody falls into, say, an unlighted hole, the persons responsible for the work ought still to be liable if they have not taken proper steps to fence that place or to illuminate it

On Clause 8, there is another small point which I wish to make. The clause states: … a local authority shall not be entitled to require that water supplied for domestic purposes to premises used as a house shall be taken by meter by reason only that part of the premises is used by the same occupier for purposes of a profession. I do not know that the word "profession" has ever been defined, but I gather that that, of course, is probably put in to try to cover the case of a doctor or a dentist who uses a certain amount of additional water in the carrying out of his profession. It would not apply, of course, to anybody in the legal profession. It would only very remotely apply to anybody in the Church for an occasional baptism. I should like to know what is meant by the word "profession." So many people nowadays call themselves "professional persons" who really are carrying on a trade or business that I think it would be just as well to know exactly what is meant by the term "profession."

I was rather amazed to find these words in Clause 10, subsection (3), and perhaps at some stage the noble and learned Viscount on the Woolsack would enlighten us upon this subsection: Paragraph 10 of the Second Schedule to the principal Act (which restricts the right of appeal to the House of Lords from a decision of the Court of Appeal on application made under that Schedule) shall cease to have effect. So we are now saying that without the leave of the Court of Appeal, there may be an appeal to the House of Lords under the Water Act; at any rate, under those parts of the Water Act which apply to the compulsory acquisition of land. That may be right or it may be wrong, but we have to remember that there is still another Act of Parliament in operation—namely, the Acquisition of Land (Authorisation Procedure) Act, 1946—which applies in every case to the compulsory acquisition of land. That Act still provides that there cannot be an appeal to the House of Lords without the assent of the Court of Appeal. Therefore, if this is a right thing to do here we ought also to alter Paragraph 15 (2) of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act, 1946. I do not expect the noble Earl to give a reply this evening upon that matter.

I have now outlined some of the points which have occurred to me in reading this Bill. Although it consists of eight pages only, it is one of the most difficult and tedious to read and understand that I have ever encountered. If my noble friends think that I may be exaggerating, I would ask them to get a copy of the Bill and read it for themselves. They would then be able to judge whether the complaint of mine has not a quite substantial justification, at any rate. But we are certainly not going to vote against this measure on the Second Reading. I should, however, like some explanation and, if possible, Government Amendments concerning the points which I have raised, if the Government think that they are substantial, when we come to the Committee stage. I am all in favour of giving these new town development corporations the powers of water undertakers. They must have them. We ought, I think, to make the Bill as easily understandable as possible before it leaves this House. The Bill was initiated here and when it goes to another place there should not be any opportunity to say, "They did not do their work very well there, and we will therefore try to amend it." As I have said, we certainly shall not in any way obstruct or oppose the passage of the Bill, but we would suggest that the noble Earl should consult the draftsmen to see if they cannot make it a little easier to understand.

4.43 p.m.


My Lords, I shall detain your Lordships for a moment only. As chairman of a fairly large water undertaking in the south of England, I should like to associate myself with what the noble Lord, Lord Llewellin, has said about this example of legislation by reference. We are short in our office staff already. This is an important measure in many ways, and it simply bristles with references to Acts which we may or may not have at hand. Some little time ago, a Bill was presented to this House which, in the case of each section which referred to a previous statutory enactment, gave in brackets the effect of that enactment.

Many of your Lordships thought that that was a very good method of presenting such a Bill, and certainly, in a case like this which affects a great many of the public, I think the effect of these references to existing Acts should be made quite clear. As I have said before, most offices of water companies, like other undertakings, are short of staff and they have many problems to meet. They have to increase their water supply by borings and other methods, and they have to take practical measures in many directions. Their time ought not to be taken up with legislative conundrums. Their position ought to be made clear in the Statutes under which they act. I should therefore like to associate myself with the noble Lord, Lord Llewellin, in asking that something should be done to make the Bill a little clearer and that particulars should be given of the sections of any Act which it is proposed to amend.

4.48 p.m.


My Lords, before the noble Earl rises to reply, I also should like to associate myself as a layman with what the noble Lord, Lord Llewellin, has said, because it is, in the case of a layman who has not anything like the noble Lord's Parliamentary experience, almost impossible for a private individual, in a Bill which was only ordered to be printed thirteen days ago, to begin to get to the bottom of what the inferences of this Bill may be. That being so, I am merely rising to say that it could well have been delayed until after Christmas, because any delay in water undertakings now is not due to acquisition troubles and difficulties; it is entirely due to materials. Therefore, it would not matter if this Bill did not get on the Statute Book until next July. I want to enter a caveat on Clause 2, as I may find it necessary on Committee stage either to ask for an explanation or to move an Amendment with regard to that phrase which occurs in the Water Act of 1945, about statutory water undertakers being allowed "to take water from any stream or other source." I will not delay your Lordships this evening, but "other source" may involve, by reckless underground extraction, a very serious effect on the whole economy of the countryside, and not only on the farms themselves. That is really my purpose in rising: to say that I reserve the right to raise this question in Committee and to speak much more fully upon it.

4.50 p.m.


My Lords, I think we shall all agree in principle with what the noble Lord, Lord Llewellin, said about the undesirability of legislation by reference. Your Lordships will remember that the late Lord Salisbury was the champion of a school of thought which attacked any Bill whch contained references to previous Acts without quoting them. Of course, the most important difficulty that arises when you try to apply this principle is that it is apt to make Acts extremely unwieldy if you have to quote in full passages in other Statutes to which the Act refers. What I would gladly do—and I hope this will satisfy both noble Lords who have raised the matter—is to go into the question with the draftsman between now and the Committee stage of the Bill, and if it is possible to improve the drafting in the way that noble Lords desire, then I shall be able to recommend some alternative when we get to that stage.

The noble Lord, Lord Llewellin, said that owing to the construction of its clauses, the study of this Bill required very great patience and considerable intelligence, and I entirely agree with him that it is an extremely difficult and technical Bill. That makes it all the more important for me, because I am most anxious to give the noble Lord an accurate reply, not to venture impromptu on its effect, but to wait until I have had an opportunity of consulting my advisers about the points of construction to which the noble Lord referred. I think he will agree that the majority of his points are points which could quite conveniently be dealt with during the Committee stage of the Bill. The one question which I think I can answer immediately is that about the limiting effect of the new definition of "statutory water undertakers." In fact, the definition includes Public Acts as well as Local Acts, so that it is not limiting in effect. As for the other points raised by the noble Lord, I think it would be wiser to leave them until we reach the Committee stage of the Bill. I will also deal with the point raised by the noble Earl, Lord Portsmouth, on the next stage of the Bill.


My Lords, before the noble Earl sits down, may I ask whether he would look again at this definition, because it does not, I think, apply to any authority under a Public General Act? I only suggest that he should not leave that answer thinking he had satisfied me, but should have another look at that point before the Committee stage.


I will certainly look at it again.

On Question, Bill read 2a, and committed to a Committee of the Whole House.