HL Deb 03 July 1951 vol 172 cc500-28

2.36 p.m.

Amendments reported (according to Order).

Clause 2:

Prohibition on use of stream for disposal of polluting matter, refuse, etc.

(8) Where an offence punishable under this section has been committed by a body corporate, any person who at the time of the commission of the offence was a director, general manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, shall be deemed to be guilty of that offence, unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

In this subsection, the expression "director", in relation to any body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking being a body corporate whose affairs are managed by the members thereof, means a member of that body.

(9) Where a person is convicted of an offence by virtue of the last foregoing subsection as having at the time of its commission been a director, general manager, secretary or other similar officer of a body corporate within the meaning of that subsection (or been purporting to act in any such capacity), and it is shown to the satisfaction of the court that the offence was substantially a repetition or continuation of an earlier offence by the body corporate after it had been convicted of the earlier offence (whether under this Act or otherwise), he shall be liable to the same penalties as the body corporate under the proviso to subsection (6) of this section, including the imprisonment to which it would be liable if a natural person:

Provided that—

THE PAYMASTER-GENERAL(LORD MACDONALD OF GWAENYSGOR)

moved to leave out subsection (2) and insert: and for the purposes of paragraph (a) of this subsection a local authority shall be deemed to cause or knowingly permit to enter a stream any poisonous, noxious or polluting matter, which passes into the stream from any sewer or swage disposal works vested in them, in any case where either the local authority were hound to receive the matter into the sewer or sewage disposal works, or they consented to do so unconditionally, or they consented to do so subject to conditions and those conditions were observed. (2) Subsection (1) of this section shall not, by virtue of paragraph (a) thereof, penalise the discharge of anything into a sewer or sewage disposal works vested in a local authority, so that it passes into a stream, in any such case as aforesaid.

The noble Lord said: My Lords, this is merely a clarifying Amendment. Its purpose is to remove any doubts that there might be about the responsibility of the local authority if conditions attaching to an agreement to receive matter into their sewers were not observed by the person discharging the effluent. This is simply a re-draft. I beg to move.

Amendment moved— Page 2, line 19, leave out subsection (2) and insert the said new words.—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

VISCOUNT SIMON moved, in subsection (8) to leave out all words from "section" down to the end of the first paragraph, and to insert which has been committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to he proceeded against and punished accordingly.

The noble and learned Viscount said: My Lords, on the Committee stage of this Bill the Lord Chancellor made a speech in which he put before the House for their reflection some considerations which he thought ought to be fully and maturely weighed before we decided whether or not Clause 2 (8) of this Bill should be amended; and he asked that those who were considering the matter should consider his words as reported, because he wished us to form our judgment upon them and to inform him of the result of that further reflection. I was not myself able to be here on the Committee stage, but my noble friend Lord Swinton was, and he took charge of the matter. Of course, both he and I have considered very carefully what the Lord Chancellor then said. I admit at once that there were considerations then mentioned which should be carefully weighed. At the same time, I submit to the House and to the Lord Chancellor that, on the whole, the Amendment which we then moved and which is upon the Order Paper at this stage, is one which it would be proper to make.

If that Amendment is made, the result will be that as regards offences under this Bill it will rest upon the prosecution to prove their case. Subsection (8) would then read: Where an offence punishable under this section which has been committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. I submit, with great respect, that that is the right way to put it. This was the form which was adopted (I believe at my suggestion) in an earlier Act, the Sea Fish Industry Act; and I think the case for throwing the burden upon the prosecution is much greater in regard to the pollution of rivers than it was in the Sea Fish Industry Act. The pollution of a river may arise from a combination of causes. I suppose sometimes from a combination of chemicals. It is a most serious thing, and I am wholeheartedly in favour of the effort being made in this Bill to bring about an important and effective change in the law in order that our rivers may be purified and kept pure. But to throw the burden not only on the director but even on the secretary of a company, because the company itself has committed the offence is, I think, to go too far, and is contrary to the usual tradition which we strive to maintain in this matter—namely, that before a man can be said to be guilty of an offence, the offence must be proved against him.

If I may say so, with great respect to the Lord Chancellor, having most carefully read the speech he made on the Committee stage, I think some of his observations might have been met in this way. He made much of the case of a private company which may have only one director, and in which, as he was trying to suggest, the action of the company must, in most cases, be regarded as practically identical with the action of the director. I see the force of that argument. But, as it stands, the Government's Bill does not apply only to private companies with but one director; it applies to all companies, public and private. It applies to the largest company with directors in different parts of the Kingdom, each of whom may have charge of a particular compartment in the company. Therefore, whatever might be said in favour of the Bill if it applied only to private companies, does not seem to be a very conclusive argument when the measure applies to all companies. public and private, of every sort and kind.

I think it right to observe that the Lord Chancellor went a little wide in the particular analogy he drew in regard to previous legislation. I notice that in Column 327 of Hansard dated June 26 last, he said: For a long time the law has been that if the company is guilty of such an offence, you can, if you are so minded—and, of course, you apply the rule with common sense—charge the director, and he has to show that he has not been guilty of any complicity. If I may say so, that is a slip which we are all liable to make from time to time. There is no such provision in the factory law. The factory law does not in the least provide that because there has been a failure on the part of a company to fence machinery, a director is to be presumed to be guilty of that offence until he proves the contrary. Nor, I think, is there anything of that kind in the Mines Act. But there are cases undoubtedly which could be quoted, and the question is whether we should follow those analogies or whether, on the contrary, we should, in this instance, maintain the ordinary law. I hope the Lord Chancellor will say that he will, on reflection, accept the view which, after considerable inquiry by my noble friend Lord Swinton, we find is the view that widely prevails in this House—that, in this instance, the Amendment we have put down is one which ought to be made.

As I cannot speak again on this matter, may I just observe that if the Lord Chancellor's view was that he was going to accept this first Amendment and then ask that we did not move the next Amendment (and I imagine we should be willing not to do so). I fancy it would be necessary slightly to vary the terms of the Amendment which I am now moving. The Lord Chancellor will see if he looks at subsection (9), which I imagine he wishes to stand in the Bill as it is, that that subsection not only applies to a director, general manager, secretary or other similar officer of a body corporate but goes on to say that it includes a person who has "been purporting to act in any such capacity." Our Amendment, as it appears in the Marshalled List, does not include those words which appear in brackets in subsection (9). Unless the Lord Chancellor can better advise me, I think that the Amendment which I am now moving should be moved in this form. It should be as it is on the Paper, but at the end of the fifth line I think there should be included these words which are not there at present: "or any person purporting to act in any such capacity. "This is purely for the purpose of making our Amendment chime with subsection (9). If the Lord Chancellor thinks it is right to do so I will move the Amendment in that form.

Amendment moved— Page 4. line 1, leave out from ("section") to the end of line 10, and insert the said new words.—(Viscount Simon.)

THE LORD CHANCELLOR (VISCOUNT JOWITT)

My Lords, in reference to the last point, I suggest to the noble and learned Viscount that I might be allowed to look at this matter. There is no reason why we should not have an Amendment on Third Reading, so long as it is on the Marshalled List now before us. I should like to ask the draftsman whether or not the Amendment which has been suggested by the noble and learned Viscount should be accepted. On the last occasion, I set out what I thought to be the relevant facts which your Lordships should consider, and I spoke about what I believed to be relevant law. I also indicated that if, on reflection, notwithstanding what I said, your Lordships wanted this Amendment, I would accept it. I put the responsibility fairly and squarely or your Lordships, and though my law may be bad, my morals are unimpeachable.

Your Lordships have thought fit to place this Amendment on the Marshalled List, and I shall therefore advise the House to accept it. But I should like, while doing that, to tell your Lordships what I think about it, and, at the same time, to make an apology for having misled your Lordships as I did on the last occasion through the old error of not having verified my references. It is not the fact that the Factories Act or the Mines Act contains a clause on these lines. No doubt the reason they were considered analogous, and why I too readily assumeded that they contained this clause, is this. Under the Factories Act—to take that first—the owner or occupier of a factory is absolutely liable for any breach of regulation which takes place in that factory. It is nothing to the point for him to say of somebody else: "I told him to do this," or "I told him not to do that," or "I had a good staff and I trusted them; it was not my fault at all." That is no defence. The only "get-out" is a "get-out" similar to that which we put into the Fireworks Act the other day. This is that, if a person charged—the owner or occupier of a factory—can show affirmatively that it was not his fault but the fault of "A. B.," whom he names, and can bring it home to "A. B.," then only can he get off. If "A. B." has been guilty of causing an explosion that results from the breach of duty "A. B." cannot get off at all. It is an absolute liability, with an escape clause which operates only if the owner or occupier can show that someone else is to blame and can bring that someone else before the court and get him fined.

In the Mines Act, I think I am right in saying—I am not going to descant about this not having verified my references again—there is, I think, an absolute obligation on the owner of a mine if a breach of regulations occurs. He is responsible, oven if what happens is in no sense his fault; even if it was done directly against his directions he is responsible. I am not sure whether there is an escape clause there or not. That was the reference which I should have made to these cases. I should not have said there was this directors clause in the Acts I mentioned. If the owner of a mine or factory is a limited company, there is nothing in either of those Acts to put the onus of proof on the directors. The precise analogies between the wars were those cases where we inserted precisely this directors clause. We put it in the Official Secrets Act, 1920, the Dentists Act, 1921, the Treaty of Washington Act, 1922, the Representation of the People (No. 2) Act, 1922, the Dangerous Drugs and Poisons (Amendment) Act, 1923, the Theatrical Employers Registration Act, 1925, the Midwives and Maternity Homes Act, 1925, the Companies Act, 1928, the Betting and Lotteries Act, 1934, and the Building Societies Act, 1939.

Then came the war, and with it of course the Defence Regulations. And one of the Defence Regulations was in this form. I believe that there are a very large number of illustrations since the war in which Statutes have had this form of clause. As I see the noble Earl, Lord Munster, present, I should like to refer to the Disabled Persons Employment Act, 1944. It was passed at the end of the war, but was intended to be permanent and to carry through the post-war period. Not for the first time the noble Earl spoke words alike of eloquence and sound common sense. I refer to them not in the least by way of criticism, but because I wish to use them to fortify my argument. The Lord Chancellor then was the noble and learned Viscount, Lord Simon. On two pages in Hansard before this he had been in operation. He had no doubt been sitting where Lord Chancellors sit during Committee stage, and I have no doubt that, like all Lord Chancellors, he would be quick to point it out if any of his lieutenants made a mistake. But here was no mistake, but sound common sense on precisely the same clause.

On that occasion the question, it being compulsory to employ a certain number of disabled men, was what was to happen to the directors of a company which breached its obligations. The noble Lord, Lord Teviot, not perhaps the last of the Radicals, moved an Amendment to do away with this clause. which he did not like. It was in answer to him that the noble Earl, Lord Munster, said words so apposite that I should like to quote them. If I accepted this Amendment it would render practically unenforceable the clauses of the Bill which deal with companies. In practice, I am advised the Amendment would mean that the director or officer of a company who has taken a decision which led to the company acting in contravention of the Bill could hardly in fact ever be made answerable. The facts showing consent or connivance on his part would hardly at any time be discoverable by those whose duty it would he to enforce the provisions of the Bill. On the other hand, these facts will he fully within the knowledge of the director or of the officer and he should not really have any difficulty whatever in proving his innocence. So convinced was the noble Lord, Lord Teviot, by these arguments that he withdrew his Amendment.

I have been at pains to find out to what extent this provision has been enforced and I am told by the Director of Public Prosecutions that it has rarely been used. Its merit is rather that it acts in terrorem, and makes directors careful to avoid this sort of offence. I believe that the fact that it is there has been a valuable factor in preventing the commission of offences. After all, it is right that directors dealing with these important public matters should see to it that their company does not commit offences. I take the view that this Amendment, which I accept because I promised that I would accept it, is a great mistake. I believe that the pollution of our rivers has long been a public scandal. I believe, and all Parties agree, that we ought to take adequate and vigorous steps to stop this pollution. I believe that if we have such a provision in the Bill it would make it plain that a company committing an offence by pouring effluent into a river would be held responsible and I feel sure that it would be perfectly healthy and proper, and in accord with modern legislation, to hold them responsible. I explain this in accepting the Amendment because I promised to leave it to the collective wisdom of the House, and the noble Viscount, Lord Swinton, who I know has taken trouble to ascertain it, has shown that this Amendment represents the collective opinion of the House. But I am no party to this scheme. I think it is a mistake. I believe that it will be difficult to prove, as the noble Earl, Lord Munster, thought, that the directors are responsible. I believe that by inserting this Amendment your Lordships will have gone a long way towards weakening the effectiveness of this Bill.

I should like to correct another error which has been made. The offence here is under Clause 2 (1) of the Act which says: Subject to this Act, a person commits an offence punishable under this section— (a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter; or…. On the last occasion I said that I was inclined to think that if some worker, either by mistake or by malice aforethought, opened the wrong stopcock and allowed effluent to enter the river, the company would be responsible. I do not think that is right. It would not be right to say that the company "causes or knowingly permits"—and I stress"knowingly"—effluent to enter a stream unless the act has been done by some person for whom the company was responsible.

I should like, if I may, to make one observation in regard to the next Amendment. I hope that the noble Viscount, Lord Swinton, will not move it. I realise that he is making a concession. but on further reflection I think the Amendment would cause great difficulty. It is one thing to take into consideration previous convictions when dealing with an offender after he has been found guilty, but we get into a region of great difficulty if we are to regard the question of previous convictions as a criterion of whether an offence has been committed. Therefore I would ask the noble Viscount not to move the next Amendment. If he is willing to adopt that course, I will consult with the draftsmen, and if I find that some tidying up is necessary I will put down on the Order Paper an appropriate Amendment on Third Reading, so that your Lordships can see it at that stage. I hope that your Lordships will agree that I am right in following what I have said before, and accepting the Amendment now before your Lordships in order to carry out the obvious wish of the House.

VISCOUNT SWINTON

My Lords, I am very much obliged to the noble and learned Viscount the Lord Chancellor. As he said, I took great trouble to ascertain the opinion of as many people as I could consult, and the consensus of opinion was that it would not be right to shift the onus of proof. In putting the question to those whom I consulted, I assumed that it would make the situation the same as in the Factories and Mines Acts. I now see that both the noble and learned Viscount the Lord Chancellor and I unintentionally went too far in thinking that. I will not go over all the arguments advanced before, some of which my noble and learned friend has dealt with to-day. I would only say that hard cases make bad laws. In cases where there is one man running a company, obviously it is right that he should be held liable. But I cannot see that because one man conducting a business must be considered responsible for all acts of omission and commission thereunder, it would be right to make equally liable, prima facie. masses of directors who could not have had anything to do with an offence—though I appreciate that they would probably not be prosecuted.

From the arguments we have heard, I draw the conclusion that sometimes this provision is inserted in Acts of Parliament and sometimes not. I think it is desirable that both Houses should consider the merits of the case on every Bill as it comes up and decide whether or not the onus should be shifted. Perhaps on some future occasion it would be worth while our considering whether a more limited clause cannot be drafted which meets the cases the Lord Chancellor has in mind—the one-man company, and so on—and yet is not so wide. I will not move the next Amendment if the Lord Chancellor feels that it would be a mistake. It represents a genuine attempt to meet a difficult case, but I did not look at it from the point of view of a previous conviction creating a criterion; it was only that the previous conviction shifted the onus of proof. I feel that if a company has been convicted under this Act, a special obligation is placed upon all the directors to see that every possible step is taken in future, and in that case they would be liable to be prosecuted, unless they could prove that they were innocent. I thought that I had done something rather ingenious, and I believe that at first blush the Lord Chancellor rather liked the look of it. However, if he feels on the whole that we had better not have my Amendment, then I will certainly not move it, and I gladly accept the proposition he has put to us.

LORD SALTOUN

My Lords, like many of your Lordships I have taken some trouble to ascertain the state of our rivers, and I entirely agree with the Lord Chancellor about the urgency of this matter. As it is going in the way it is, I would interpose to ask the Government to remember that the Amendment is, after all, in accordance with the, Common Law principles of our country. If necessary, I hope they will be prepared to vote some extra money towards clearing up the matter. One small man is prosecuted, but there are half a dozen others doing exactly the same thing. It is only by securing a conviction against one man that the fear of the law can be put into the others. Therefore, if we are willing to spend a little extra money, even though the prosecutions may not succeed, it will let people know that if they are caught transgressing against this Act prosecution will follow.

On Question, Amendment agreed to.

3.5 p.m.

LORD LLOYD moved, after Clause 3 to insert the following new clause:

Registration of order under s. 3

"—(1) As soon as may be after an Order has been made under subsection (1) of the last foregoing section relating to any use or proposed us of land—

  1. (a) it shall be registered in the prescribed manner in the register of local land charges by the proper officer of any county borough or county district council in whose area the land or any part of that land is situated; and
  2. (b) it shall be the duty of the river board to supply a certified copy of the order to the proper officer of the council.

The power conferred by subsection (6) of section 15 of the Land Charges Act, 1925, to make rules for giving effect to the provisions of that section shall be exercisable for giving effect to the provisions of this subsection, and in this subsection the expression 'prescribed' means prescribed by rules made in exercise of that power.

(2) If after the registration of an order under subsection (1) of this section any person (not being a person against whom personally the order had been made) commits an offence punishable under subsection (1) of section two of this Act and involving a use of land which contravenes the terms of such order, the provisions of subsection (2) of the last foregoing section shall apply in the same manner as if such order had been made against him personally:

Provided that the provisions of this subsection shall not so apply if such person satisfies the Court that at the time of the offence he did not have actual knowledge of such order; and for this purpose subsection (1) of section one hundred and ninety-eight of the Law of Property Act, 1925 (by which the registration of any instrument or matter under the Land Charges Act, 1925, is deemed to constitute actual notice thereof) shall not be deemed to apply."

The noble Lord said: My Lords, Clause 3 provides that where a river board apprehends that a contravention of Clause 2 (1) is likely to occur, they can go to the court and secure an order prohibiting that contravention. Such an order, of course, would be perfectly valid, but would, I think, be an order against the individual owning a particular piece of land at the time. The River Boards Association, who are interested in this Amendment, feel that something more is necessary if their task is not to be made extremely difficult in applying this clause. They feel—and I think they may well be right—that the whole intention of Clause 3 could be defeated if there were a change of ownership in the land. If a river board had been to the court and secured an order against an individual, that order would no longer be valid if the individual were to sell the property, and they would have to apply for a fresh order from the court against the new owner. Incidentally, that would involve them in a great deal of trouble in going to the court and securing the orders; and secondly, it would involve a great amount of supervision of the river if they were to be aware of every change that was taking place. That is the reason why I have put down this Amendment.

A similar Amendment was put down in the other place, when two objections were raised to it. The first was that the method suggested in this Amendment—that is to say. that these orders should be registered as a land charge—is an improper way of dealing with the matter. and that the local land registries should not be used for such a purpose. I do not think there is a great deal of validity in that argument, certainly not since the Town and Country Planning Act, 1947, because all the land registries have been completely revolutionised by that Act, and there is now a mass of restrictions which are registered governing, every kind of use of land. The other objection was that it would be unfair to impose on some new owner of land liability for the offences of his predecessor. Supposing his predecessor had offended once under this Act, then he would be liable to severer penalties on a second occasion. Though here I bow to the opinion of the noble and learned Viscount on the Woolsack, as it is a legal matter and I do not pretend to know the answer, I should have thought that since the original order applied to another individual, his past misdemeanours could not be held against some fresh individual if this Amendment were adopted. For those reasons I feel that there is a strong case for putting something of this kind into the Bill, and I am convinced that it will assist the river boards in carrying out their task. I beg to move.

Amendment moved— After Clause 3, insert the said new clause. —(Lord Lloyd.)

LORD MACDONALD OF GWAENYSGOR:

My Lords, I am sorry, but I cannot accept this Amendment, and some of the reasons why have been given by the noble Lord, Lord Lloyd. I feel that the Bill, as it stands, does make some provision against a newcomer being misled in any way. If the noble Lord looks at Clause 3 (5) he will see that it requires that the river board shall furnish to any person appearing to them to be interested particulars of any orders that have been made under subsection (1) of the clause. That, to begin with, is a good piece of information which would be supplied to the newcomer. But since the debate in another place the Government have tabled an Amendment to Clause 7 which provides that the river boards shall keep registers of conditions imposed with regard to new outlets and new discharges. Therefore the buyer will be fully aware of all that has happened to his predecessor, and will not buy in ignorance. I should think that, before making the purchase. he would take into account all he knows of what has happened in the past. I agree with the noble Lord's definition of what is intended by Clause 3. It is intended to be personal: that is to say, an instruction by a court to a particular person not to do something, or to cease from doing something. I cannot believe that the man who buys the land will deliberately do something which he knows will, in all probability lead hint into court. I think the provision made is adequate, and I am advised that this Amendment cannot be accepted.

3.10 p.m.

VISCOUNT SWINTON

My Lords, I am sure we all wish to do the right thing here. I am a little worried, however, at the argument which the Paymaster General has advanced. To start with, I should like to know the answer to this question, as a piece of legal construction under the Bill, and also I should like to know the intention. Clause 3 deals with an order which is made against an occupier because he has committed a breach of the Act, or because something which is contemplated is likely to be a breach of the Act. What I want to know is this: Is it or is it not intended that that order, having been made, shall, so to speak, run with the land? Obviously it is only common sense that it should. It is no good making an order upon me if, when I sell the land to-morrow morning, the man who comes in is not equally bound. I gather that we are agreed upon that point. Then we agree that it is the common intention. Then if it is the common intention does the Bill, as drafted, give effect to it?

I will say exactly why I ask that question. As the Paymaster General has said, the Government have found it necessary—and I am very much obliged to them for their researches—to put down a number of Amendments to Clause 7, which is the clause dealing with the imposition of restrictions on new outlets. As I understand it, the reason the Government have put down those Amendments is because it was discovered that if land was sold, the restrictions on the new outlet would not apply to the purchaser. In fact, without the Amendment the restrictions would not run with the land and, therefore, the buyer would be in no way bound. If it is right—and I am sure it is—that the restrictions under Clause 7 should run with the land, then certainly the restrictions under Clause 3 should run with the land, and the Government have already indicated to me that that is their intention. I should have thought that we ought to have some analogous provisions in Clause 3. If it is not right that the Land Registry should be the machine—which is the object of the Amendment of my noble friend Lord Lloyd—why should not the register which, under the Government's Amendments to Clause 7, it is now proposed should be instituted and kept by every river board, be the machine? I hope that I have made my difficulties clear, and I hope that the Lord Chancellor can resolve them.

THE LORD CHANCELLOR

My Lords, I have made one mistake already in stating the law on this Bill, and I hesitate greatly in stating my views of the law upon a matter which I was not aware was going to be raised. With due respect to my noble friend Lord Macdonald, I am informed that the order under Clause 3 is not meant to run with the land. It is meant to be like an injunction: it is a mere order to enforce the general law and not an order to impose special duties. If anything has gone wrong, I will take an opportunity of looking into it between now and Third Reading and discussing it with the noble Viscount. If we find there is anything wrong, then we can put down an Amendment on Third Reading. I would rather leave it like that, if I may. I am merely telling your Lordships what I understand from those who have drafted the Bill.

VISCOUNT SIMON

My Lords, I think that is a very wise course. It is a novel question for me, too, and I would not rush in where Lord Chancellors fear to tread. There are, however, two points which occur to me on looking at Clause 3. One is that on page 5, line 20, the order is described as "an order made against a person." The second point which occurs to me is that one of the eases under Clause 3, where such an order might be applied for, is referred to in paragraph (c) of subsection (1) as follows: by reason of any use or proposed use of a vessel in a defective state of repair for the carriage of cargoes… It would be rather difficult to imagine that an order obtained in that case ran with the vessel. I suppose that it would he an order against the owner or charterer of the vessel. I am far from saying what is right or wrong, but those considerations do occur to one when one looks closely at the language of the clause. Whether it should be otherwise [...]s entirely another matter. I rather sympathise with what my noble friend Lord Lloyd has said.

LORD MACDONALD OF GWAENYSGOR

My Lords, there seems to be a slight misunderstanding. I am not aware that I expressed an opinion. It may be that when I nodded, the noble Viscount thought I was approving or agreeing to something.

VISCOUNT SWINTON

I thought so.

LORD MACDONALD OF GWAENYSGOR

I was not. I want to make it clear that I expressed no opinion, and where Lord Chancellors and ex-Lord Chancellors do not express an opinion I should hesitate to do so.

VISCOUNT SWINTON

I did not think the noble Lord was expressing an opinion on the law. I thought he was expressing what was his intention.

LORD LLOYD

My Lords, in withdrawing my Amendment, may I say two things? First, I apologise to the noble and learned Viscount for not putting down this Amendment earlier. It is rather a complicated one, and my attention was drawn to it only yesterday. The other thing which I should like to emphasise again is that the Amendment has been requested by the River Boards Association, who are the people who have to make this Bill workable, and I hope for that reason it will receive consideration. The noble Viscount has said that it will, and on that assurance I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD MACDONALD of GWAENYSGOR

My Lords, the noble Earl, Lord Onslow, was good enough to withdraw an Amendment at my request during the Committee stage. This Amendment is designed to do what he desired to do. I beg to move.

Amendment moved— Page 7. line 8. leave out ("animals or of other things") and insert ("things of any class or description").—(Lord Macdonald of Givaenysgor.)

VISCOUNT SWINTON

My Lords, I suppose the lawyers are satisfied that, having cut out the word "animals" and put in "things of any class or description." a "thing of any class or description" does include a live animal.

LORD MACDONALD OF GWAENYSGOR

My Lords, the advice I have received is that this Amendment will remove any doubt whether the subsection covers all kinds of articles that should not be washed in rivers.

VISCOUNT SWINTON

Alive or dead?

LORD MACDONALD OF GWAENYSGOR

I was not given a clear description of that, but I understood that it included animals.

VISCOUNT SWINTON

Perhaps the noble Lord will make sure of that.

LORD MACDONALD OF GWAENYSGOR

I will look into it.

VISCOUNT SIMON

Does it include a dirty human being?

LORD MACDONALD OF GWAENYSGOR

I will look into that, too.

On Question, Amendment agreed to.

VISCOUNT SWINTON

My Lords, during a previous stage of the Bill the Paymaster General was good enough to say that he would make sure whether or not the local authorities want this particular paragraph inserted. We all wish to do what the local authorities desire, and they have now had an opportunity of considering it. I beg to move.

Amendment moved—

Page 7, line 14, at end insert— ("(d) for regulating the siting and construction of storm overflows of drains or sewers carrying both sewage effluent and surface water, and the mode of discharge of sewage therefrom.")—(Viscount Swinton.)

LORD MACDONALD OF GWAENYSGOR

My Lords, I should like to express my gratitude to the noble Viscount because he gave me plenty of time with regard to this Amendment. I am able to assure him that we have been into both the questions he raised—whether the Minister had consulted the local authorities and why the provision is in the Scottish Bill and not in this one. As regards the first inquiry, I may say that the Minister has consulted local authorities and the result of the consultation was that two associations—the Association of Municipal Corporations and the Urban District Councils' Association—are strongly opposed to the principle of the Amendment. As regards the second inquiry, I may say that the Scottish Bill and the English Bill have been brought into line in this matter.

VISCOUNT SWINTON

My Lords, I am much obliged to the noble Lord, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD LLOYD

moved to add to subsection (1): and before making any such by-laws shall make such survey (if any) as may be necessary of the area it which that stream or part of a stream is situated

The noble Lord said: My Lords, this is an Amendment which my noble friend said he was going to put down again on the Report stage. The Amendment concerns the recommendation of the Hobday Report about the making of a survey. I do not think I need go into detail. I beg to move.

Amendment moved— Page 7, line 20, at end insert the said words. —(Lord Lloyd.)

VISCOUNT SWINTON

My Lords, I think there should be some slight Amendment to this Amendment. After the word "by-laws," in the Amendment as printed, ought there not to be the words: by virtue of paragraph (a) of this subsection."? I think the Government wanted that.

LORD MACDONALD OF GWAENYSGOR

Yes.

LORD LLOYD

My Lords, I beg leave to withdraw my Amendment as printed.

Amendment, by leave, withdrawn.

VISCOUNT SWINTON

My Lords, I beg to move the Amendment in its amended form.

Amendment moved—

Page 7, line 20, at end insert— ("and before making any such by-laws by virtue of paragraph (a) of this subsection shall make such survey (if any) as may be necessary of the area in which that stream or part of a stream is situated")— (Viscount Swinton.)

LORD MACDONALD OF GWAENYSGOR

I am pleased to accept the Amendment as amended.

On Question, Amendment agreed to.

LORD LLOYD moved, in subsection (2) to delete "or not to be." The noble Lord said: My Lords, this Amendment, which is rather reminiscent of Hamlet, deals with a small point of a technical nature. I have put down the Amendment to obtain an indication of the Government's intentions on this matter. Subsection (2) of Clause 5 provides that when river boards make these by-laws they may provide what proportion of effluent is to be allowed, as it were, as a minimum. If the effluent is a powerful one it would have to be more diluted to be permissible, and vice versa. It is a question of the degree or pollution. This subsection now says that these by-laws may provide for an effluent to be, or not to he, so treated according to the relation between the volume and rate of the flow of water…. This leads one to believe that in some cases the standard might be completely abandoned. Some minimum standard should, however, be laid down, and my object is to obtain from the Government an assurance that there will be such a standard, except in very exceptional instances. In estuarial. waters there may be a high ratio of water in comparison with the effluent. That would be an exceptional case, in which one would not wish to lay down a standard. We should like an assurance that these words are intended to cover only exceptional cases. I beg to move.

Amendment moved— Page 7, line 27, leave out ("or not to be")— (Lord Lloyd.)

LORD MACDONALD OF GWAENYSGOR

My Lords, I anticipated that this Amendment was put down for the purpose which the noble Lord mentioned, and I wanted to be able to give some such assurance as the noble Lord desired. I can give him this assurance: that the Minister will have regard to all relevant factors, will not allow the use of this power to permit small discharges into a stream of a substance, which, because of its highly toxic character, ought not be be admitted even in the smallest quantities.

LORD LLOYD

My Lords, I am grateful to the noble Lord for that assurance, and beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 7 [Restrictions on new outlets and new discharges]:

LORD LLOYD

My Lords, this is little more than a drafting Amendment. Under this subsection, when the river board' receive an application for consent for outlet or discharge they may either grant it or not, as they feel disposed. This seeks merely to give them the right, before making up their minds, to receive full information about the proposed discharge, since without this information they will be unable to arrive at a proper decision as to whether or not to give their consent. I beg to move.

Amendment moved— Page 9, line 35, after ("may") insert ("require the submission of plans, sections and specifications of the new or altered outlet, or full particulars of the new discharge, as the case may be, and may").—(Lord Lloyd.)

LORD MACDONALD OF GWAENYSGOR

My Lords, I am advised that this Amendment is not necessary to achieve the purpose the noble Lord has in mind.

LORD LLOYD

So long as the noble Lord is satisfied that the intention of the Bill is carried out, I will not press the Amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

LORD MACDONALD OF GWAENYSGOR

My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 9, line 36, leave out from ("impose") to end of line 38 and insert ("being—

  1. (a) in the case of a new or altered outlet, conditions as to the point of discharge into the stream or the construction of the outlet, or as to the use of that outlet or any other outlet for trade or sewage effluent from the same land or premises; and
  2. (b) in the case of a new discharge, conditions as to the nature and composition, volume or rate of discharge of effluent from the land or premises from which the new discharge is to be made.")—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

My Lords, this also is a drafting Amendment, consequent on the previous Amendment. I beg to move.

Amendment moved— Page 9, line 41, leave out ("requirements") and insert ("conditions").—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

My Lords, I beg to move this Amendment.

Amendment moved— Page 9, line 42, leave out ("authority") and insert ("board").—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

moved, after subsection (3) to insert: (4) Where, without the consent of the river board, there is brought into use a new or altered outlet for the discharge of trade or sewage effluent to a stream, or there begins to be made a new discharge of trade or sewage effluent to a stream, the river board may give the person using the outlet or making the discharge, as the case may be, a notice imposing any such conditions as they might have imposed on an application for their consent for bringing the outlet into use or beginning to make the discharge. (5) A river board shall from time to time review any condition imposed under this section (other than a condition to be satisfied before an outlet is brought into use or a new discharge begins to be made), and may give the person using the outlet or making the discharge, as the case may be, a notice making any reasonable variation of or revoking any such condition; and the Minister may, if he thinks fit so to do direct the board to vary or revoke any such condition and, if the board fail within such period as the Minister may allow to give effect to any such direction, the Minister may himself give a notice as aforesaid. (6) Any conditions imposed under this section shall continue in force (subject to any variations under the last foregoing subsection) until revoked under that subsection, and shall he binding on any person using the outlet, or discharging effluent from the land or premises, to which the condition relates. (7) Every river board shall maintain a register containing such particulars as the Minister may direct of conditions which have been imposed under this section in relation to outlets in their area, or in relation to effluent from land or premises in their area, and are for the time being in force (except conditions to he satisfied before the outlet is brought into use or the new discharge begins to be made), and so much of the register as relates to any outlet. or to any land or premises—

  1. (a) shall be open to inspection at all reasonable hours by any person appearing to the river board to he interested in the outlet, or in the land or premises, as the case may be, or by any person authorised by him; and
  2. (b) in favour of a person charged under this section with causing or knowingly permitting to enter a stream an effluent not complying with any such conditions, shall he conclusive as to the conditions with which the effluent is required to comply."

The noble Lord said: My Lords, subsection (4) gives the river board the option of imposing conditions in respect of new outlets or new discharges that have been operated without prior consent. Subsection (5) provides that conditions (other than those to be satisfied before a new outlet is brought into use or a new discharge is made) shall be reviewed from time to time by the river board. It allows for variations to meet altered conditions. The Minister is empowered to direct the board to vary or revoke conditions anti may himself do so if the board fail to give effect to the direction. The power is rendered necessary by the next succeeding subsection. Subsection (6) provides that, unless varied under subsection (5), conditions shall continue in force until revoked, and shall be binding on any person using the outlet or discharging effluent from the land or premises. Subsection (7) provides that the river board shall maintain a register of conditions imposed. Persons appearing to the river board to be interested are authorised to inspect entries relating to land or pre rises with which they are concerned. The entry is to be conclusive evidence, in favour of a person charged with an offence under the clause, as to the conditions with which the effluent must comply.

Amendment moved— Page 9, line 43, at end insert the said subsections.—(Lord Macdonald of Gwaenysgor.)

VISCOUNT SWINTON

My Lords, I must congratulate the Paymaster-General an I the Parliamentary draftsmen on having c one such an enormous amount in so short a time. Not only have they got this worthy and extremely complicated Bill into a much better form, but they have at the same time carried Scotland with them, unifying the English and Scottish Biils in the process. The noble Lord was good enough to make me an apology for the fact that the Amendments could not appear on the Order Paper earlier. I would say merely that I think it is remarkable that they have got on to the Order Paper at all within the time. It certainly is much more satisfactory that we should see them here, and dispose of them now; then any little adjustment that may have to be made can be done on Third Reading. I readily accept this and the following Amendments.

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

My Lords, this Amendment is a drafting Amendment. I beg to move.

Amendment moved— Page 10, line 23, leave out from ("conditions") to ("by") in line 25, and insert ("or of any variation of any conditions shall be determined for the purposes of this section").—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

My Lords, the existing subsection (7), as amended by this Amendment, provides penalties for contraventions of the provisions of tie clause in regard to the opening of new outlets and the beginning to make new discharges. I beg to move.

Amendment moved— Page 10, line 26, leave out from beginning to ("shall") and insert ("where a person, in contravention of this section, brings into use a new or altered outlet or begins to make a new discharge without obtaining the consent of the river board or without observing any conditions imposed by the river board in giving their consent under this section (being conditions to be satisfied before the outlet is brought into use or the new discharge begins to be made), he").—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

My Lords, subsection (8) provides that if a person discharges an effluent which does not comply with conditions imposed under the clause, he shall be guilty of an offence punishable under Clause 2. This is necessary because a discharge may conceivably comply with a standard imposed by a by-law which has taken into account the conditions imposed, and compliance with that by-law would be a defence against proceedings. Subsection (9) applies to Clause 3 of the Bill for the purpose of restraining apprehended contraventions. of subsection (8). I beg to move.

Amendment moved—

Page 10, line 31, at end insert— ("(8) No person shall cause or knowingly permit to enter a stream by an outlet, or from land or premises, in relation to which conditions have been imposed under this section and are for the time being in force, a trade or sewage effluent not complying with those conditions, and any person who does so shall he guilty of an offence punishable under section two of this Act. (9) Section three of this Act shall apply in relation to the last foregoing subsection as it applies in relation to subsection (1) of section two of this Act.")—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to.

LORD MACDONALD OF GWAENYSGOR

My Lords, the purpose of this Amendment is to provide that, if proceedings are taken under Clause 3 of the Bill because there has been a breach of conditions imposed in regard to a new outlet or a new discharge the expression "stream" in Clause 3 shall be interpreted as having the much wider meaning it has in this clause. I beg to move.

Amendment moved— Page 10, line 35, at end insert ("and the expression 'stream' in section three of this Act as applied by the last foregoing subsection shall be construed accordingly").—(Lord Macdonald of Gwaenysgor.)

On Question, Amendment agreed to

Clause 9:

Combination of sewage disposal or sewerage systems

(3) Where the Minister makes an order under the said paragraph (b), the local authorities concerned may enter into an agreement for giving effect to the order and as to their respective rights and liabilities in relation to the communication or discharge, and in the event of any failure to agree the difference shall be determined by the Minister.

LORD LLOYD moved to add to subsection (3): Provided that where one or more of the local authorities concerned is a development corporation within the meaning of the New Towns Act, 1946, any such difference as aforesaid shall he referred to arbitration in accordance with the provisions of the Arbitration Act, 1950.

The noble Lord said: My Lords, I feel that this Amendment is of some substance. Clause 9 provides that in certain circumstances local authorities may have to combine their sewerage arrangements in districts or in some other way. That clause gives the Minister power to order them to do so, and, if they cannot agree as to their respective rights and liabilities, it gives the Minister the responsibility of determining any difference that may arise between them. The Amendment I am moving is at the instance of the Hertfordshire County Council, my own home county council, who are particularly affected by the question of new towns and development corporations, such as Stevenage. The County Council are rather apprehensive about this matter because, of course, a development corporation comes within the meaning of the term "local authority". In point of fact, they apprehend that several boroughs or local authorities may be compelled to join up their sewerage systems with the new system which is running from Stevenage, and that there may arise some such question as is envisaged in this clause.

We really come back to our old friend of the Minister being judge in his own case, because clearly the Minister of Local Government and Planning who is responsible for these development corporations is the Minister referred to in this Bill. Therefore, if there were to be such a dispute, the Minister would be placed in the position of having to be judge in his own case. That is a principle which we, on this side, have always felt to be wrong. I know it has been argued that there is a precedent for this in the New Towns Act of 1946, where, under Section 9, again in exactly similar circumstances, the Minister was appointed as arbitrator in such matters. In that case, however, when that Act was passed the Minister was the Minister of Health. Therefore, if there was a dispute between a development corporation of a new town and any other local authority, the Minister was an impartial person. Since then, as your Lordships know, the public health functions of the Minister of Health have devolved upon the Minister of Local Government and Planning. Therefore, not only do I think that the principle in this Bill is wrong but, in point of fact, I think that the original provisions of the New Towns Act, 1946, are also wrong. They were right when they were passed but something has happened in the meantime which has introduced into that Act a principle of which I entirely disapprove. I do not feel that that Act should be cited as any precedent for resisting this Amendment. I think it is quite wrong that the Minister should be allowed to be a judge in his own case. For that reason, I feel that if there is such a dispute between a local authority and a development corporation, it should be referred to arbitration, as I have suggested in the Amendment. I beg to move.

Amendment moved— Page 12, line 9, at end insert the said proviso.—(Lord Lloyd.)

LORD MACDONALD OF GWAENYSGOR

My Lords, I am not at all surprised that the noble Lord, Lord Lloyd, says he does not think we ought to refer back to the Act of 1946. He knows that that is where the weakness of his case lies. The Act of 1946 enables the Minister of Local Government and Planning, as successor to the Minister of Health, to decide what contribution shall be made by development corporations and local authorities respectively to one another towards expenses they incur in connection with the sewerage and sewage disposal o. new towns. That is the law at the moment, and this Amendment would cut right across that principle. For that reason only, I think that I should be fully justified in refusing the Amendment. I agree that maybe it will be necessary, sooner or later, to look at the law in the 1946 Act, but I am quite sure that this is neither the occasion nor the Bill in which we can consider dealing with that debatable point. This is a Bill dealing solely wit the prevention of pollution. I cannot believe it is the right place for an amendment of principles that have been carefully worked out as part of the general pl in for facilitating the development of the new towns. The Ministry have had no request from any local authority associations that this Amendment should be incorporated in the Bill. I hope that the noble Lord will not think it necessary to press this Amendment.

VISCOUNT SWINTON

My Lords, should like to say a word on the point made that no applications have been received. I understand that this is practically the one case where there is likely to be a conflict between a new town and a county council, and it was not unreasonable that the county should go to their county representative. I hope we shall not dismiss the matter because they did not also write to the Minister of Local Government and Planning. Surely this is not a case of amending some other Act or making a great new principle; it is one of doing what is right and reasonable in this non-contentious Bill. Surely the Minister's argument was not a sound one when he said that we are only following precedent; we are not. If the Minister of Health were the Minister who was going to arbitrate, I should be quite content. The Minister of Local Government and Planning has succeeded to this task because, under the devolution plan and the proliferation of Ministeries that has been going on, some functions have devolved from the Minister of Health to the Minister of Local Government and Planning. But when the 1946 Act was passed, this power of decision was given to the Minister of Health, and he was a completely impartial Minister. Our contention is that the Minister of Local Government and Planning cannot, by the nature of the case, be an impartial Minister, because he himself is the promoter and largely the financier of these new satellite towns. We ought not so readily to accept that he should be the judge in his own cause.

I am going to make a practicable and constructive suggestion which I am sure will satisfy the whole House—namely, that in these cases, which will not arise very often, the Minister should he the most impartial and judicial of all Ministers, the Lord Chancellor. He has given us great help over this Bill. In his judicial decisions he has always given us the most complete satisfaction, even when he has decided against us. If a judicial decision has to be taken—it has got to be a Minister: the Paymaster General does not like arbitration—why cannot the Lord Chancellor solve our difficulty for us by taking on this one little extra job?

LORD SALTOUN

My Lords, I should like to add one point in support of my noble friends. This Bill will be thought to bear very hardly on a number of people. They are going to be sternly checked and stopped from doing something that they have been doing with glorious impunity for seventy-five years. We do not want to exacerbate the feelings of anybody who ought to help in carrying out this Bill. If we leave the situation as it is at present and local authorities feel that they have not received justice, they will never feel that they have been fairly judged. If we insert this proviso, however, and the arbitration goes against them, we may well reckon that there will be no sore feelings and that they w.11 do their best to carry out the judgment given against them. Therefore I suggest it would be to the good of the Government to consider this matter a little further. This is a Bill which is going to be resented in certain quarters, and we do not want to rouse any more resentment than is necessary.

LORD MACDONALD of GWAENYSGOR

My Lords, the noble Viscount, Lord Swinton, seems to suggest that there is a possibility of this Amendment being made more acceptable, and I agree that between now arid Third Read- ing we may have talks. Past talks have brought much understanding between us, but in this case I am very doubtful. There is another factor that I ought to mention here. I am advised that it is possible that a question of privilege could be raised if this Amendment were inserted. Perhaps the noble Lord, Lord Lloyd, might consider withdrawing his Amendment now, and we could have talks to see whether there is anything we can do between now and Third Reading. I do not want to give any undertaking in this regard, but we can have talks.

LORD LLOYD

I am grateful to the noble Lord for that assurance, and accordingly I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT SWINTON

moved, after Clause 9, to insert the following new clause:

Reports of river boards

"The Minister shall lay before each House of Parliament copies of the reports of river boards sent to him in each year under section twelve of the River Boards Act, 1948."

The noble Viscount said: My Lords, your Lordships will see that in putting down this clause in this very simple form I suggest merely that the reports of the river boards should be laid before Parliament. I have excluded the other two suggestions, in regard to reports by the Ministers and one other matter, which I made before and to which the Government took exception. This Amendment now merely gives effect to the undertaking given by the Minister in another place, that he would put down an Amendment in regard to laying before each House of Parliament the reports of the river boards. There is also a consequential Amendment to the Title. It is the last Amendment on the Marshalled List. It amends the Title of the Bill and brings this matter within the scope of the Bill. I beg to move.

Amendment moved— After Clause 9, insert the said new clause.—(Viscount Swinton.)

LORD MACDONALD OF GWAENYSGOR

My Lords, I accept this Amendment, and in doing so I want to express my appreciation to the noble Viscount for the way in which he has now worded it.

On Question, Amendment agreed to.

Clause 10 [Interpretation]

LORD SALTOUN

My Lords, I said on a previous occasion all that I need to say on this Amendment. I beg to move.

Amendment moved— Page 13, line 13, at end, insert: "'tidal waters' includes the waters of any enclosed dock which adjoins tidal waters;".—(Lord Saltoun.)

LORD MACDONALD OF GWAENYSGOR

My Lords, all I can say is that I am very grateful to the noble Lord, Lord Saltoun, for the manner in which he withdrew the Amendment on Committee stage, and I accordingly accept this Amendment.

On Question, Amendment agreed to.

Second Schedule [Transitional and other consequential provisions]:

LORD MACDONALD OF GWAENYSGOR

This is a drafting and consequential Amendment. I beg to move.

Amendment moved— Page 17. line 24. leave out from ("shall") to ("if") in line 26, and insert ("be deemed for the purposes of that section to do so with the consent of the river board").—(Lord Macdonald of Gwaenysgor.)

On Question. Amendment agreed to.

In the Title:

VISCOUNT SWINTON

My Lords, I beg to move the last Amendment.

Amendment moved— In the Title, at end insert ("and to provide for laying before Parliament the annual reports of river boards").—(Viscount Swinton.)

On Question, Amendment agreed to.