§ 1.5 p.m.
§ Report stage resumed.
§ LORD WINDLESHAM
My Lords, I am sorry that, for the reasons I explained in moving the Amendment, we cannot be as co-operative as the noble Lord, Lord Winterbottom, seems to expect. This is a matter of considerable public importance at the present time. We appreciate the tone of his reply, and the consideration he has given to what has been said. We are, of course, interested to know that the Minister of Transport is shortly to meet representatives of the National Farmers' Union to discuss safety on farm crossings. But as my noble friend Lord Nugent of Guildford has pointed out, the Minister himself has a responsibility for the safety both of railway passengers and of the person and property of the owners and occupiers of the adjacent land. The wording of this Amendment represents precisely the position which the noble Lord, Lord Winterbottom, spelt out in his speech. If he looks at Hansard I think he will agree that our wording recognises the situation as he described it. In consequence, we do not feel inclined to withdraw this important Amendment.
§ On Question: Whether the said Amendment (No. 121) shall be agreed to?
§ Their Lordships divided: Contents, 79; Not-Contents, 35.1015
|Aberdeen and Temair, M.||Conesford, L.||Iddesleigh, E.|
|Ailwyn, L.||Cork and Orrery, E.||Kilmany, L.|
|Airedale, L.||Cottesloe, L.||Kinnoull, E.|
|Albemarle, E.||Craigavon, V.||Lansdowne, M.|
|Alport, L.||Cromartie, E.||Loudoun, C.|
|Ampthill, L.||Digby, L.||Lucas of Chilworth, L.|
|Amulree, L.||Drumalbyn, L.||Mancroft, L.|
|Ashbourne, L.||Effingham, E.||Massereene and Ferrard, V.|
|Balerno, L.||Emmet of Amberley. Bs.||Merrivale, L.|
|Balfour of Inchryc, L.||Falkland, V.||Milverton, L.|
|Barnby, L.||Fortescue, E.||Monckton of Brenchley, V.|
|Beaumont of Whitley, L.||Gisborough, L.||Monk Bretton, L.|
|Belstead, L.||Goschen, V. [Teller.]||Mottistone, L.|
|Boston, L.||Grenfell, L.||Mowbray and Stourton, L.|
|Bridgeman, V.||Gridley, L.||Moyne, L.|
|Brooke of Ystradfellte, Bs.||Grimston of Westbury, L.||Napier and Ettrick, L.|
|Burton, L.||Hacking, L.||Nugent of Guildford, L.|
|Byers, L.||Hawke, L.||Nunburnholme, L.|
|Clwyd, L.||Headfort, M.||Poltimore, L.|
|Colgrain, L.||Henley, L.||Rathcavan, L.|
|Rea, L.||Sempill, Ly.||Swinton, E.|
|Redesdale, L.||Sinclair of Cleeve, L.||Teviot, L.|
|Robertson of Oakridge, L.||Somers, L.||Teynham, L.|
|St. Aldwyn, E.||Strange of Knokin, Bs.||Thurlow, L.|
|St. Just, L.||Strathclyde, L.||Windlesham, L.|
|St. Oswald, L.||Stratheden and Campbell, L||Wolverton, L.|
|Sandford, L. [Teller.]|
|Addison, V.||Granville of Eye, L.||Rusholme, L.|
|Arwyn, L.||Henderson, L.||St. Davids, V.|
|Beswick, L.||Heycock, L.||Serota, Bs.|
|Blyton, L.||Hilton of Upton, L.||Shackleton, L.|
|Bowles, L. [Teller.]||Hughes, L.||Sorensen. L|
|Buckinghamshire, E.||Jacques, L.||Strabolgi, L|
|Burden, L.||Leatherland, L.||Summerskill, Bs.|
|Champion, L.||Lindgren, L.||Taylor of Mansfield, L.|
|Chorley. L.||McLeavy, L.||Williamson, L.|
|Crook, L.||Phillips, Bs. [Teller.]||Winterbottom, L.|
|Faringdon. L.||Popplewell, L.||Wootton of Abinger, Bs.|
|Gardiner, L. (L. Chancellor.)||Ritchie-Calder, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ [The Sitting was suspended at 1.16 p.m., and resumed at 1.50 p.m.]
§ Clause 123 [Amendment of provisions as to regulation of traffic]:
§ LORD WINTERBOTTOM moved Amendment No. 122:
Page 159, leave out paragraphs (c) and (d) and insert—
("(c) the words from 'but' onwards (which provide that a restriction on the loading or unloading of goods shall not be treated as preventing access) shall cease to have effect.")
§ The noble Lord said: My Lords, I beg to move Amendment No. 122 standing in the name of my noble friend Lord Stonham, and if the House is agreeable I should like to discuss Amendments Nos. 129A and 143D at the same time, because they are interlinked. It is convenient to take these three Amendments together as the second and third are repeals consequential upon the first.
§ During the debate on Part IX of the Transport Bill in Committee my noble friend Lord Bowles promised that the Government would look again at the problem of orders under Section 1 of the Road Traffic Regulation Act 1967 which restrict the loading and unloading of vehicles. The Amendment now proposed is the outcome of these deliberations. It will be recalled that at present orders which prevent "reasonable access" to premises cannot be made unless they fall within the limited categories listed in Section 1(6). If they do fall within Section 1016 1(6) the orders cannot come into effect without the Minister's confirmation. These categories of order will be widened by the Transport Bill, as now drafted, and the Minister's consent rather than his confirmation will be required; but otherwise the rule remains basically the same, though the rule about restricting reasonable access, which is rather vague, is replaced by a rule about restricting access for more than 8 hours in any period of 24 hours, whichever is more definite.
§ There is, however, one exception to this rule which I should like to mention; that is orders which restrict the loading and unloading of goods from vehicles and contain no other restriction. Such orders are at present specifically exempted from the restrictions imposed in Section 1(5) and Section 1(6) of the Road Traffic Regulation Act 1967. Up to now not many orders of this type have been made, but with the increase in traffic the House thought that many more of these orders would come into force and safeguards for the delivery of goods would be required. In view of this and of the concern shown by noble Lords that the interest of frontagers should be adequately safeguarded, the Minister has decided that orders under Section 1 which only restrict loading and unloading should no longer enjoy special exemption, but should be treated exactly as any other orders restricting access. In other words, if they are to prevent access for more than 8 hours out of any 24, they will be able to be made only for the limited purposes outlined in Section 1(6), and they will need prior Ministerial consent.1017
§ This whole question of access has been a very vexed and complicated one. The problem in this instance is to strike a balance between the requirement for smooth, safe traffic flow and the interest of the frontagers. This Amendment provides an important safeguard for those whose business depends on the delivery of goods to and from premises. It also simplifies the law with regard to orders restricting access, and helps to clarify a very complex subject. I hope that it will commend itself to all your Lordships. I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, I thank the noble Lord, Lord Winterbottom, for moving this Amendment, which substantially meets the point that was raised in Committee—I suspect the point raised by my noble friend Lord Merrivale and supported by myself.
§ Clause 124 [Amendment of provisions as to parking places]:
Page 164, line 30, leave out ("(e)") and insert ("(d)(ii)").—(Lord Nugent of Guildford.)
§ Clause 125 [Powers as to parking, etc., of public service vehicles]:
§ LORD WINTERBOTTOM
My Lords, Amendment No. 124 is a purely drafting Amendment to repair an accidental omission. I hope your Lordships will excuse the omission and agree to the Amendment. I beg to move.
Page 167, line 1, after ("33") insert ("of the principal Act").—(Lord Winterbottom.)
§ Clause 128 [Enforcement—fixed penalties and traffic wardens]:
LORD WINTERBOTTOM moved Amendments Nos. 125, 126 and 127.
Page 174, line 45, leave out ("which") and insert ("so far as it").
Page 175, line 1, leave out ("for keeping order and").
Page 175, line 5, leave out ("which") and insert ("so far as it").
§ The noble Lord said: My Lords, if the House agrees, I should like to move Amendments Nos. 125, 126 and 127 together. The effect of these Amendments is to make it clear beyond doubt that the Commissioners of Police for the City of London and the Metropolis can issue directions to traffic wardens under the Acts of 1839 only in regard to preventing obstruction of the streets. The object of these Amendments is to remove any doubt that might have been created by the previous form of words that Commissioners' directions might be made which required traffic wardens to maintain order in the streets.
§ The Amendment follows a suggestion by the noble Lord, Lord Drumalbyn, during Committee stage that the purely descriptive words of Sections 52 and 22 of the Metropolitan and City of London Police Acts 1839 respectively might be re-phrased so as to avoid using the words "for keeping order". Descriptive words ought, however, to be complete, and it was preferred therefore to adopt words of limitation. The intention always, has been that traffic wardens should be employed solely in connection with traffic matters. Under the 1839 Acts directions for dealing with traffic arrangements made in connection with events such as the opening of Parliament or the Lord Mayor's Procession will be made to traffic wardens as well as police constables, and this will enable a better service to be given to people watching the ceremonies and to drivers using diversionary routes or needing assistance to reach their destinations. That is the reason for these Amendments. I beg to move.
§ LORD WINTERBOTTOM
My Lords, with the permission of the House I should like to move Amendments Nos. 128 and 129 together. The effect of these two Amendments is to carry through into the version of the Road Traffic Regulation Act 1967 which is to be reprinted under the provisions of this clause sc as to include the amendments made to the Act in this Bill a small amendment made to the Act by the Hovercraft Act 1968. In the same way, provision is already made in the clause for amendments to the Road Traffic Regulation Act 1967 1019 made in the Police (Scotland) Act 1967, also to be taken into account in the reprinting. This will ensure that the reprinted version of the Road Traffic Regulation Act is a fully consolidated version and includes all amendments made to the Act in subsequent legislation, not only those which occur in Part IX of the Transport Bill. The amendment made to the Road Traffic Regulation Act by the Hovercraft Act is to be found in paragraph 4 of the Schedule, and simply substitutes a new definition of a hovercraft. My Lords, I beg to move.
Page 248, line 44, leave out from ("road") to ("or") in line 46.—(Lord Winterbottom.)
Page 257, line 10, leave out ("or (e)") and insert ("(i) or (ii)").—(Lord Nugent of Guildford.)
§ Clause 103 [Classification of the Board's waterways]:
§ 2.0 p.m.
§ VISCOUNT ST. DAVIDS moved Amendment No. 81:
Page 136, line 16, leave out ("and") and insert—
("(c) the waterways for the time being specified in Part III of the Schedule, being waterways (in this Part of this Act referred to as 'the interim waterways') to be the subject matter of future designation; and").
§ The noble Viscount said: My Lords, this Amendment is an effort to do something better than we tried to do on the Committee stage. On the Committee stage, your Lordships will remember, we 1020 tried to do something about the waterways which did not fall into the cruising range, some of which were still navigable and which have not been legally abandoned. In the past, whenever a waterway has been legally abandoned it has been done either by a Private Act of Parliament or by an order of the Minister of Transport. In either case, there has been some form of inquiry into the matter. But in this case, as the Bill now stands, we have a set of waterways which are being abandoned without any inquiry at all being made into their possibilities. It seems reasonable that we should have some method of holding a public inquiry into what is to be done with these waterways.
§ Our first attempt on the Committee stage was to move these waterways into the list of cruising waterways and thereby let the Minister go ahead making an order removing them one by one from this list of cruising waterways and holding an inquiry into each one in turn as the Bill allows. That was all very well, but it has certain disadvantages, as my noble and learned friend so rightly said, in that to some extent it interfered with the credibility of the system of cruising waterways to put into it several of these waterways which were not in fact navigable. We quite see the force of that. Nevertheless, it remains true that it would be a good thing if there was an inquiry into each and every single one of these waterways.
§ My noble and learned friend has said, quite rightly, that it would cost tens of thousands of pounds to hold all these inquiries. I am not much up on the cost of holding inquiries. I thought myself that, on the face of it, that was a slight under-estimation. I thought it would cost more. Nevertheless, it would be very well worth doing. It would be worth doing for two reasons. First of all, if these waterways are reduced to simple water channels any possibility of ever making them profitable will cease. There will be a permanent deficit which will run for the rest of the lifetime of those waterways as water channels, and that sum will be round the taxpayers' necks, whatever happens. We know that, given a number of years—how many years we are not sure, but we can bear in mind the present rate of expansion of boat ownership and look over our shoulders 1021 at how such things go in the United States—the cruising fraternity will slowly build up the revenue on the navigable waterways to a point where sooner or later we shall not be far from breaking even. But if you take a waterway out of the navigable system you make it a permanent loser, and a permanent loser in time loses very much more than tens of thousands of pounds.
§ There is another point which makes it an even cheaper and even more reasonable thing to hold a public inquiry into each of these waterways. It is that there is really no middle way that anybody has yet found between keeping a waterway as a navigation and totally abolishing it and filling it in. One says, as my noble and learned friend said, "Why not put weirs in the locks. It would be a much cheaper thing to do. Just let the water tumble over the weirs, flow along the canal and you need not navigate it at all; you need not dredge it or do anything of the sort". Yes, that is cheaper for a year or two or for a short period, but very soon one is faced with the problem that the waterway silts up. It silts up gradually, partly by natural forces and partly because everybody proceeds to throw old motor cars, perambulators and rubbish of every kind, pleasant and unpleasant, into it. Slowly the waterway becomes a stinking ditch. That is not a state that any public authority will put up with for long.
§ As to the Ashton Canal, where this is very much the case, as your Lordships may have seen in the papers in the last few days, volunteers have been taking out hundreds of tons of horrible muddy wreckage from that canal. The reason why people concerned with the Ashton Canal are so keen on Amendments to this Bill is the terrible state that the waterway is in. They want something done about it. They want the waterway either put into their hands, or put back as a navigation, because otherwise they will find themselves with a stinking ditch.
§ All this sort of thing needs inquiry. There must be a public inquiry into each case to find out what the situation is. If we do not have a public inquiry and the waterway is just quietly abandoned it will turn into a stinking ditch, and if it is turned into a stinking ditch it must either be expensively got back to navigation or be even more expensively filled in. 1022 The Ashton people are excited because next door to them the Rochdale Canal, which was turned into a stinking ditch, is now, according to the engineers, going to cost more than £100,000 a mile to fill in and make into a reasonable state of dry land. The Ashton Canal authorities, with a canal seven miles long, do not like the idea of a cost of £700,000, of which one quarter would fall on their rates and—this is a point which the Government might consider—three-quarters on the Treasury. Three-quarters of £700,000 would be a great deal more than the odd sums of thousands of pounds which it would cost to hold a public inquiry. That is why we want these public inquiries.
§ These public inquiries will save a great deal of money if we succeed in keeping a mile or two of waterways reasonably navigable and perhaps obviate filling them in; or perhaps we may hive them off on some other people, not the Waterways Board, and save money in that way. All sorts of things can be done, but the only way to find out is by holding a public inquiry. Often the public are apathetic about their local waterway, and it is only when the publicity which is associated with a public inquiry is started that offers of cash and support come forward, including offers to take over the waterway, which enable the waterway to be cheaply taken out of the hands of the Waterways Board. We want Part III so that the waterways which are in doubt can each be separately considered by an inquiry. That is the purpose of this Amendment. I beg to move.
§ THE EARL OF KINNOULL
My Lords, I should like briefly to support the noble Viscount, Lord St. Davids. During the Committee stage the noble and learned Lord the Lord Chancellor gave his view of adding to Schedule 12, and I think he gave three reasons why he felt it should not be accepted by the Government. The first was a financial reason: that the Government had decided to allow an annual subsidy of some £400,000 a year, and that this figure cannot be increased. If we examine this we see that the figure in the White Paper produced originally was £350,000. "The facts of the waterways" under Appendix 7 at page 119 listed all navigable waterways that existed and estimated that these would cost £340,000 to maintain. In fact this list includes the interim waterways 1023 which we are now suggesting should be included in Schedule 12. Therefore I do not think the argument that the Government are giving £400,000 means that the interim waterways can cost more really applies, because it has already been said that this figure will cover them.
The second reason given by the noble and learned Lord was that it would mean abandoning the selection which the Government had made. I do not think this is so. The Amendment would simply put into the Bill a Government undertaking which has already been given, that the Waterways Board would do nothing to prejudice restoration. We are not talking here of restoring canals. I suggest that it strengthens the position of the White Paper where it says in paragraph 9:There are a number of waterways not included in either of these groups which will need individual study and consideration before their future can be settled.In other words, there are still certain facts which have not been established. I suggest that this is not an artificial procedure but one which would preserve a national asset which, if abandoned too hastily, might be to the detriment of future generations.
The noble and learned Lord also gave as a reason against this addition—I am not certain whether he thought it was a major reason—that the question of adding to the Schedule was in fact a "last ditch" attempt by enthusiasts. During the Committee stage he said this at column 790:The Inland Waterways Association welcomed the White Paper and accepted the Minister's statement, and it is surprising that they should, at this late stage, wish to see Amendments made to the Bill which are entirely contrary to the White Paper they accepted so gladly." [OFFICIAL REPORT, 22/7/68, col. 790.]I am not a member of the Association, but I am advised that they were delighted with the general principles of the White Paper. They never accepted the question of the interim waterways, and the Amendments which were put down and heard for the first time during the Committee stage in this House were in fact the first occasion on which they could have been discussed, because Schedule 12 never came before another place. As I see it, the main object of these Amendments is not to restore the waterways but to keep 1024 them in condition until proper attention can be given to them. In other words, it is a safety catch.
LORD ST. JUST
My Lords, may I ask the noble Viscount, Lord St. Davids, to clear up one point? He spoke about making a waterway navigable. Could ha give some idea what this entails and roughly what the cost would be?
VISCOUNT ST. DAVIDS
My Lords, that depends very much on the state of the waterway. The Inland Waterways Association is always being bombarded by crackpot ideas for making ancient waterways navigable, many of them being in such a state that to do so would cost millions of pounds and it would be absolute nonsense to attempt it. Indeed in some cases it would be totally impossible.
§ LORD BESWICK
My Lords, we have agreed that while the mover of an Amendment has the right to reply he has no right to intervene in a debate more than once.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I suggest that with this Amendment it would be convenient to discuss also Amendments Nos. 83, 84, 85, 89, 92 and 115C because they all relate to the proposal made by my noble friend Lord St. Davids and the noble Earl, Lord Kinnoull, to create a new category of waterway called "Interim waterways" which would be listed in a new Part (Part III) of Schedule 12. While the waterways in question remained in this category the Waterways Board would have an obligation to maintain them in the condition in which they were during the nine months ending December 8, 1967, and in addition the Board would be required to permit public navigational use of these waterways to continue, subject, however, to restrictions which the Board could impose with the approval of the Minister. The waterways which it is proposed to include in this new category constitute a large part of the remainder waterways as at present 1025 envisaged under Part VII of the Bill as it now stands.
The Government can fairly claim to have been very reasonable in considering Amendments to this Part of the Bill. We have certainly been very grateful for many of the Amendments proposed in this House, and have accepted many of the suggestions. But this group of Amendments is totally unacceptable. They would undermine completely the basic policy which is embodied in Part VII and Schedule 12 of the Bill. A fundamental principle of this policy—perhaps the fundamental principle—is that certain of the waterways in the undertaking of the Waterways Board should be selected for preservation and that the limited money available should be concentrated, so far as possible, on the maintenance of these waterways, and that, as regards the remainder, the Board should be released from old burdens and obligations so that they should be free to adopt the most economical method of dealing with those waterways. What is now proposed would, in practice, mean throwing overboard this selection. The selection which has been made and which is embodied in Parts I and II of Schedule 12 of the Bill (which reproduces the lists in the White Paper, Inland Waterways: Recreation and Amenity published in September 1967) is the result of a most thorough examination of the Board's system undertaken by the Board, in consultation with all affected interests, in pursuance of the obligation placed upon the Board by Section 10 of the Transport Act 1962. The Government believe that this selection is the correct one and that there is no justification for throwing it overboard and bringing into a possibly interminable debate the future of some of the waterways which have not been selected for preservation by the Board.
That is the general objection, but it is worth looking a little more closely at the effect of these Amendments. They would inevitably have the effect of imposing on the Waterways Board maintenance obligations in relation to certain of the remainder waterways which are not now in a navigable condition. Such obligations were not allowed for when the new financial arrangements for the Board were agreed. These additional obligations could be met only by the provision of further money from the Exchequer, 1026 by skimping the maintenance of commercial and cruising waterways or by removing from Part I or II of Schedule 12 some of the waterways now listed there.
The House will remember that the alternatives put before the Government by the Board were, either, in the case of canals which could not be profitable, to treat them as economically as possible, though even there there would have been a cost of over half a million pounds a year, or, if the Government chose to spend what was then estimated [...] be £350,000 in addition but is now obviously more—something, I suppose, between that and half a million—then not only would it be possible to have three or four hundred miles of commercial waterways but over one thousand miles of cruising waterways, leaving only a small number, most of which have been statutorily closed to navigation for years, to be dealt with in the most economical manner, the part we call the remainder waterways.
The noble Earl, Lord Kinnoull, referred to the fact that at Committee stage I pointed out that when the Government announced that they were prepared to provide the additional amount, about £1 million a year altogether the Waterways Association were very pleased. That is so. I have here a published article of theirs headed "A major success" in which they say this. The White Paper referred to was the paper which set out these three categories of commercial waterways, cruising waterways and the remainder. The article says:The White Paper was considered at a Special Council meeting held on 12th September. Without doubt I.W.A. has achieved a major success. For the very first time the Minister of Transport, the British Waterways Board and the Ministry civil servants have largely accepted our views. We are far from being complacent. Everything is not perfect. There is endless work for I.W.A. to do. But we should be unrealistic and grudging if we did not appreciate this very considerable step forward. B.W.B. have produced a glossy publication.… We congratulate the achievement of Mrs. Castle and her advisers in very difficult economic times in persuading the Government to produce a new charter for our waterways. It is obvious that Barbara Castle has become a waterways enthusiast. She is the first Minister of Transport to see their possibilities for the ordinary members of the British public.1027 They go on to say the same about the officials of the Ministry.
I know that our economic position is fortunately rather better to-day, but it is literally only a matter of months since every Department had to reconsider its estimates—housing, university grants, prescription charges, civil defence. In every Department there had to be some curtailment. One direction in which a curtailment might well have occurred is that the Government might have said, "In these very difficult conditions we really cannot go forward with this second half million pounds a year for the Inland Waterways". But this had no cut at all. This very publication of the Association sets out in detail, exactly as in the Government White Paper, which were to be the cruising waterways and the commercial waterways and the remainder. They did not say, "Oh no, this category is all wrong. We cannot possibly allow that everything will not be made navigational, in any category, without some public inquiry". They accepted this; and it is at the Report stage of the Bill that they now come forward with a proposal which completely undermines the whole of the Bill as it has been drafted.
They also incorporate the proposal that public navigational use of these remainder waterways shall continue as a right, subject to restrictions which the Board could impose with the approval of the Minister. This would mean either that the Minister had to interfere in matters which are really matters for the Board, or that there could be navigation in circumstances attended by danger.
The Board have given the Minister an assurance that for a period of three years from the coming into operation of Part VII of the Transport Bill they will not, without the Minister's consent, take any action in relation to these "interim" waterways, and also in relation to the Ashton and Peak Forest Canals, which would have the effect of making the restoration of these waterways permanently impossible. This undertaking, which I now repeat in this House, should allow ample time for local authorities in the areas concerned to decide whether they wish to provide financial assistance for restoring these waterways in exercise of their new powers under Clause 111. It should also allow local 1028 authorities and other interested bodies or persons to decide whether they would wish to put forward proposals for taking over some of these waterways under Clause 107. In addition there will be full opportunity for all of these waterways to be considered by the Inland Waterways Amenity Advisory Council established under Clause 108. This again is something quite new in the field of inland waterways.
I understand that all the waterways enthusiasts are very well satisfied with the choice of those who are to sit on the Inland Waterways Amenity Advisory Council, and the Minister certainly is going to attach great weight to the advice which he receives from them. In addition there will be full opportunity for all these waterways to be considered by the Council, and in this way it will be seen that no precipitate action will be taken in connection with these waterways. There will be ample opportunity for further consideration to be given to them in the way I have indicated. But it is essential to the basic policy to which I have referred that at the end of the three-year period the Board should be free to deal with them in the most economical way possible, in implementation of the obligation placed upon the Board by subsection (2) of Clause 105. It is only in this way that the new deal for the waterways system as a whole will be effective and the Board placed in a position where they will have a chance of meeting the financial target set before them.
I would emphasise, however, that the implementation by the Board of their obligation under subsection (2) of Clause 105 will not result in any wholesale destruction of these waterways. Schemes for water channelling and culverting may be put in hand in appropriate cases and there may be situations where it will be in the interest of the Board and of all concerned for a particular length of waterway to be filled in and developed for other purposes. Normally, however, what will happen is that there will be a minimal maintenance of these waterways to public health standards only, and that so long as they remain navigable persons will be permitted to navigate them as at present. It is for these reasons that I am unable to accept this Amendment, which really is destructive of the whole scheme of the Bill as it has been 1029 drafted, and I hope very much that with that explanation my noble friend will be willing to withdraw his Amendment.
§ 2.29 p.m.
VISCOUNT ST. DAVIDS
My Lords, my noble friend, while being very reassuring in some ways, seems determined not to realise that when he says most of these waterways will be reduced to the minimum upkeep necessary for public health standards he is making the hair of every local authority along the route of these waterways stand right on end. So far there has been no waterway anybody has ever heard of which has been kept up to minimum health standards, because nobody knows what it means. The minute a waterway is not navigable, anything that gets chucked in it stays in it. Silt collects by natural process.
I have gone into all this before. I do not want to make the speech twice or three times, but this is a fact which it seems that the authorities have not yet got into their heads: that the reason the fight on the Ashton Canal is so bitter, and the reason the fight on the Erewash Canal is so bitter, is that in the Ashton case the Rochdale Canal is next door to it, and in the Erewash case the Derby Canal is next door to it. In the case of the Ashton Canal, the Rochdale Canal has been rotting and has been kept to a minimum state in public health over the last twelve years. In the case of the Erewash, the Derby Canal has more and more been falling into a horrible state year after year, and the ratepayers of Derby and the people round Derby now know what is meant by "minimal health standards." It is because they know this that they are so bitter about the Ashton Canal, on the one side, and the Erewash Canal, on the other.
The fact that this has happened over the lengths of waterway which go through other parts of their towns is the reason why your Lordships are having so much trouble in this House in particular over the Ashton Canal. In regard to the Erewash Canal, where the financial deficit is small, my latest information is that the locals have actually found the money to cover the deficit; so that the Erewash will be making a profit, or at least breaking level, in which case why it should 1030 be in Schedule 12 I cannot understand. Maybe, on this basis, the Government will put in a quick Amendment at a later stage to put the Erewash into the cruising waterways.
This, my Lords, is why we want some public inquiries into these waterways. We are not so concerned with navigation. So far as I am concerned, many minor sections of waterways are not, navigationally, so important, but there is going to be an enormous fight on the part of the local inhabitants when they discover that instead of the authorities keeping their waterways in a reasonable state, because they have to, for navigation, they now leave them in the state that they do and leave the public health matter to be sorted out by the local authority, as it has to be in the end, at a cost of hundreds of thousands of pounds. The cost runs to £100,000 per mile for miles of canal, and a large part of this sum falls on the rates. How on earth the Treasury can marry this up with the national economy when they have to pay three-quarters of the cost of filling in, I cannot imagine. It seems to me that they have not thought it out.
Nevertheless, the Government are determined to have this mess on their own head. If they want to have this mess on their own head, I suppose they must. I do not think we have received a great deal of support in this House for doing anything else. Why, I do not know, seeing how many of the Members of this House sit on local authorities. But there it is. If the Government are insistent on putting themselves, figuratively, up to the neck in mud, then let them do so. If their idea is that these waterways should revert to marsh, so be it. I will withdraw this Amendment and leave the Government to sort themselves out of their own mess.
§ 2.35 p.m.
§ LORD CHORLEY
My Lords, before the noble Lord withdraws his Amendment, I should like to say a few words rather in continuation of the observations that I made at an earlier stage of this Bill. This afternoon this matter has been argued largely from the point of view of public health and the nuisance which a derelict canal can become; and what might be called the navigational aspect has been rather thrown overboard by my noble friend Lord St. Davids. 1031 But this is an aspect of the matter which is of considerable importance. As I attempted to emphasise on the previous stage, there are tens of thousands of people who have begun to realise over the last ten or fifteen years that the canal system of this country provides recreational possibilities of tremendous value. I think this is generally accepted.
I do not want to spend a great deal of time rubbing it in, and in crossing the t's and dotting the i's. But it appears to me that this Amendment would enable us to save time. The great danger is that these canals, which are covered by this Amendment, will go completely out of use from the navigational point of view if they cannot be kept up, at any rate to some extent, during the next years. I understand that the proposal is that there shall be a short period of two or three years during which the authority shall have a locus penitentiae, a time to look round, to consider the matter; and that then, if money is forthcoming, or other reasons are found which are powerful enough, they should have the opportunity of reconsidering the situation and rescuing these waterways which are either derelict or on the point of becoming so, so that they can be restored to circulation for the purposes of the recreation of young people. And, of course, not only young people are concerned: many older people have more and more been using some of these canals over the last years for recreational purposes.
The tremendous success of the National Trust in connection with the Stratford Canal, to which I have drawn attention more than once in your Lordships' House, is a good example of this. This has been an achievement of great value, carried through in the face of considerable obstacles. One of the most encouraging aspects of it has been the way that people have been prepared to put in money, and have put in their own physical effort. As a result, they have succeeded in restoring a section of canal which was, over most of its length, completely derelict and quite incapable of navigational use.
It seems to me most important that we should not lose the possibility of saving a number of these other canals. There are not a great number of them. They appear in a later Amendment, and the 1032 number does not run to more than two figures. The virtue of this Amendment is that it would enable each of these to be looked at, so to speak, independently. It provides for the possibility of a piece of recreational, navigational water to be assessed at an inquiry held by an experienced inspector, with the costs and other problems associated with rehabilitation assessed and judged. The virtue of this Amendment seems to me to enable this period of grace to be secured by Statute. This is one way of doing it; these may be others.
The really disastrous aspect of the situation is that if we do not do something to give ourselves the time we shall be completely defeated on this front. The noble and learned Lord continually throughout the Committee stage said, "Well, I have tremendous sympathy with this", and "I am bursting with sympathy." I also remember his saying at one stage, "but I am not bursting with money". We all realise that the financial situation at present is one of great difficulty and stringency, and I think that, on the whole, the Government have been reasonably generous with the £300,000-odd and the other concessions which they have made. But surely this period of extreme financial stringency is not going on indefinitely. I hope to goodness not! In a few years' time the constructive economic policy of the Government will show fruits. It is already showing fruits. At that time more money should be available and if we let these canals disappear we shall all be cursing ourselves for not having had the sense to keep them going until more money was available.
One of the inspiring things about the effort of the National Trust at Stratford was the way people contributed quite substantial sums of money. I would not be at all surprised if, with the assistance of one or other of the great charitable trusts, several of the more important of these canal circuits could in fact be rescued and continued as available for recreational purposes of this kind. The cost of filling in these canals has been very properly emphasised, and that cost will be a very great burden on the local authorities who will be faced with the job of carrying out the work.
§ LORD CHORLEY
And on the Treasury, which will, of course, have to contribute in the ordinary statutory way a proportion of the cost which the local authority is put to. Obviously, a great charitable trust is not going to concern itself with filling in a length of canal, but a great charitable trust might very well concern itself with keeping a length of canal like the Cheshire circuit viable. This has been referred to more than once, and there are several others in the country. Why not institute a competition between great charitable trusts allocating the Cheshire circuit to one and the Kennet and Avon to another? I think it should be possible to do a great deal more on these lines than has in fact been done in the past. But all this needs time, and it is really for time that we are asking. It seems to me that one method of getting time is the method proposed in this Amendment, and that is why I very strongly support it and hope that your Lordships will accept it.
§ LORD SOMERS
My Lords, may I say one word before we finish this discussion. To any noble Lord who feels that possibly the recreational value of the canals is a very slight one and not one to be taken seriously, I should like to point out that every person on the canals means one less car on the roads. I think that is the point worth considering.
VISCOUNT ST. DAVIDS
My Lords, in withdrawing my Amendment I should like to thank noble Lords who have spoken. May I say to my noble friend Lord Chorley that some 600 youngsters and other people turned up on the Ashton the other day to clear the wreckage from it in the hope that some day something would be done there. It is a question of time. If we can keep these waterways open long enough perhaps we will get this help and save the Government money.
§ Amendment, by leave, withdrawn.
§ 2.44 p.m.
THE LORD CHANCELLOR moved Amendment No. 82:
Page 136, line 20, leave out ("further defining that waterway") and insert ("giving greater precision to that description").
§ The noble and learned Lord said: While the waterways part of the Bill was being debated in Committee, some noble 1034 Lords expressed concern about the wording of subsection (2) of Clause 103. They feared that "further defining" a commercial or cruising waterway "by reference to a map" might in future years be so interpreted as to result in reductions or changes in the network of waterways listed in Schedule 12 of the Bill. I gave an assurance in reply that the Government did not intend the subsection to be used in this way, and explained that the whole purpose of the map procedure was to define the lengths described in the Schedule more precisely. But in view of the noble Lord's concern the Government have drafted this Amendment which makes it crystal clear that the only purpose of an order under this subsection will be to give greater precision, should the need arise, to the description of a waterway contained in Schedule 12. I beg to move.
§ THE EARL OF KINNOULL
My Lords, perhaps I may take this opportunity to thank the Government for meeting the point that the noble Viscount, Lord St. Davids, and I raised on Committee
§ THE EARL OF KINNOULL
My Lords, Amendment No. 86 is a drafting Amendment which I hope demonstrates that the noble Viscount, Lord St. Davids, and I scrutinise the Bill and do not miss one single word.
Page 136, line 32, leave out ("his") and insert ("this").—(The Earl of Kinnoull.)
§ THE LORD CHANCELLOR
My Lords, this Amendment corrects a printing error, and we are very grateful to the noble Earl, Lord Kinnoull, for having spotted it.
§ THE EARL OF KINNOULL moved Amendment No. 87:
Page 136, line 33, at end insert—
("() Any person who suffers loss by reason of an order under this section shall be entitled to be paid compensation by the Board to be determined in the manner provided by Section 104(9) of this Act.")
§ The noble Earl said: My Lords, I beg to move the Amendment standing in the name of the noble Viscount, Lord St. Davids, and myself. A similar Amendment was moved during the Committee 1035 stage, and we make no apology for raising the matter again. The purpose is simply to restore the right to compensation for the loss of a public right, and to bring Clause 103 into line with Clause 104 (9), which restores the compensation of private rights under the Bill. I believe that there have been very few cases since the war which would involve public rights. I think there are something like five, and all the cases were for action for special damage.
During the Committee stage the noble and learned Lord the Lord Chancellor said, in essence, that we cannot afford to restore this right that was being taken out by the Bill. The noble and learned Lord then said:
'Where is the money to come from?' It is easy for Members of Parliament to pass Bills putting financial liabilities on people and saying that they are to compensate other people, but somebody has to find the money."—[OFFICIAL REPORT, 22/7/68, col. 708.]
My Lords, it is not a question of passing a Bill and putting a financial liability on to people; the liability is already there; we are simply trying to restore it. The only objective of this Amendment is, as I have said, to continue a right which had existed unchallenged until the noble and learned Lord the Lord Chancellor challenged its propriety on July 22. I beg to move.
VISCOUNT ST. DAVIDS
My Lords, this is a matter which one would think was very clear. Every time any public waterway on which a public right of navigation existed was closed those who suffered loss of their public right had the right to go for compensation; and if they were entitled to it they got it. Incidentally, that shows that there was a public right of navigation, because a man cannot be compensated for something he has not got—but of that more slightly later.
Nevertheless, this is the first case of which I am aware of nationalisation without compensation. I have many times been in favour of the nationalisation of certain things, and have gone on record publicly as saying so. I do not think that I have ever gone on record as being in favour of nationalisation without compensation, and that is what one has here. The Waterways Board in these cases intend to improve their property. This is not being done with the intention of damaging their property, but with the 1036 intention of improving the Board's financial circumstances by altering the waterway to suit themselves, and by so doing they abolish the public rights of certain people upon that waterway. And for the first time in British history this is to be done with no right to compensation whatever. That is the plain fact of the matter.
I do not think that I have ever before stood up in this House and seen a number of your Lordships unenthusiastic about defending the right of people to be compensated when their property has been nationalised. I should have thought that your Lordships would "kick up" a considerable "stink" about this matter, which is the first case on record of nationalisation without compensation. In the past, every time a waterway has been closed compensation has always been given for the loss of these rights. One would think that this House would be keen to see that such a state of affairs should continue, and certainly to ensure that people should not have their rights taken away from them entirely without compensation. As I say, I believe this to be the first time ever that it has happened. If your Lordships want this to occur then it is up to your Lordships, but I feel that a few other Members of your Lordships' House will wish to say something about this matter; otherwise on the face of it the attitude of your Lordships would appear to be somewhat peculiar.
§ THE LORD CHANCELLOR
My Lords, this Amendment would place on the British Waterways Board an obligation, which is certainly not there now, to compensate anyone who suffers loss by reason of an order under Clause 103 for reclassifying a waterway. This would place an indefinite financial obligation upon the Board. But if the new deal for waterways is to be effective, the Board's financial obligations must be limited—and limited in a definite way. How the compensation proposed to be paid under this Amendment would be calculated is not stated. Suppose, for example, a local authority claims that its area has suffered a loss because a commercial or cruising waterway has been demoted to the remainder category. How would that loss be quantified? The practical effect of an indefinite obligation of this nature could be to render every recategorisation 1037 order a costly operation, and so impose on the Board very severe financial burdens.
The Government are, of course, aware that the true purpose of the Amendment is to protect the man who invests money in some waterway facility—for instance, a marina or a boatyard. But persons who undertake a waterway business undertake a business in which there is an element of risk, as there is in any business enterprise. The siting of an enterprise connected with, for example, freight-carrying or pleasure-cruising on the Board's waterways and the assessment of demand for the services being offered are matters of commercial judgment for the investors. There is no justification for compensating the owners of a business because it is no longer sensible in the long term for the Board to provide the track, as it were, on which they can operate. Indeed, a change of category order is most likely to be proposed where there has been a diminution of traffic on a waterway; it is, therefore, likely to be consequent upon loss of business to a commercial operator rather than the cause of it. No provision exists for compensation in respect of loss resulting from a railway closure unless there is some contract between the Railways Board and the individual using the service which places upon the Board an obligation to continue the service. There seems no reason why the same situation should not apply in relation to the Board's waterways.
The Government believe that the resources of the Board (including the Exchequer grant made to them) would be best used in maintaining the scheduled waterways to the appropriate standards. This result is more likely to be achieved if Clause 103 stands as it now is than if the Board are burdened with compensation obligations of the sort now proposed.
As I understand it, in the case of Private Acts of Parliament where undertakers have gone to Parliament to be allowed to rid themselves of their obligations in relation to a canal the practice has always been to compensate for private rights but not for public rights. We had a long debate about this matter at the Committee stage of the Bill. I pointed out how often this applies in life. A garage may rely entirely on the fact that it is situated on a through way through a town; then a by-pass is built and 1038 everybody uses the garage on the by-pass. These are risks of commercial judgment and they can be insured against.
I venture to repeat what I said in Committee that there is no more reason for granting compensation in this instance where there is no private right than in in the case of an unfortunate garage immediately outside a railway station which serves entirely the commuters who leave their cars at the station and go up by train, when the railway station is closed for ever. It is hard lines, but it is not the fact that the railway has to compensate the garage; and I do not think this has ever been suggested. For this reason I hope that my noble friend will not press his Amendment.
§ THE EARL OF KINNOULL
My Lords, the issue is very simple—whether or not this public right exists; and what we are concentrating on is whether or not there exists a right to compensation. From what the noble and learned Lord Chancellor has said it would seem that such a right does not exist. The noble Viscount, Lord St. Davids, and myself are advised that it does exist. We have been told that there have been five cases since the war. One was the John Gould case, about which the noble and learned Lord already knows. I am glad that the noble and learned Lord took the point about the financial investment in canals, which is a very important matter to consider. I suggest to the noble Viscount, Lord St. Davids, that at this stage we should withdraw this Amendment in order to look at the matter again. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 104 [Maintenance of the Board's waterways]:
§ 2.58 p.m.
§ VISCOUNT ST. DAVIDS moved Amendment No. 88:
Page 136, line 34, at beginning insert—
("Subject to the provisions of this section, all persons whatsoever shall have the right with boats, barges and other vessels of any kind suitable for use thereon to use and navigate the commercial waterways and the cruising waterways at all times and for all reasonable purposes without any unnecessary hindrance, interruption or delay, paying to the Board the licence fees, tolls and other charges and observing the terms and conditions applicable thereto and".)
§ The noble Viscount said: My Lords, this Amendment deals with the simple matter of confirming and retaining the right of the general public to navigate our waterways as highways, in exactly the same way as they have a right to use the roads. One cannot confirm and keep a right which does not exist, and I intend to show your Lordships that a right does exist.
§ The noble and learned Lord has been saying that it does not exist, in spite of the fact that this Bill which he has been advocating says that it does. The Bill shows that it exists by the simple expedient of putting in a whole number of clauses to abolish it. One does not abolish something that is not there; nor does one compensate people for something which they have not got. Nor does one remove the right to compensate people for something which they have never had. Over the years people have been paid large sums of money by this or that canal company, as well as by the Transport Commission, on the basis that the right has existed. If the right did not exist, then none of these people could have got into a court of law, let alone to have got out of it with any cash. If my noble and learned friend the Lord Chancellor is right, then every court of law which has ever adjudicated and awarded any sum of money to anybody over the past years has been wrong. That must be true. Let us start with that.
§ Where do these rights come from? The Lord Chancellor asked that very question in this House and I intend to give him the answer, not from any paper given me by the Inland Waterways Association but from a document sent to me by him. This is a list of the public navigation rights conferred by Local Acts in the case of canals owned by the British Waterways Board. I am not sure whether my noble and learned friend can tell us whether this was prepared by his Department or by the British Waterways Board but I presume that it is authoritative.
§ It lists 63 Acts—that is, amalgamating two which were clearly consequent on each other—and it puts them under headings A, B, C and D. It says that the Category A Acts have a right specifically limited to the carriage of goods, as considered in respect of the Ashton Canal. 1040 That is very handy, because the Ashton Canal Act has been passing round many hands of late, and we know what the state of that is. So we can see that of the waterways listed, 22 out of the 63 have Ashton Canal-type clauses. That is what is meant by this piece of paper.
§ The clause which dedicated to the public the right to use the Ashton Canal has been tested very thoroughly. In its early days the Ashton Canal had passenger craft and cargo craft running on it, and there was a dispute between the two types of craft. Some of the passenger craft were a bit over-enthusiastic about their right of way over cargo and so on, and the Ashton Canal authorities tried to take control of the passenger craft, either to regulate them or to drive them off the waterway. They found that they had not the power to do it; in other words, the passenger craft had a right to be there. To prove this, I may say that the Ashton Canal Company had to go to Parliament to promote a Private Bill to remove the right of the passenger craft to be there, in order to control the situation. In other words, the Ashton Canal Company went to the trouble and large expense of promoting a Private Bill to alter their own dedication clause which, according to my noble and learned friend the Lord Chancellor, is limited to the carriage of goods.
§ Incidentally, they got a Private Act enabling them to control passenger craft, but it did not do them much good because almost immediately afterwards they were bought up by a railway company, and in the course of the Act transferring the canal to the railway company the original clause was put back. So the Ashton Canal clause stands now as it did at the start, and, quite clearly, contains the right of passenger craft to navigate. Of the 63 Acts listed here 22 are of the Ashton type, according to my noble and learned friend's own paper which he handed to me.
Category B contains 27 Acts, and of these the paper says:
A right not specifically limited as above but exercisable on payment of tolls.
In other words, if you paid your money you had a right to pass. If you wished to pass, a canal company had a right to demand a toll. I have one or two copies of Category B clauses. Here is
one from the Oxford Canal Act which is listed in the Lord Chancellor's list:
Be it further enacted … that all persons whatsoever shall have free liberty to use the roads and other private roads and ways, except towing paths"—
which have never been rights of way—
and also to navigate upon the same cut and canal with any boats or vessels not exceeding 7 feet in breadth".
That is, of course, the width of the locks and it is only reasonable to insert those words. It goes on:
and upon such payment of rates and duties as shall be demanded by the said company of proprietors … not exceeding the rates therein before mentioned.
§ There is a Category C, which contains a further three Acts. They are precisely the same as those in Category B, but certain private rights—not public rights—with which we are not concerned are not included in those Acts. So there are a further three Acts to add. Then there is what my noble and learned friend called the D Category, which contains another two Acts which are not only of the same type as Categories B and C, but contain a right which specifically includes public pleasure boating. So those can be added to the bag.
Then I have put down an E Category, because there are certain waterways which have certain specific clauses slightly different from the normal. Into that category I have put two, where I am afraid my noble and learned friend, or whoever worked this out for him, has made a "boob". He has put down the Ellesmere and Chester Canal and said,
No boats for carrying passengers except by agreement.
It is not quite like that. I have looked up the clause in the Library and it says,
No boats carrying fare-paying passengers except by agreement.
In other words, it is a clause to enable a waterway to put an extra charge on hire craft, which is precisely what the British Waterways Board and the Thames Conservancy do at the moment in respect of those boats which are specifically used for the purpose of let or hire. It is a very reasonable clause. A "boob" has also been made in respect of the Huddersfield Broad Canal. The note says,
Vessels under 15 tons not to use locks".
I am afraid that somebody did not read the rest of the clause which says, "unless paying tolls". So that is obviously a C Category clause in its complete essentials.
§ I have found one canal on this list which I put in an F Category, and it is right at the end. It is the Western Canal and my noble and learned friend's list says, "No rights conferred". This may puzzle him, but it does not puzzle me at all. The Western Canal was a tug canal, and a tug canal did not carry boats. A tug canal was a trench from a colliery to some convenient discharging point, along which wooden tubs full of coal were towed in a long string by a horse. Therefore, it was not really suitable for boats. The last thing one would want to meet if one was in a boat would be a long string of tubs towed by a horse. Therefore, quite rightly in this case, no rights were conferred. Incidentally, the waterway has been closed for a long time; nobody could conceivably use it.
§ I have a list given me by my noble and learned friend, and, so far as I can make out, every single case in this list is dead against him. I do not see how, from this list, he can make out that there is no public right. So far as I can see, these dedication clauses appear in every single Act. Your Lordships may remember that at the Committee stage my noble and learned friend produced an Act which he said contained no dedication clause. I think I can probably explain that. Every time a waterway is created there is first of all an originating Act, and that Act contains the necessary dedication clause. Subsequent Acts do not. They do not need to; it is in the first one. It may be that it was one of those Acts that he was holding. I have asked my noble and learned friend which Act it was that he was waving on the Committee stage, but he seems to have lost it. He does not know; he cannot find it. I cannot find it, either. I cannot find one of these Acts which has not this dedication clause. I beg of my noble and learned friend to try to find that Act. I shall be very interested in it.
§ Now there are the navigation rights laid out in these clauses, tested in the courts, compensated for when they were taken away and further confirmed, if such be needed, by the extreme keenness with which they are dealt with in this 1043 Bill for the purpose of removing them. The British Waterways Board have argued that all these rights have ceased. They say that these rights have ceased because the British Waterways Board now have the right to charge whatever they like for a passenger boat. It is said that because the Board have the right to charge whatever they like there is no right of navigation, since if you say you want to go a mile they can say, "Very well; that will be £100". If they said so, as the law now stands they would in fact be denying passage through the waterway, and if one went to a court that charge would be called completely ultra vires. It would not be allowed. The court would tell the British Waterways Board: "You are not trying to charge these people £100 for passing through the waterway; you do not expect to receive £100. What you are doing is telling these people that the waterway is closed, and this is merely a sneaky way of doing it in spite of the Acts of Parliament and the rights of navigation." The Board would be told that they certainly had the right to charge what they saw fit, but that it had to be a genuine charge, which was meant to be a charge for a genuine service, which was allowed and which had been given and taken. To pretend anything else is ridiculous.
§ For example, the roads are rights of way. The road fund licence may be put at any figure a Government see fit; but if my noble and learned friend or the Attorney General, or anybody else, were to rise in a court of law and suggest that because the Government could raise the road fund licence fee to anything they saw fit the roads were thus not public rights of way for motor cars, and therefore there was no right to compensation in any case where the Government were affected, he would be considered not fit to hold his office; nor would he be. To say that the Board's right to charge what they see fit removes the right of navigation is complete nonsense. Also, of course, it demonstrates again that the British Waterways Board are convinced that there is a right of navigation, apart from this joke of theirs about charging what they see fit. That is the argument as to whether there is a right.1044
§ But, my Lords, even if there is no right at present, why should there not be one? Why should a man in this country not be entitled to travel on the waterways of his country as a right? We have been given several answers by the Lord Chancellor, some publicly and some privately, and none of them satisfies me. We have been told that once a man had a right he would have a right to all sorts of compensation if he was injured, or one thing or another. That is true. It has been suggested that if there were no such right such compensation would also be given under another Act. But in point of fact we have discovered that should this right be taken away then the British Waterways Board, by the regulations which they put on the back of every licence taken out—and one has to take out a licence to navigate—take away these rights to compensation; and if this right to navigate is removed, then the Board will be able to protect themselves against any action for negligence, damage or injury.
§ There are other reasons why it is really a stupid idea to remove this right to navigate. Let us face it: where is the harm in this right to compensation? We have already gone into that on a previous clause. Why should there not be a right for people to be compensated? There is a whole series of reasons for this. I hope your Lordships will excuse me for one moment, but I have had to do a great deal of work on this and it is not altogether easy for a non-legal person like myself to get all round it. I am a waterman and not a lawyer. It is suggested that should the right to navigation be general over the whole of our waterways it would be impossible for the British Waterways Board either to close a waterway or to redevelop it for some other purpose. It would be impossible for them to cut down the extent of upkeep so as to make it cheaper to look after the waterway. It would be impossible for them to cut it down so that smaller craft could be allowed to use the waterway than heretofore, and so on. All this has been suggested, but, my Lords, it is all complete nonsense. The fact of the matter is that the right exists for a certain size of boats—the size of boats for which the canal was built. You cannot put the "Queen Mary" through a waterway with 7-feet wide locks. No 1045 right to do so has ever existed or ever would exist.
§ It has been suggested that you could not reduce the size of a waterway legally. But you can. You can close a waterway legally now, merely by an order of the Minister of Transport. If you can close a waterway by order of the Minister of Transport as the law now stands, obviously it must be possible, in a lesser case, not to close it but to reduce it in size. It must be possible to say, "In future, this waterway will not pass boats 7 feet wide and 4 feet 6 inches deep, but only boats 7 feet wide and 2 feet deep." Or it would be possible to make an order so that the height of bridges could be lowered, the amount of dredging necessary to keep the waterway deep could be cut down, and all the rest of it. All this would be perfectly possible. It can be done by order now. Why should it not be done by order in the future?
§ Another argument put to me is that if there was a right of navigation—as if there was not … —the waterway would have to be kept open for 24 hours a day by law and anybody could compel the waterway owner to let them go along that waterway at any time regardless of the trouble that the waterway managers were put to. The person who should really speak on this matter, of course, is the noble Lord who knows so much about the Thames Conservancy. The Thames Conservancy is a public right of navigation. Yet its staff do not have to be "on tap" for the whole 24 hours; they work reasonable hours like reasonable men and everybody is satisfied. I do not think that anybody has ever sued the Thames Conservancy because the staff were not on duty for 24 hours a day. There is no reason why a public right of navigation which has always existed should enable anybody to sue the waterway owner because the waterway is temporarily closed. A waterway may be closed for many reasons: because of the time of day or night; the lockkeeper may need a bite of lunch—although on most of the nationalised waterways there are no lock-keepers.
§ THE MINISTER OF STATE FOR COMMONWEALTH AFFAIRS (LORD SHEPHERD)
My Lords, I wonder whether my noble friend would permit me to intervene. I know that this is of great interest to him, but I am not quite sure 1046 how far his speech is at the moment relevant to the Amendment. My noble friend will bear in mind that there are a considerable number of Amendments, many in his own name, which need to be considered and I would hope that he would keep his remarks relevant to the Amendment.
VISCOUNT ST. DAVIDS
Yes, my Lords. I am trying to answer the many objections which have been made both publicly and privately to me, by the noble and learned Lord which I think need to be answered. If they are not answered now, if your Lordships do not hear these remarks from me, you will be hearing the other side of them from the noble and learned Lord. Your Lordships will not escape them one way or the other, I am afraid. I think my noble and learned friend will admit that this is so. If I do not scotch these questions now he will be bringing them up.
The fact is that it is not necessary to take away the public right of navigation, which undoubtedly exists, in order to work a waterway at the proper hours, to close it for repairs—for a reasonable period, of course—to fix its navigation requirements, to make it cheaper or simpler or capable of taking smaller boats. Any of this can be done without removing the public right of navigation which exists. If your Lordships wish to abolish the public right of navigation, you may say so. But if the Government will not, here and now, give us some guarantee that they will consider the public right of navigation and consider much more closely and give good reasons for removing such rights, then I really think that your Lordships should defend the Englishman's right to travel on his waterways and, if we are not given a reasonable answer, to defend it by taking this to the Division Lobbies. I beg to move.
§ 3.24 p.m.
§ THE EARL OF KINNOULL
My Lords, I should like to support the impassioned plea of the noble Viscount, Lord St. Davids. This Amendment—and I think it is important to mention this here—deals only with commercial and cruising waterways and not with the remainder. I think the House was somewhat confused during the Committee stage as to whether or not canals did, in fact, have a public right of 1047 navigation. Since the Committee stage I have checked with the textbooks, and they say they do. Coulson and Forbes on Waters says so; as does Pratt on Highways. One looks at the court cases. These appear to indicate that the public have rights of navigation. The Bill says it does in Clause 104(7).
The noble and learned Lord the Lord Chancellor took a different view during the Committee stage when he said:It is a complete delusion for the Inland Waterways Association, if I may say so with respect, to assume that on these manufactured canals there was any public right of navigation."—[OFFICIAL REPORT, 22/7/68, col. 755.]He went on to say (col. 756):There are no public rights.A little further on he said in the same column:I have never understood where a public right on a manufactured canal comes from.Further on he said:It is not given by Statute; it cannot fall out of the sky.A little further on he seemed to change his argument and he then said (col. 757):It is quite true that this old liability of the railways who inherited the obligations of the old canal companies survives, but as nobody has the money to do this, Section 64 of the Act of 1962 was a protection. Everybody knew that no modern canal organisation could possibly afford to carry out the stringent obligations of the 1873 Act …Then he went on to give a second reason why it could not be accepted:… maintaining a waterway for freight transport involves heavier expenditure than maintaining it for pleasure cruising and other recreational purposes.Amendment 88 clearly avoids this.
The Lord Chancellor continued (col. 757):Thirdly, the continuance of these old rights and obligations makes it impossible for the Board to redevelop a remainder waterway in the case where the old rights and obligations still exist.Earlier on, the noble and learned Lord seemed to be saying they do not exist and later he was defending why they should not exist.
The position on the artificial waterways, as I understand it, is that we are talking about approximately 60 canals. These come under about 600 separate Private Acts; there are about 6 to 10 Acts per canal. In the great majority of 1048 these, as the noble Viscount, Lord St. Davids, said, there is a dedication clause. I have a dedication clause with me. This clause reads as follows:Provided always, and be it further enacted, that all Persons whatsoever shall have free Liberty to use with Horses, Cattle, and Carriages, the Private Roads and Ways (except the Towing Paths) and with Boats or other Vessels to use the navigable Cut or Cuts, or Sluices, to be made by virtue of this Act, for the Purpose of conveying Coals, Iron, Iron Stone, Lime Stone, Timber …and so forth; in other words, for commercial use. This I accept. Then we look at the case of Case v. Midland Railway. There, I believe the case stipulated the principle that the greater includes the lesser; in other words, if there is a commercial right there is also a lesser right for the public to go over that canal. So one can see that these rights have not, as the noble and learned Lord said, "fallen out of the sky".
As well as dedication clauses there is Section 17 of the 1873 Act which was reiterated in Section 61 of the 1962 Act. Again, turning to the noble and learned Lord's argument during Committee stage, at one point he indicated that there was perhaps 5 per cent. of the canals where there was a public right of navigation. He then produced his financial arguments that we cannot afford these old obligations. I do not believe that the Government case in this is very strong. Their entire objective with Clause 104 seems to be to remove the centuries old right of navigation and to allow the Board to control the future users of the waterways by invitation. I see no valid reason why the right should be taken away on the commercial and cruising waterways. The question of hybridity arose earlier. I would suggest that Amendment No. 88 would overcome this.
§ 3.30 p.m.
§ THE LORD CHANCELLOR
My it is true, as my noble friend Lord St. Davids has said, that I have become an inland waterway enthusiast, but fairly recently; and coming to this rather new it seems to me that there are really two main reasons why we have lost, unfortunately permanently, so many canals: first, because we have had high-sounding Acts like the Regulation of Railways Act which have imposed liabilities to repair on people who could not afford to do it. So as they had not the money to do it, they did not do it, and the canals fell into 1049 disrepair until they were no longer permanently capable of use.
The second reason is the enormous amount of inland waterways time—if that is the right way to put it—which has been taken up by interminable arguments about the law. I believe the position to be really quite simple. Apart from the river navigations, where of course Common Law right has existed for centuries, nobody knows what the law is as to the remainder, because the law is entirely contained in 600 different Acts of Parliament, most of them very long and none of them very easy to read. They nearly all differ. I attempted some analysis from which I sent my noble friend a copy of about 60 of them. They all differ, too, among themselves. Most of them give a simple right to navigate commercial craft by paying so much a ton. Some of them, but not many, give some pleasure boating rights, sometimes limited to rowing boats, sometimes related to pleasure craft owned by riparian owners but by nobody else.
One of the objects of this Bill is to sweep away all these 600 old Acts, with all their many varying rights, and to sit down and think what ought to be the rights of those who want to use the canals and what ought to be the duty of repair which we put on the Board. The whole object and great advantage of this Bill is that it gets rid of all the old rights under the 600 Acts. It provides for compensation for any interference with private rights and then it sets out to provide, and indeed to continue, the present very sensible system with regard to licences.
It is really living in a world of unreality to talk about a public right of navigation. What do you mean by that? When you read:at all times and for all reasonable purposes without any unnecessary hindrance, interruption or delay",that sounds all very fine. But in 1962 the position was this. First of all, nobody could have had enough money to comply with the provisions of the Railways Regulation Act and so you had a section which said that that was not to operate; nobody was to be allowed to sue the Board for not having maintained anything. At that time the British Transport Commission, as it then was, could impose reasonable charges and make nagivation subject to reasonable conditions. If there 1050 was a dispute as to what was a reasonable charge or a reasonable condition, it was to be decided by the Transport Tribunal. Section 43 of the Transport Act 1962 changed all that. Subsection (3) says:Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the Board shall have power to demand, take and recover such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions as they think fit.Of course, they have to act in good faith. If they said, "We are going to close this navigation by charging everybody £l million for a licence", obviously they could not do that. But the change there made was that up to that time the conditions and charges had to be reasonable, and if they were not the Transport Tribunal had to decide. What is the use of talking about a navigational right when for years past (the licensing system has gone on now for about twenty years) you have been able, in fact, to navigate only on terms and conditions and by paying your licence fees? The language of this Amendment, I venture to think, has probably been taken from some old Act, because it talks about:paying to the Board the licence fees, tolls and other charges and observing the terms and conditions applicable thereto"."Thereto" seems to be your use of the canal. The Amendment refers to "tolls", and this, of course, was the old system. The canal company had toll-men along the banks and you paid as you used the canal. As you went along you handed over your pounds, shillings and pence. But that has not operated for twenty years. The Board has not the people to do it—
VISCOUNT ST. DAVIDS
My Lords, with great respect, it does operate now. There are quite a number of places on the waterways system where tolls are charged, especially places where special charges are required, such as, for example, the Anderton Lift, where navigation is especially expensive. Therefore the word has to be included.
§ THE LORD CHANCELLOR
My Lords, there are one or two such places, but they are very rare. Now the general system is that according to the size of your boat you get an annual licence. In those circumstances it seems to me to be useless to talk about a public right of navigation. It has not existed for 1051 years. The memories of the inland waterway enthusiasts seem to be very long, because they are always going back to what used to happen about a hundred years ago. If there is no public right of navigation, it is asked, why should there not be one? First of all, there is the question of safety. At present each applicant for a pleasure cruising licence receives, with the licence, a list of navigable waterways for which the licence is valid. If navigation rights are created generally over the whole of the Board's system, without the permission of the Board, and there was an attempt to navigate lengths of waterway which were not entirely, or not at all, suitable for the craft in question, safety factors obviously would come in.
The Board's system was not constructed for pleasure craft use and is not in all respects fully suitable for such use. The Board's system was, in the main, constructed solely for commercial barges. The Board must have adequate control over the use of their system by pleasure craft. The creation of rights of navigation by all types of craft would prejudice that control. Without it we might well find people frequently causing obstruction by taking their craft along waterways which were not wide enough or deep enough for them.
Secondly, there are the financial considerations. The Amendment would have a direct effect on the finances of the Board. It is through the licensing system that the Board obtains revenue from the owners of pleasure craft, but if the owners of all types of craft had the right to navigate the Board's waterways at will and without licence, the collection of fees by the Board would become virtually impossible. Not only would this Amendment deprive the Board of revenue; it would also increase the costs of the Board, for it confers rights of navigation "at all times". This would impose an obligation on the Board to keep their system open for use winter and summer and 24 hours a day. There would have to be shift-work to man locks, and the cost of local works would undoubtedly soar if the Board felt themselves obliged to maintain navigation at all times. They would, for example, never be able to drain a canal temporarily to carry out repairs. The words "at all 1052 times" alone makes the Amendment entirely unacceptable.
It has further to be remembered that there are implications for riparian owners. A significant part—I believe about 30 per cent.—of the Board's system consists of waterways which are not actually owned by the Waterways Board, and the creation of navigation rights in the way now proposed would mean imposing on many riparian owners burdens which are different from those to which their properties are subject at present. Then there is the practical effect, because from the practical point of view the creation of new navigation rights is quite unnecessary. The Board are a public authority with an obligation under Section 10 of the Transport Act 1962 to provide services and facilities on their waterways for those desiring to use them. The Board have every interest in maximising the use of their system. Any fear that persons who reasonably wish to navigate the Board's system and are prepared to pay the Board's charges would be excluded from the waterways because there was no navigation right is completely ill-founded.
This Amendment is based on the past. It asks us to look back to see whether those 600 Acts provide rights of public navigation and, if so, what rights. If you look back and you say, "Yes, for the owners of commercial barges they provide a public right for them to use this particular canal on payment of tolls" what advantage do you get from that? The system which has gone on for twenty years, under which the Board, whose interest it is to have their canals fully used, grant licences in return for payment, has worked perfectly well. For those reasons I hope that my noble friends, with whom I have had a very happy two and a quarter hours discussing this matter (and with their learned counsel as well) will be prepared to withdraw this Amendment.
§ 3.40 p.m.
§ LORD CONESFORD
My Lords, I hope that the noble and learned Lord on the Woolsack will at least recognise that this is the first time I have ventured to intervene on the Report stage of this Bill. I do so with some trepidation, because I am venturing to differ from the 1053 noble and learned Lord in his view of the law. It is a branch of the law on which, I fully confess, I am not in the least expert and of which I have had limited experience. Nevertheless, I did make some study of it at the time the Transport Act 1962 was going through your Lordships' House and I was able to effect some provisions as they now appear in that Act. I have done my best to study the textbooks and some of the decided cases.
The reason I commend this Amendment is that without it we are taking away from the citizen something which he already has and which is of value. I do not believe that, if we fail to take that away, the terrible results which the noble and learned Lord fears will eventuate. I do not believe that the recognition of a public right of navigation entitles every man to every sort of user in any sort of boat he acquires, but it does give some right analogous to the right that people have upon the highway.
The only leading case that I shall mention is a decision of the then Master of the Rolls, Sir John Romilly, in 1859, in Case v. Midland Railway Company, concerning the navigation of the Ashby-de-la-Zouch Canal. The effect of that case, which is dealt with in all the textbooks both on waterways and on highways, I shall venture to describe in a few words from the leading textbooks. Coulson and Forbes on Waters—I quote from the Sixth Edition—says:The navigation of canals is, of course, open to all the public on payment of tolls, and it has been held that there is a public right of user of a canal with boats propelled by steam, provided they do no more injury than is occasioned by traction by horses.Elsewhere in that leading work the authors say:A canal may be defined to be an artificial highway by water.That brings me to Pratt on Highways which says:It is essential to the notion of a highway that it should be open to all members of the public.The textbook then quotes the case which I ventured to cite.
I want to try to convince the noble and learned Lord, if I possibly can, that I am not advocating the recognition of this right in order to inflict any injury 1054 on the policy which the Government have in mind in this Part of the Bill. I do so mainly in the interests of the public; to prevent them from being deprived of something which is still valuable to them and which I think might be essential to them, even for some of the purposes which the Government themselves have in mind.
I do not think that anybody has given any valid reason why the public right of navigation should not be continued on a waterway which it is intended to keep open for the public's use at the public's expense. Prima facie it is natural that the public should have a right of navigation. If this right were taken away, it might be very difficult to see how the public could enforce the Board's maintenance duty. If the public have no right to use the water for navigation it seems to me there might be a danger of the court's saying, "What business is it of yours if the authorities are falling down on their obligations? You have no right to navigate. It has been taken away."
Some of the noble Lords who have preceded me in support of this Amendment have pointed out the possible difficulties under the law of negligence. I do not wish to free the canal authorities entirely from obligations that might arise from their negligence.
What is the great difficulty? It has been pointed out that the Thames Conservancy operates quite happily under the consolidating Act of 1932, a section of which confirms the public's right to use that river with commercial, freight-carrying and pleasure craft of a suitable size upon payment of the correct toll. That does not give them the right to command the services of the locks all night or anything of the sort. I really believe that some of the risks mentioned by the noble and learned Lord are imagined. The abolition of the right of navigation is not only novel law. It is a perfectly unnecessary deprivation of a public right. I do not think that the existing authorities suffer from the existence of that right. I am conscious of the value of the intervention of the noble Lord, Lord Shepherd, who rightly asked us to be brief. I have endeavoured to make my remarks as brief as possible. I support the Amendment and I hope that is will not be withdrawn.
§ LORD CHORLEY
My Lords, I should like to add a word or two in support of what my noble and learned friend Lord Conesford has just said, particularly as he and I were joined together in the discussions on the 1962 Bill, which, in effect, said that for the time being some of these rights should continue. On that occasion my noble and learned friend crossed swords with the Government which he usually supported, just as my noble friend Lord St. Davids is crossing swords with the Government to-day.
The fact that almost all the Statutes under which canals were made gave greater or lesser rights of passing and re-passing up and down the canals has been clearly made out. In 1962, just as my noble and learned friend Lord Conesford did, I looked at a number of the Statutes. They all contained dedications. Though I entirely agree with my noble and learned friend on the Woolsack that the phraseology is often different, in substance they fall into the groups which my noble friend Lord St. Davids has analysed for us this afternoon. Indeed, I think that in his speech to-day the noble and learned Lord the Lord Chancellor has very properly withdrawn quite considerably from the position which he took up on the Committee stage. It is quite impossible for a Government spokesman to look at all these things for himself. Obviously he has to rely a good deal on work done by other people. This is a complicated branch of the law, and nobody need be in any way surprised or ashamed that mistakes are made from time to time. I must say that I feel that, on the whole, the noble and learned Lord has made out a strong case: that we are dealing with a state of the law which was very apposite in Victorian England but which is not satisfactory at the present time in the condition into which these canals have fallen.
The real object of this Part of the Bill is to rationalise the situation, and on that basis it is to be welcomed. But I do not think that is any reason why people who have rights should be deprived of those rights. It has been an invariable rule that when an Act of Parliament deprives people of existing rights—which, of course, they have to prove, and prove beyond a peradventure—they should be compensated. I cannot believe that an enormous amount is involved 1056 in this, because many of these rights have now very little value. On the other hand, it is clear that some of them still have a value, and it would be altogether wrong that in those cases where the value exists and is removed by the terms of the Bill compensation should not be paid. I hope, therefore, that the Government will have another look at this matter.
It may be that a better sort of machinery than exists at present could be established. It is always difficult to adjust machinery which was established, perfectly sensibly and reasonably, a hundred years ago to deal with the situation which arises when a canal or other waterway over which rights exist is closed down and is dealt with on the basis of compensation; it may be difficult to adjust that type of policy, laid down properly in Act of Parliament and by judicial decisions, to the situation which exists at the present time. That I accept. But I do not think it takes away from the Government the responsibility of providing something in its place.
My Lords, there is not much time left, but this point has been made on and off since this Bill was introduced, so there has been time for those responsible to look at the problem and devise new solutions. I think they ought to be made to provide effective solutions for dealing with the situation which, in my view, has been proved quite clearly to exist, in which people are being deprived of rights, and where the effect of this Bill would be to take those rights away without compensation.
§ LORD BEAUMONT OF WHITLEY
My Lords, the noble Viscount, Lord St. Davids, in talking on Amendment No. 81, rather cut me to the quick by suggesting that he did not have much support. Possibly in a number of these Amendments he has more support than he thinks he has, and the reluctance of some noble Lords to show it is because they do not wish to tangle with such legal giants as the noble and learned lord on the Woolsack, and, indeed, with others of the stature to which the noble Viscount, Lord St. Davids, now appears to have raised himself. I intervene merely to say that on this particular matter it seems to me, and certainly to some of my noble friends on these Benches, that the noble Viscount and his supporters have had the best of 1057 the debate so far, and we hope that he will not withdraw his Amendment.
§ LORD NUGENT OF GUILDFORD
My Lords, as from the noises that are being made we seem to be coming up to a Division, I should like to make just a brief intervention. This is clearly no Party matter, and different views are held in different parts of the House. My own view, for what it is worth, is that this clause, and particularly Clauses 103 and 104, represent a broad deal which the Government have done with regard to the canals and inland waterways. I am not going to enter into the legal arguments. I have listened with attention to the noble and learned Lord on the Woolsack and to other legal experts, including my noble friend Lord Conesford. The legal views on this matter obviously differ, but the practical view, which I take, is that here we have a vast system of canals, many of which are derelict and others becoming derelict, which are expensive to keep up. In this Bill the Government are offering a deal by which the Inland Waterways Board will be provided with a substantial sum annually in order to maintain the greater part of these inland waterways in a navigable condition. Those are differentiated into two classes, and the remainder class, if not navigable now, will remain unnavigable, with no obligation to keep them in a state of navigation. That is the deal.
I agree with the noble Lord, Lord Chorley, so far, and I think he agrees with me, that this Bill sets out to rationalise the situation. That is something that we all want to see. My Party, when they were in government, started this, and noble Lords opposite and their right honourable friends have continued it. But where I differ from the noble Lord, Lord Chorley, is that I do not agree with him that the Government have given no rights in the place of whatever may have been there before. I am rather of the view of the noble and learned Lord the Lord Chancellor, that although there may have been something there before on paper, there was not much there in fact, because there was nobody to proceed against. Nevertheless, what is being given now by way of right to the public, by subsection (5) of Clause 104, is the right to those interested in navigation and who wish to use the waterways in Schedule 1 or 2 to bring an action in the High Court where 1058 the Board are falling down on their obligations. Subject to the Amendment which is coming by way of a new clause in place of subsection (6), which I objected to on the Committee stage, I think this is pretty reasonable.
It is in these terms that for myself I am prepared to accept this Bill. There must he some limit to the amount of public money which is used for this purpose. That has been defined by the Government it seems to me at a fairly reasonable level. The waterways system has been most exhaustively surveyed in this admirable survey, of which we have all seen copies. We know what the condition is. I think it has been fairly done. There may he a difference of opinion about some canals, but I think most people accept this as a fair survey on which these Schedules are based.
§ LORD CONESFORD
My Lords, I should like to put one question to my noble friend. Does he realise that the Amendment which we are discussing deals only with the classes where navigation is going to continue? This Amendment does not deal at all with the class that we were discussing under a previous Amendment. I should like to put this further question to my noble friend. He has called attention to subsection (5), in which it says that the High Court "may", on an application, call upon the Board to do this, that and the other. But what if the High Court says: "What on earth has it got to do with you? You have rights of navigation, anyhow".
§ LORD NUGENT OF GUILDFORD
I do not think that is a question for me to reply to. Subsection (5) is, to my mind, a substantial legal right for the users of the waterways. My reference to the waterways in the remainder section was simply to give the picture as I see it of the deal about which we are talking. This is not just a legal point. This, to my mind, goes to the essence of the Bill. For that reason I think it is a reasonable deal, and I should have thought that the noble Viscount, Lord St. Davids, and the noble Earl. Lord Kinnoull, would be unwise if they pressed this Amendment to a Division.
VISCOUNT ST. DAVIDS
My Lords, I have listened with much interest to the various speeches which have been made, 1059 and there is one point on which I must make an apology to my noble friend Lord Shepherd. I thought that by giving the answer before he put the question I might have saved the noble and learned Lord the Lord Chancellor from making part of his speech, but he went on reading it out from his brief all the same, in spite of the fact that I had already answered the objection that he was about to make. So it did not shorten the time. Nevertheless, it is true that the right of navigation we are asking for is on the waterways that are navigable and not on the ones which are unnavigable. We are not asking for people to be allowed to go along dangerous waterways. The Minister is perfectly able to close a waterway if it is in a dangerous state and there is no money to put it right. We are not asking that all the ancient rights in all these ancient Acts should be brought back to life. I wish to see them all dead and buried. But I should like to see the right of navigation which is contained in small bits in each of these Acts relating to the particular waterway concerned now put as a general, simple right, simply so that we can tear up all these antiquated Acts, throw the lot in the wastepaper basket and start off with a reasonable system. The right of navigation will not cost the Government one penny. What it will do is to make the Government's position very secure.
We must remember, my Lords, that so far we have been talking almost entirely about the amenity waterways, and these are less than half the navigable waterways which are under the British Waterways Board. The other waterways are the cargo waterways, and the cargo waterways are being worked commercially in cargo at a profit. The whole Government deal on the matter of finance entirely depends on the fact that if the cargo waterways should suddenly go down financially at a run the entire Government deal would be wrecked. There would not possibly be enough money to keep the system going, either the cargo
§ waterways or the amenity waterways. Let the cargo waterways, on which the amenity waterways system is standing financially, go down and the whole system, the whole deal, is altogether just a mess and a pile of wreckage.
§ The right of navigation, which I think I must have proved to your Lordships does exist, exists on the cargo waterways as well as on the amenity waterways, and if you take it away from there you are making the commercial situation much more "dodgy" for the cargo firms. These cargo firms depend on all sorts of things for their commercial running. One of them is security of tenure. And if there is no right of compensation, if there is no right to security of tenure, if there is no right to navigate, it is going to make it far more difficult for these cargo firms to run at a profit. It will make them much more doubtful of their position, if it does nothing else. If the cargo waterways start carrying less cargo, and if the cargo waterways become less profitable as a result of taking away this right of navigation, then the entire deal that we have been talking about is gone, is finished, is ruined, and this Bill is simply a piece of nonsense. It is that, that above all else, that we must protect. If that has gone, everything has gone.
§ Therefore, I am afraid that I cannot accept any possible offer asking me to withdraw this Amendment. This Amendment must stand, because if this goes, and if the cargo waterways go, then the lot has gone and the right of navigation and all the rest of it, whether it existed or not, is simply in the wastepaper basket. Let us keep this right of navigation. If we have not the foundations on which this building happens to stand, we have not a building at all. I must stand where I am, and if this Amendment goes to a Division, go to a Division it must.
§ 4.5 p.m.
§ On Question, Whether the said Amendment (No. 88) shall be agreed to?
§ Their Lordships divided: Contents, 49; Not-Contents, 49.1061
|Aberdeen and Temair, M.||Balerno, L.||Byers, L.|
|Ailwyn, L.||Balfour of Inchrye, L.||Chorley, L.|
|Airedale, L.||Barnby, L.||Conesford, L.|
|Albemarle, E.||Beauchamp, E.||Cork and Orrery, E.|
|Ampthill, L.||Beaumont of Whitley, L.||Craigavon, V.|
|Arran, E.||Belstead, L.||Cromartie, E.|
|Daventry, V.||Headfort, M.||Rankeillour, L.|
|Dundee, E.||Kings Norton, L.||Rea, L.|
|Ebbisham, L.||Kinnoull, E. [Teller.]||Sackville, L.|
|Effingham, E.||Lansdowne, M.||St. Davids, V. [Teller.]|
|Elliot of Harwood, Bs.||Long, V.||St. Oswald, L.|
|Ferrier, L.||Lucas of Chilworth, L.||Sempill, Ly.|
|Foley, L.||Mersey, V.||Somers, L.|
|Fortescue, E.||Milverton, L.||Strange of Knokin, Bs.|
|Fraser of Lonsdale, L.||Mowbray and Stourton, L.||Teviot, L.|
|Gridley, L.||Nunburnholme, L.||Wakefield of Kendal, L|
|Grimston of Westbury, L.|
|Addison, V.||Granville of Eye, L.||Pargiter, L.|
|Archibald. L.||Hall, V.||Phillips, Bs.|
|Beswick, L.||Henderson, L.||Popplewell, L.|
|Bowles, L.||Hilton of Upton, L. [Teller.]||Ritchie-Calder, L.|
|Brockway, L.||Hirshfield, L.||Rusholme, L.|
|Burden, L.||Hughes, L.||Sainsbury, L.|
|Carron, L.||Hurcomb, L.||Serota, Bs. [Teller.]|
|Champion, L.||Jessel, L.||Shackleton, L.|
|Crook, L.||Kennet, L.||Shepherd, L.|
|Crowther, L.||Kirkwood, L.||Sorensen, L.|
|Delacourt-Smith, L.||Latham, L.||Strabolgi, L.|
|Douglas of Barloch, L.||Leatherlana, L.||Summerskill, Bs|
|Douglass of Cleveland, L.||Lindgren, L.||Wells-Pestell, L.|
|Faringdon, L.||McLeavy, L.||Winterbottom, L.|
|Fiske, L.||Maelor. L.||Wolverton, L.|
|Gardiner, L. (L. Chancellor.)||Mitchison, L.||Wootton of Abinger, Bs|
|Geddes of Epsom, L.|
On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
My Lords, there being an equality of votes, in accordance with Standing Order No. 50 (which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment) I declare the Amendment disagreed to.
Resolved in the negative, and Amendment disagreed to accordingly.
§ 4.15 p.m.
§ LORD CHORLEY moved Amendment No. 90:
Page 136, line 42, at end insert—
("() The duties imposed by paragraphs (a) and (b) of subsection (1) of this section shall include the duty to maintain, in a reasonable condition for supporting a right of way, any bank of a commercial or cruising waterway carrying a public path shown on a definitive map published under Part 4 of the National Parks and Access to the Countryside Act 1949:
Provided that where the Board incurs expense under this subsection, the local highway authority shall make a reasonable contribution under section 111 of this Act towards such expense.")
§ The noble Lord said: My Lords, we now pass to a rather different problem, that of protecting the interests of those who use the footpaths which so frequently exist on the banks of the canals and inland waterways. This Amendment 1062 is really an amended version of an Amendment which was moved by my noble friend Lord Molson at the Committee stage. Clause 104 puts various duties on the Waterways Board to maintain their waterways. It is a clause which is essentially concerned with the maintenance of the waterways, but at the same time it relieves them to quite a substantial extent of duties which would otherwise be upon them. Except in so far as I would pray that in aid to a certain extent for the purpose of suggesting that they should give a quid pro quo in return, I do not make any particular point on it.
In explaining the purpose of the Amendment, I do not think I can do better than to read its terms. It says:
The duties imposed by paragraphs (a) and (b) of subsection (1) of this section"—
that is the earlier section—
shall include the duty to maintain, in a reasonable condition for supporting a right of way, any bank of a commercial of cruising waterway carrying a public path shown on a definitive map published under Part 4 of the National Parks and Access to the Countryside Act 1949.
Then comes the proviso, which is important because it is mainly here that the amendment to the earlier suggestion appears:
Provided that where the Board incurs expense under this subsection, the local highway
authority shall make a reasonable contribution under section 111 of this Act towards such expense.
§ I ought to mention in passing that this Amendment is rather wider than the one moved on the earlier occasion, because it now covers not only the cruising waterways but also the commercial waterways. The footpaths on some of the commercial waterways are of some importance. It is not so likely that in the case of commercial waterways the banks will actually get into a bad state of repair, and therefore on the earlier occasion we rather concentrated on the cruising waterways. However, it is right and proper that if this proposal is accepted it should apply to both types of waterway. It seeks to ensure that the banks of these waterways should be maintained not only as needed for navigational purposes, whether for commercial craft or cruising craft, which is the obligation put upon the Board by the earlier part of the clause, but also that where they carry public footpaths they shall be maintained in such a way that the footpaths are maintained also. In this it will, if accepted, implement the policy set out in the Report of the Gosling Committee on Footpaths, which reported not so many months ago, and the major proposals of which have been accepted by the Government. Indeed, I do not know that the Government dissent from the proposal of the Committee in this respect; it is really the problem of the machinery for implementing the Gosling Committee's proposals in relation to these footpaths which are carried on canal banks that is in question. Obviously, if the banks are allowed to collapse the footpath effectively disappears with the collapsing banks, and it is the prevention of that state of affairs that is the whole object we have in mind in moving this Amendment.
§ I do not propose to take up your Lordships' time by expatiating on the value of these footpaths; I said something about that at an earlier stage. The Government have agreed that these footpaths are of great value, and the noble and learned Lord, in the debate on that occasion, in effect threw his weight behind the general policy of the Gosling Committee in respect of this particular matter. Unfortunately, he did not allow himself to be carried along with his enthusiasm for the footpaths—or, at any rate, not far 1064 enough to accept our proposal in relation to the way the footpaths might be maintained. In other words, he resisted the proposal on that occasion.
§ The present proposal is substantially different from the earlier one. We took into account what was said on that occasion, and I hope (although possibly not with a great deal of optimism) that the result may be a change of opinion from those in authority. The noble and learned Lord resisted the Amendment on two or three main grounds. First of all, he said, this really is dealing with footpaths and rights of way, which is really a matter for the highway authority and no concern of the Waterways Board; that in effect this is an attempt to put an obligation to keep up footpaths on a Board which is concerned only with navigational matters and not with the provision of footpaths, however valuable footpaths may be. In effect, he said that under the Act of 1959 (I think it is Section 38) this obligation is placed upon the highway authority. As I understand it, however, the 1959 Act was merely re-enacting the previous state of the law, because that has always in effect been an obligation of the highway authority. But of course, as indeed the noble and learned Lord himself pointed out—although I thought he perhaps rather skated over it—the obligation which is laid down in the Statute relates only to the surface of the footpath or the highway as the case may be; it does not apply to the land itself.
§ This has been quite clearly held in the High Court on more than one occasion. I think the leading case on the subject is the Attorney General v. Staffordshire County Council, which made it perfectly clear that, as happened in that particular case, if an embankment upon which a footpath exists crumbles away and disappears there is no obligation on the highway authority to rebuild the embankment so that the footpath can go along it. An action asking the court to make a declaration that that was an obligation of the county council, the highway authority in that case, was quite definitely refused by the High Court. It is therefore quite obvious that there is no obligation at all on the highway authority, in the event of the canal bank crumbling away, to rebuild it in order that they can maintain the surface of the 1065 footpath which formerly went along it. Indeed, if there were such an obligation, it would in effect be to a large extent subsidising the Waterways Board, because they would get the job of rebuilding their bank done for them.
§ This has been well brought out in connection with the towpath along the Thames, which has been a good deal in discussion over the last years. I have a letter, which I do not think I need read to your Lordships, from the Surrey County Council in which they state categorically that an attempt to persuade the Ministry of Housing and Local Government to assist in the repair of a towpath was not within the Minister's powers. Thus it is not possible for the local authority to get the necessary finance from the Ministry for the purpose of carrying through a job of this kind, and this part of the noble and learned Lord's argument was, I think, fallacious.
§ But he then went on to say that in any event the highway authority has a permissive power to reinstate the highway or footpath, because a footpath providing a right of way is in fact, in terms of the law, a highway. Well, of course, that is not really good enough—a permissive power to rebuild a bank which is going to cost a very large sum of money. It may be that a rich local authority like Surrey or Middlesex, as indeed the noble Lord, Lord Nugent, suggested in a very interesting contribution he made on the last occasion, will be able to provide the money. But if you are in a part of the country where the local authority is not rich—and we must remember that, as the letter of the Surrey County Council shows, the Ministry is not in a position to help—the fact that the local authority has a permissive power to do this does not take one very far. What we need, as Lord Molson very quickly saw when the noble and learned Lord made this point on the previous occasion, is something mandatory which puts on the highway authority the legal duty to do the job. It would be unfair, I think, to place on a not very financially strong local authority the job of repairing an extensive embankment.
§ There is another possibility which the noble and learned Lord may have had in mind. His argument was of such a shorthand character on that occasion that he did not develop it. It is possible that 1066 if the embankment was in such a state that it would be unreasonable to expect the local authority to build it up again it might go back behind the bank on to the land of neighbouring owners and make a new footpath there. That is a possibility; but it is not a very practicable one, because in so many of these cases the land near to the banks of the canal is under horticulture or good agriculture, or comprises the gardens of the various riparian owners. In these circumstances it would be a very serious matter if the local authority were to go, shill we say, 40 or 50 yards back behind the bank of the canal and proceed to construct a footpath through the fields and gardens of all the people who were carrying on their horticultural activities there. So this really is not a practical way of ensuring that the footpath is kept up.
§ The noble and learned Lord then went on with what at the time I thought was a more promising line. He said that we could rely on Clause 110 (which, incidentally, has now become Clause 111—it is mentioned in the Amendment) which, he said, would enable the local authority to do a job of this kind, and that I could take encouragement from this. Indeed, not having studied the clause really carefully, I took encouragement. But when one looks at the clause more carefully one sees that there is not much cause in it for encouragement. To start with, it is not mandatory, so it is defective for the reason which I have already pointed out. Then all that it says is that the local authority can assist. That, no doubt, is all right if it is a wealthy local authority. If it is not, then it is not going to make use of the powers which it will receive under the new Clause 111.
§ But, worse than that, it is not at all clear that, even if it has the money, it can properly use it. The clause says that it may assist somebody else. Unless there is somebody else doing the job there is nobody that it can assist. There is nobody else to do the job except the Waterways Board, and if the Waterways Board says, "It is not our job, and we are not going to do it", there is nobody it can assist, and a ratepayer could go to the High Court and get the authority surcharged for wrongly spending its money. It would be no answer to say, "Section 111 enables us to assist." The reply is that they arc not assisting anybody; they are working on their own. 1067 So this clause is not at all encouraging and it does not give us any particular help.
§ Obviously, there is a great deal to be said for putting the responsibility on the highway authority. In the intervention on the Committee stage to which I have referred, Lord Nugent of Guildford took that point. He said that this is really a job of keeping up a footpath, and that is the job of the highway authority. He went on to describe how the Middlesex and Surrey County Councils had, in a joint enterprise in co-operation with the Thames Conservancy, done a most valuable job on both sides of the Thames in upkeeping the bank for the purpose of providing a path which is much used and enjoyed by many thousands of people. But that was a completely voluntary effort on the part of two wealthy local authorities, and it really falls within the weakness of the situation which I have already endeavoured to deal with. The clause is in no sense mandatory and, as it at present stands, there is nothing in the Bill which you could use to make a county council which was not well off or which was apathetic get on with the kind of job which was so well done by Surrey and Middlesex on the occasion which Lord Nugent of Guildford told us about.
§ If the Government think that the highway authority should have the whole responsibility, then they should provide the legislative framework which puts that responsibility upon them; they should take the necessary legislative steps accordingly. But of course they will not do that. They know perfectly well that they would get into hot water with the local authorities if they put the whole of this responsibility on them.
§ Indeed, if one analyses the situation there is obviously a strong case for putting at any rate some of the responsibility on the Waterways Board; and in a final interjection which I made on the previous occasion I said that the speeches of the noble and learned Lord and of Lord Nugent of Guildford opened up the possibility of a co-operative effort on the part of these two authorities. That is what we have in fact tried to provide by the redrafting of the Amendment. There is a good case for putting at any rate part of the responsibility on the Waterways 1068 Board, first of all because the additional danger to the banks is due to power driven craft. This is undoubtedly a substantial reality in the conditions of modern navigation on these rather narrow canals. The damage, which will lead to a greater need for the repairs of footpaths, will, to a large extent, indeed I might say almost entirely, be due to the cruising craft and to the commercial craft which are using the canals. That is the main danger to the footpaths.
§ Of course the Waterways Board are going to get, and have already got, quite substantial sums on the commercial waterways from the charges which they make, quite properly, to users, both commercial and cruising, of these canals. If they are getting the money in, then is it not right and fair that they should spend at any rate part of it on keeping up the banks in such a way that the local authority can see to the proper surfacing of the footpath?
§ The other point is one which I have already made; namely, if you put the whole of the burden on the highway authority, then, in effect, you are subsidising the Waterways Board, because that Board has the obligation to keep their banks in repair. But it will be the highway authority which will be confronted with the job of building up again the banks which are required for the navigational purposes of the Waterways Board. Surely the equity of the suitation requires us to make the operation a joint one. This is what the Amendment seeks to do. The result would be that the Board would bear the cost of keeping the bank strong enough to retain the water for the purpose of navigation, and the highway authority would bear the cost of maintaining a footpath upon it. In this way the burden would be shared between the two, equity would be met and the needs of the walkers and hikers along these footpaths would be safeguarded. I hope your Lordships will feel that this rather longer exposition than I had intended to give makes out a particularly strong case why this Amendment should be accepted. I beg to move.
§ 4.39 p.m.
§ LORD HUGHES
My Lords, first of all, I have to express regret that my noble and learned friend the Lord Chancellor is unable to reply to the remarks of my noble I friend Lord Chorley. He has however, 1069 provided me with some notes which he himself would have used had he been here. I would say at the outset that I do not think that in a somewhat lengthy speech my noble friend has added any-think to what was said on Committee stage. In fact, he has largely gone over the ground of his own and other remarks on Committee stage in support of the Amendment and the reply which was made to them then. I do not know that that necessarily adds any weight to the views supporting the Amendment. The Government's view on this matter is really quite a simple one. It has been said on more than one occasion, but it must be said again, that there is only a limited amount of money available to implement the Government's new waterway policy, and that we believe that these limited resources are best allocated to the maintenance of the scheduled waterways. This Amendment would involve the Board in a commitment of unknown magnitude for which no provision has been made in the financial arrangements between the Government and the Board.
It must also be stressed again that the proposed Amendment would impose a completely new liability on the Board. The Board's present obligation regarding the maintenance of towpaths is almost entirely theoretical, relating as it does to the long discontinued use of the towpaths to haul barges and narrow boats. Thus Clause 104, in so far as it relieves the Board of this obligation, does not appreciably alter the present position. But this Amendment would go the other way; it would greatly extend the old liability: the Board would be bound to maintain the banks of a commercial or a cruising waterway not only for the purposes of navigation, but so that any designated footpath which may be there could also be supported. As has been said, the magnitude of this liability could be considerable, as public rights of way exist over some 60 per cent. of the total mileage of towpaths along the Board's waterways. And the liability would exist regardless of the extent to which particular footpaths were used. Not only would this be a new liability for the Board, but it is a liability that the ordinary landowner does not have to face. What happens on dry land with a footpath or even a highway which traverses the shoulder of a deep hill? If a highway is carried away by a landslide or flood, 1070 the landowner normally has no liability—unless he has caused the landslide or flood.
But although we are anxious that the Board should not be burdened with this new liability, we are confident that the Board will act within the spirit of this Amendment. The Board (as they made clear in their Annual Report for 1967) are anxious to encourage the use of their waterways for all kinds of recreation, including fishing and walking, despite the fact that they derive hardly any revenue from these activities. This is just one of the ways in which they are pursuing a new and much more positive policy. The Board welcomes the co-operation of local authorities, some of whom are already considering whether they could assist, either with money or with physical help, in the maintenance and improvement of towing paths.
It was argued in this House at Committee stage that it would be possible for valuable towpaths to be lost simply because no party had primary responsibility for their maintenance. The Government do not agree that the Bill produces this result. As we see it, the Bill has the effect of leaving the appropriate highway authority responsible for the maintenance of a towpath where it coincides with a public path. By virtue of Section 47 of the National Parks and Access to the Countryside Act 1949, coupled with Section 38 of the Highways Act 1959, public paths are maintainable at public expense, although where there already exists a particular liability for the maintenance of a path which is also a public path, that liability remains in force. With the cessation of the Board's liability for the maintenance of towpaths for their original purposes, any advantage that a public path may have derived from having been superimposed on a towpath will disappear—in practice such advantage amounts to very little—and responsibility for the maintenance will fall to the appropriate highway authority.
It has been suggested that the local authority would not always be able to maintain the towpath because of erosion of the bank. We would hope that this situation would not arise very often, and are confident that, if it did, the Board and the highway authority could come to some arrangement. Clause 111 of the Bill, as my noble friend Lord Chorley 1071 said, gives local authorities the necessary powers to contribute in such circumstances. We feel that it is far better to leave this sort of matter to local negotiation. And in this context, although we can see what has prompted the proviso to the Amendment, we think it is unavoidable. In the first place, it requires highway authorities to contribute to any expenditure which the Board would incur under this Amendment. Those authorities are not likely to be at all happy with that. And there would be room for endless argument about what would constitute a reasonable contribution in any particular case. We believe that the fears that have inspired this Amendment are groundless, and that the Bill as it stands allows for the maintenance of the towpaths in good condition, drawing on funds from various sources. My Lords, the House is asked by the Government, therefore, not to accept this Amendment.
§ LORD CHORLEY
My Lords, I am disappointed both with the noble Lord's reply and with the lack of support for this Amendment. I assure the noble Lord that what I have said to-day is not by any means exactly what was said previously. I devoted most of my speech to-day to showing the lack of substance in the arguments adduced by the noble and learned Lord on the Woolsack in connection with the obligation of the highway authority in relation to the keeping up of these footpaths, and I quoted authority. Naturally, the noble Lord who has replied does not have a brief which enables him to meet this case. In fact, he has not made any effort to meet it whatsoever. He referred to provisions in the National Parks Act under which the central authority may assist a highway authority in the provision of a footpath, but that is a very limited application. I was perfectly well aware of that, but I did not want to burden my speech with going into a side issue of that kind. That relates to long distance footpaths which are specifically dealt with in the National Parks Act and would only very rarely indeed, if ever, be apposite to enable the highway authority successfully to make a claim on the Ministry for the purpose of getting some financial support in carrying through an operation of this kind. If 1072 I may say so, that is typical of the lack of substance in the case the Government have put up.
In effect, what the Government are saying is that there is a long stretch of these footpaths which go along these canal banks and if in fact the bank subsides, then you have jolly well got to rely on the good will of the Waterways Board and the highway authority coming together and making some sort of a compact for dealing with it. At the same time, the noble Lord told us if the Act of Parliament itself puts an obligation on the highway authority to make a reasonable contribution then that is going to lead to untold wrangling and a quite impossible situation. These two arguments are obviously mutually quite incompatible and really show the extraordinary weakness of the Government's reply to my speech on this occasion. I feel rather inclined to follow my noble friend's example a few minutes ago, but without rather more encouragement from your Lordships I do not really feel that it would be justifiable to do so. In the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
THE EARL OF KINNOULL moved Amendment No. 93:
Page 137, line 18, leave out from ("If") to ("that") in line 19 and insert ("it appears to the Minister")
§ The noble Earl said: This Amendment is a valuable concession which the Government have given us and for which we are very grateful. Its purpose is to put upon the Minister the onus of altering maintenance duties, rather than leave it to the Board to make application to the Minister to do so. I beg to move.
§ LORD HUGHES
My Lords, since on this Amendment the name of my noble friend Lord Stonham is coupled with that of the noble Earl, it will be no surprise to your Lordships to hear that I am able to agree with it.
THE EARL OF KINNOULL moved Amendment No. 94:
Page 137, line 21, after ("thereof") insert ("or which would be likely to use any such waterway or part but for limitations caused by the existing state of maintenance thereof,")
§ The noble Earl said: My Lords, this is a simple Amendment which I hope will receive the same charitable support from the noble Lord, Lord Hughes. Its purpose is to allow the Minister by order not only to reduce the maintenance obligations of the Board but also to improve them. It is a simple purpose; it will give the Minister more flexibility in the future and will be a valuable power in his hands. I beg to move.
§ LORD HUGHES
My Lords, I am afraid that the noble Earl is unduly hopeful on this Amendment. It is not acceptable, largely for the same reasons as I advanced in reply to Amendment No. 90. It enables the Minister to vary the Board's maintenance obligations in both directions. At present he could reduce them, and this Amendment proposes that he should be able to increase them, in order to cater for the needs of craft which could navigate the waterway if its existing condition did not prevent such use. Thus, by making or threatening to make an order, the Minister would be enabled to compel the Board to improve the condition of a waterway.
The Government cannot accept this Amendment. It would be wrong that the Minister should be put in a position where he could be urged to take action to compel the Board to undertake what in some cases might be a costly improvement scheme. Subsection (2) of Clause 104 already provides that where a waterway is improved or restored the Board's maintenance obligations will increase automatically. If subsection (2) stands, then the proposed change in subsection (3) is to this extent unnecessary. Schemes for improving or restoring a waterway are matters for the Board to consider in the light of available funds and the prospects of financial viability. The Board will, of course, have the help of the Amenity Advisory Council where there is any question of improving or restoring a length of waterway with a view to adding it to the cruising waterways. This is provided for in subsection (2)(a)of Clause 108, but restoration and improvement schemes are not matters for the Minister to compel the Board to undertake. For these reasons, I cannot advise the House to accept this Amendment.
§ THE EARL OF KINNOULL
My Lords, I am grateful to the noble Lord for his reply. Although naturally I am disappointed with the reply, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD HUGHES moved Amendment No. 95:
Page 137, line 22, after ("may") insert ("(after consultation with the Board)").
§ The noble Lord said: This Amendment would oblige the Minister to consult the Waterways Board before making an order under this subsection varying the Board's maintenance duties with respect to any waterway or part of a Water-way. We feel that it is only right that if the Minister wishes to make such an order he should not do so without first consulting the Board. This is the sole purpose of the Amendment. I beg to move.
§ 4.53 p.m.
LORD HUGHES moved Amendment No. 96:
Page 137, line 33, leave out subsection (5).
§ The noble Lord said: My Lords, Amendment 96 could usefully be discussed with Amendment No. 100, in the name of the noble Lord, Lord Nugent, and others and with Amendment No. 104 in the name of my noble friend Lord Stonham.
§ Before moving on to discuss these Amendments, I should like to make it absolutely clear that it is, and always has been, the intention of the Government that the Waterways Board should be placed under a statutory obligation to maintain the commercial and cruising waterways. It is also their intention that any person who can show that the Waterways Board have seriously failed to carry out their maintenance obligations in respect of a significant length of waterway should be able to obtain from a court an order requiring the Board to remedy that failure. It has never been intended that this procedure should be made a sham by any action taken by the Minister to alter the category of a waterway. On the other hand, it would be entirely wrong for the Minister to be inhibited from proposing and making an order under Clauses 103(3) or 104(3) at any time if he decides that this is the right course in the public interest. Subsection (6) was 1075 included in the clause as originally drafted, because without a provision on those lines the Minister could be frustrated by the institution of court proceedings under subsection (5). This is by no means a fanciful possibility. There is a history of litigation in these waterway matters, and experience has shown that waterway enthusiasts will, in practice, take whatever steps they can to prevent a disused canal from being closed to navigation, sometimes without very much regard for the cost to the taxpayer.
§ However, during discussions at the Committe stage in this House it became apparent that several noble Lords considered subsection (6) as originally worded to be unfair to the potential litigant. The noble Lord, Lord Nugent of Guildford, described it as giving the Minister power to change the rules in the middle of the game. The Government do not accept that the subsection as drafted is unfair, but a great deal of thought has been given to the possibility of amending it so as to remove even the semblance of unfairness. This is the purpose of the new clause which the Government have now put down.
§ It will do three things. First of all, it will secure, what I am sure must be secured namely, that the Minister's power to initiate and make orders shall not be at the mercy of any actual or potential litigant. Secondly, it will enable a litigant, who has started enforcement proceedings under subsection (5) before the initiation of the Procedure for a Minister's order to continue with these proceedings on the basis of the maintenance obligations in force when they began, and to obtain and enforce judgment on that basis, unless, exceptionally, the Minister certifies to the court that the matter is one involving substantial expenditure which is likely to fall on the Exchequer. This will ensure that there will normally be no interference with legal procedings begun in good faith before any question of a Minister's order has arisen. The qualification is included for the exceptional case only—for instance, the catastrophic situation where, in the absence of the qualification, a substantial burden may fall on the Exchequer. Thirdly, for the litigant who has begun enforcement proceedings after the Minister has initiated his order procedure, 1076 the position will remain as in subsection (6) as originally drafted. If he starts proceedings at this time, I do not think that this is in any way unfair. I hope that noble Lords will agree that this series of Amendments offers a reasonable solution of the somewhat tricky problem of the relationship between the Minister's order-making powers and the rights of the litigant. My Lords, I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, I should first like to thank the noble Lord, Lord Hughes, for the new clause and, if I may include him in my thanks, I should also like to thank the noble and learned Lord the Lord Chancellor. During the past two months I have had a lengthy correspondence with the noble and learned Lord on this point, and I was gratified that at the end of it he felt able to concede the general principle in Clause 104. It is quite true that during the Committee stage it was indicated on all sides of the House that subsection (6) was not really acceptable and was giving the impression that the Government were offering less than they really were offering in Clauses 103 and 104. So I am happy to see subsection (6) taken out, along with subsection (5), and the whole provision now rolled up in the new Clause 104.
I recollect that in urging the Government during the Committee stage to take out subsection (6) I recognised that there could be circumstances of some special emergency where it would be unreasonable to go to great expense to make some exceptional repair, and that there should be some way of protecting the public purse in such circumstances. It seems to me, therefore, that the new clause which the noble Lord, Lord Hughes, has moved is right in giving the litigant who has started an action the right to continue, unless such very exceptional circumstances occur.
The noble Lord may have noticed that I have put on the Marshalled List a small Amendment, No. 104A, which would add in subsection (4) of the new clause, after the word "substantial" in line 4, the words "and exceptional". I think it would be only in exceptional circumstances where the expenditure was substantial that this particular safeguard would be called upon. My point on this is that, inevitably, many of the repairs 1077 necessary on waterways are of substantial expense by their very nature. Therefore, this House would expect that this provision should be called into action only in exceptional circumstances where the expense was substantial. I hope that the noble Lord will feel able to accept that Amendment when I come to move it in due course.
For the rest, I feel that this is right; that the users of the waterways will have the right to bring an action where the Board have failed in some way to maintain the cruising waterways at a reasonable standard. They will have the confidence of knowing that in normal circumstances they can proceed with their action, and that if they have a good case they will win. On the other hand, the Minister can reclassify waterways where the Waterways Board have made out a case for reclassification. This seems to me just the right balance and, with the small Amendment which I am going to move later, I certainly commend it to noble Lords.
§ THE EARL OF KINNOULL
My Lords, I should like to make just one comment. I am not sure whether the noble Lord, Lord Hughes, can give us the assurance that he will accept my noble friend's Amendment, but the new drafting in subsection (3) is little different from that in the old subsection (6), and all it says is that the Minister must issue a certificate. I fully accept my noble friend's argument that the words "substantial and exceptional" would give some force, but at the present time it seems to have very little force.
§ LORD HUGHES
My Lords, with permission, may I point out that Amendment 104A is an Amendment to Amendment No. 104, and it would be appropriate that I should say something on it when I come to move No. 104 in due course.
Page 137, line 45, leave out subsection (6).— (The Earl of Kinnoull.)
§ 5.6 p.m.
VISCOUNT ST. DAVIDS moved Amendment No. 101:
Page 138, line 39, leave out subsection (8).
The noble Viscount said: My Lords, this is a small item and I can be brief. Subsection (8) acts only
If the Board acquire any inland waterway after the date on which this section comes into force".
If the Board acquire any inland waterway at a subsequent date, there will be an Act of Parliament by which they acquire that waterway, and that Act of Parliament will lay down the conditions under which they acquire it. It therefore seems that this subsection is unnecessary. We have added enough to this Bill: why not take a little bit out for change? My Lords, I beg to move.
§ LORD HUGHES
My Lords, I am very much in agreement with what the noble Viscount said about the desirability of leaving something out if it can possibly be left out, but that is not the position. The advice which I have is that there may be situations when the Board acquire a small length of waterway where a Local Act may be unnecessary, and subsection (8) would enable such acquisitions to be made so that they could fit into the system. It is clearly undesirable that the Board should have some waterways which are subject to Local Act navigation right provisions and others which are not. It was to secure uniformity that subsection (8) was included, although it has always been recognised that it would not be adequate to cover all the problems arising on any major acquisition.
In spite of this, the Government consider that subsection (8) should be retained, and while I am quite certain that the noble Viscount is quite enthusiastic about not making the Bill any bigger than it ought to be, he is in favour of making the length of waterways as great as possible. Subsection (8) makes it easier for some little lengths to be added in the easiest possible way, so I think he should swallow his objections to the length of the Bill and let this useful little part remain.
VISCOUNT ST. DAVIDS
My Lords, after hearing those noble and consoling 1079 words from my noble friend. I am extremely happy to beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS WOOTTON OF ABINGER)
My Lords, I understand that it is intended to combine with Amendment No. 103 the Amendments coming later in the name of the noble Lord, Lord Grimston of Westbury, so they should be discussed together.
§ LORD GRIMSTON OF WESTBURY
My Lords, I am agreeable to that, provided that I retain the right to move my Amendments when we reach them.
THE EARL OF KINNOULL moved Amendment No. 103:
After Clause 104, to insert the following new clause:
§ Section 104 not to affect Attorney-General v. Waterways Board
§ ". No provision of section 104 of this Act in so far as it operates to exclude the jurisdiction of the Courts or to modify the public rights of navigation or the duty of the Board as regards maintenance shall apply to proceedings now pending in the Chancery Division between the Attorney-General as plaintiff and the Board as defendants in relation to the Ashton Canal and that part of the Peak Forest Canal the subject of those proceedings."
§ The noble Earl said: My Lords, I believe that we are now moving again into troubled waters, and I am a little astonished to see that the noble and learned Lord the Lord Chancellor cannot be here, as he was very much engaged in the previous discussions.
§ LORD SHEPHERD
My Lords, I know that the House will accept that my noble and learned friend would always be here if he could, but he is involved now in deep discussions in regard to the Statement which was made earlier in the House. I am sure he regrets not being here as much as we regret it.
§ THE EARL OF KINNOULL
My Lords, I am grateful for the answer of the Deputy Leader. During the Committee stage there arose what one could possibly describe as a misunderstanding, to put it mildly on behalf of the Government, when the noble and learned Lord the Lord Chancellor—and I am sorry to 1080 refer to him all the time when he is not here—suggested from his brief that the litigation in the case of the Ashton Canal had been started in a somewhat improper manner. To quote his exact words, he said on that occasion:… the truth is that, knowing of this Bill, after it had been introduced they issued the writ in order to try to start an action to spike the Bill".—[OFFICIAL REPORT, 22/7/68. col. 766.]I hope that the noble Lord, Lord Hughes, will be glad of an opportunity to correct that remark, because I think that in fact it was not the truth at the time.
The very brief history of the Ashton Canal is that the action concerns a canal which has now become unnavigable through the neglect of the Waterways Board, and after months and even years of pressure to get the Board to move—and the pressure came from 18 local authorities and 12 other bodies—those joint bodies decided eventually to sue the Board. Instructions were given to start the proceedings, as I understand it, over 2½ years ago. At the time there were—and there still are—30 relators in the case. Perhaps it was unfortunate that at the very time the writ was sent to the Attorney General for his fiat, at the time when I believe he received the notice of it, the publication of the Transport Bill took place. The result is that if the Bill as at present drafted goes through, the Waterways Board will be in a position to avoid all responsibility in the case as to their duty of maintenance, and the case will fall.
I think one can say, looking at the history of the case, that the relators have done everything in their power to be reasonable to avoid the clash which has now transpired. On April 30 of this year a delegation representing twenty or so local authorities, accompanied by three local M.P.s and with the relators' solicitor, had a meeting with the Joint Parliamentary Secretary and pressed him to reconsider the position of the Ashton Canal under the Bill. On June 28 the solicitors for the relators wrote to the Minister of Transport suggesting that he should intervene and settle the dispute, with one of two possible courses: either that a consortium of local authorities and others be able to take over the ownership of the canals from the Waterways Board on terms to be agreed, or that the canals 1081 should be added as cruiseways to Part II of Schedule 12 of this Bill.
As I see it now, the House is faced with this delicate decision of either saying to the thirty relators, "You are too late", or of saying to the Board, "You must carry out your responsibilities and we will not interfere with the current case". I understand that the Board, after certain pressure, have agreed to a meeting with the interested parties— the body which, as I understand it, are prepared to take over this canal—on October 16. The timing of this meeting is unfortunate, because it gives us as the House of Lords very little time to see what would happen if they do not reach agreement, and the matter would then pass out of the hands of Parliament.
I suggest that the House has three courses of action. It can either, as this Amendment suggests, take the case out of the Bill; it can, as the Amendment to be moved by the noble Lord, Lord Grimston of Westbury, suggests, put the canal into Part II of Schedule 12; or the Government could give us to-day an undertaking either to instruct or to advise the Waterways Board to make an offer to this association which has been formed, or which is prepared to be formed, to dedicate the canal, plus the offer of an additional annual sum to cover all its maintenance. I believe that such an offer would be acceptable to this association. It is now, I think, up to the Government to say what they intend to do. I beg to move.
§ 5.16 p.m.
VISCOUNT ST. DAVIDS
My Lords, I wish briefly to support the noble Earl. If this Amendment is put into the Bill, it is quite obvious that the legal case will not be fought out. What will happen is that the Board and the various local authorities and those who are acting with them will get together and a reasonable deal will be done. It will be done on the basis on which the previous offers were made, and it will not be done with the Board able to put a pistol to the head of the other parties in the case.
This is the most sensible thing we can do as things stand, and I do not think anything else needs to be said about it except to point out once again what a terrible position a local authority are put into if they find a canal which, for the 1082 sake of what is called cheapness, is reduced to a water channel, and which, for the sake of what is called cheapness, is allowed to get into a state where it is supposed to be kept up to health standards but quite clearly is not—and anybody who has seen the photographs of the wreckage and the muck which was cleared out of the Ashton Canal by the 600 volunteers a few days ago will know what that standard means. If we can get this clause into the Bill we shall have a chance to sort the matter out on a basis which will be far cheaper to the Waterways Board than anything else that can be done; and then, perhaps, everybody will be happy.
§ LORD GRIMSTON OF WESTBURY
My Lords, I rise at this point because it has been agreed that my Amendments Nos. 115A and 116A should be discussed with this Amendment. That, I may say, was at the suggestion of the noble and learned Lord the Lord Chancellor I first of all want to get out of the way a matter which arose during Committee stage when an Amendment similar to this was being discussed and when I and the Lord Chancellor were involved in an exchange. The matter rested then that either he or I had been inadvertently misled, and I said that I thought the only thing to do was to try to get the matter sorted out during the Recess. As your Lordships may remember, the inference was that the action here with regard to these two canals had been started in order to spike the Bill, whereas my contention was that, if anything, it was the other way round—what the Bill would do would be to spike the action.
During the Recess I obtained a chronological resume of everything that had gone on since November, 1964, in connection with these canals, and from that it was quite evident that a tremendous amount of work had gone on continuously in getting the relators together in formulating the charge, in consulting counsel and in having meetings with councils and other bodies. Indeed, that is why such an immense amount of time was taken before everything could be marshalled and the writ applied for. I sent all this to the noble and learned Lord the Lord Chancellor and he was good enough afterwards to spare the time to have a talk with me. I think the noble and learned Lord is now quite 1083 satisfied that this is a genuine action on which a great deal of preparation has gone on over the years. But at the same time I accept the fact, for reasons which are in the resume and with which I shall not now weary the House, that the Government did not know anything about it. That is probably how the misunderstanding arose.
My Lords, having got that out of the way, we are left with the question of the position of these relators, 30 of them, who have spent a great deal of money in preparing this litigation in which they think they have a case against the Waterways Board; and if the Bill goes through in its present form without any amendment at all, the right that they had is taken from them by Parliament. We have had a great deal of discussion on other matters in this Bill, but I suggest to your Lordships that with regard to these two canals this is really a unique case. I think that your Lordships should consider very carefully before you agree that a right of this sort is to be swept away by Parliament and nothing put in its place.
My noble friend Lord Kinnoull has already referred to a letter written on June 28 last by the solicitors to the relators to the Minister of Transport, but in order to make my case I must read one or two extracts from it. It is a long letter, but I shall try to he as brief as possible. Among other things it said:We are aware that you have stated that your Ministry is not directly concerned with the litigation as such"—that is, the litigation to which I have referred—and in these circumstances we are instructed to invite you to mediate if you are willing on the basis of one of the following proposals: (a) that a consortium of authorities and others be formed to take over the ownership of the canals from the British Waterways Board on terms to be agreed; or, (b) that the canals be added as cruiseways to the Second Part of the Twelfth Schedule of the Bill"—?I might mention that my particular Amendments are related to that second proposal—in return for which the litigation would be withdrawn subject, of course, to the consent of the Attorney General and the approval of the court.Here is an attempt to get the matter solved. It is an extraordinary thing that 1084 that letter was acknowledged but that the solicitors heard nothing further until September 19. All that time elapsed when it must have been known that the Report stage of the Bill was coming up in this House. Eventually it was suggested that there should be a meeting—I think on October 16. A request was made that because this matter would be debated in the House of Lords on October 7, the meeting should be advanced in order that this House in considering the matter might have the benefit of anything that passed as a result of the offer of the relators. The reply came back that it was impossible. I must say that some effort might have been made by the British Waterways Board to advance the meeting in order that we should know about it in this House. But they did not do so.
My Lords, we now come to what is to be done. There has been a great deal of controversy into which I do not wish to enter over the maintenance of these canals. The Government have said that they cannot spare any more money for waterways, or, at any rate, for the cruiseways. But here is a unique case where the cost of bringing these canals into use again and completing the Cheshire ring is disputed. The Government mentioned the figure of £195,000, and others greater. These figures are disputed. It is also contended that if the ring can be completed it will eventually become self-supporting. I am not going to argue whether this is right or wrong. The case I am making is that it should be threshed out in public. If your Lordships let this Bill go through as it is, these people—who consist of local authorities (and a greater number than are in the relator action) and ether bodies—will be deprived not only of their rights to get the thing settled in court but also of having the matter settled by another method. For, if these canals are put in the cruiseways a public inquiry would need to be held before they were done away with.
At this time and after a long debate I have tried to be as brief as possible. I suggest that this is a unique case which should receive the very careful consideration of your Lordships and that a right should not be taken away from these people. I have made suggestions as to how this right can be preserved and 1085 I hope that the Government will have further thoughts on this matter and suggest some way in which we can do it. Otherwise, I shall certainly have to ask the House to come to a decision.
§ 5.27 p.m.
§ THE LORD CHANCELLOR
My Lords, if my noble friend Lord Chorley is in his place (as I think he is), may I first apologise to him for any seeming discourtesy when I had to leave the House. I was conscious of the fact that he had been addressing the House; but my right honourable friend the Prime Minister particularly wanted to see me on Rhodesia before leaving for Gibraltar. He is leaving shortly; and I had no real alternative.
§ LORD CHORLEY
My Lords, I am quite certain that my noble and learned friend would not have absented himself except for urgent reasons of State, and I quite appreciate that he had to go away for a time.
§ THE LORD CHANCELLOR
I am grateful to my noble friend. In the debate on this same Amendment at Committee stage I undertook to put to my right honourable friend the Minister of Transport the suggestion then made that these canals, which are the subject of current litigation against the Waterways Board, should be put into the list of cruising waterways in Part II of Schedule 12. This, of course, is the effect of the Amendment now proposed. I did not hold out much hope about the result, and my right honourable friend, after consideration, has confirmed what I said at the time; namely, that it would be destroying from the start the credibility of the Board's new maintenance duties in respect of the cruising waterways by including lengths that are not used by powered pleasure craft at present.
This Amendment seeks to preserve the present position about navigation rights and maintenance obligations in relation to these two canals. Its practical effect would be to leave the Board under an obligation, of uncertain extent, to maintain these two canals for navigation. It is unacceptable for the same reasons as the suggestion of my noble friend Lord St. Davids was unacceptable. These two canals, like most of the other canals which have not been included in the commercial or cruising networks, are to all intents 1086 and purposes not now physically navigable. A great deal of money could be spent on them; and even then they would not be navigable. If the Lower Peak Forest and the Ashton canals are to be made physically navigable in pursuance of some legal obligation the cost would have to be borne by the Exchequer.
The only reason, as I understand it, for singling out these two canals is the pending litigation. As I told your Lorddships in Committee, there must have been some misunderstanding about the position, because on the Committee stage of the Bill on one side it was being said that the action had been started to stop the Bill and on the other side it was being said that the Bill had been introduced to stop the action. Indeed, I remember the noble Earl, Lord Kinnoull, saying—I am not sure that it was correct—that my noble friend Lord St. Davids had said that the action had been going on for three years. This is a perfectly genuine confusion on both sides. The facts are now known and are clear.
Certain interests proposed this course to the Board but they replied, refusing to take the course, and this correspondence came to an end about the end of December, 1965. The next thing the Board heard was that after the Bill had been introduced a writ was issued. What they did not know, but what now they sully accept, is that in all that intervening lime a lot had been going on behind the scenes. The people concerned had been seeing lawyers, and collecting money, and they had been seeing who would or would not be plaintiffs to the action. But the fact is that the action had not started, arid they did not even apply for the Attorney General's fiat which has to precede the issue of a writ, until after the Bill had been introduced.
§ LORD GRIMSTON OF WESTBURY
My Lords, I am obliged to the noble and learned Lord the Lord Chancellor for giving way. In fact, the instructions were sent to the London agents from Manchester before the Bill was printed.
§ THE LORD CHANCELLOR
My Lords, I quite accept that; there was a lot going on behind the scenes between the parties and their solicitors, and so on. The fact remains that they did not either apply for the Attorney General's fiat or issue the writ until after the Bill had been introduced. We often consider 1087 Bills which affect existing rights; I suppose that more Bills affect existing rights than do not. In my submission, however, it is no justification for saying that a different course ought to be taken about a Bill merely because, after the introduction of the Bill, an action is started.
The Government see no reason why they should ask Parliament to make an exception in the case of these two canals simply because these actions have been started. The fact that individual bodies or persons may choose to litigate a matter is no reason why Parliament should not pass legislation which is in the public interest, even though it may, incidentally, affect a matter under litigation. If archaic Local Act navigation rights over the Board's system are to go and are to be replaced, where appropriate, by a modern obligation to maintain waterways in a suitable condition for the craft that use them now, it would surely be absurd to preserve the old regime in relation to these two unnavigable canals alone. This could only result in confusion to those who may fear that the enactment of Part VII will mean that there is no hope for the future of these two canals.
Noble Lords may derive comfort from the assurance which the Board have given to the Minister, that for a period of about three years from the coming into operation of Part VII of the Transport Bill they will not, without the Minister's consent, take any action in relation to these waterways which would have the effect of making restoration impossible. This undertaking should allow ample time for local authorities in the area to decide whether they wish to provide financial assistance for restoring these waterways in the exercise of their new powers under Clause 111. In addition, the Inland Waterways Amenity Advisory Council, to be established under Clause 108, will have every opportunity to consider their future. The immediate need is to create a modern legal structure for the waterways which would enable the Board to use to the best advantage the resources that are available. The House should therefore reject this Amendment which seeks to preserve the old régime for two lengths, totalling about 15 miles out of 2,000 miles of nationalised inland waterways.
My Lords, as to the present position, it is true that in June (I have here the 1088 original letters) the solicitors to the plaintiffs in the action wrote to the Minister and said:We are aware that you have stated that your Ministry is not directly concerned with the litigation as such and in these circumstances we are instructed to invite you to mediate.The Minister did not think it was really a matter for him to mediate between the parties to an action, one of whom was the Board; but the Board have been anxious throughout to see what could be done for these two canals. One of the difficulties is that only a quite small minority of the local authorities who are concerned have chosen to be plaintiffs in the action, so nothing really can be done simply with the plaintiffs in the action; because of course there are other local authorities, particularly I think Manchester, who are vitally concerned.
The Board are anxious to get them together, however, not in order to propound any particular solution to them, still less to try to force some solution down their throat, but to see what are their views. Therefore, having found what would be a convenient date they wrote in September saying:Naturally my Board would wish to consult fully with the local authorities. Indeed, the Board did hold a meeting with the local authorities at Bredbury in October, 1966, but recent circumstances have made further progress difficult.My Board feel strongly that in the impending new circumstances the time has now come when a fresh look should be taken at this hitherto intractable problem. My Chairman, Sir Frank Price, is arranging to visit the Ashton Canal on Wednesday. October 16, and in the afternoon he would very much like to hold an informal exploratory meeting with the local authorities directly concerned. The meeting is being arranged at the Town Hall, Manchester …
This invitation is accordingly being addressed to the county and local authorities through whose areas the Ashton Canal and the lower length of the Peak Forest Canal run."
My Lords, I only mention this. I do not suppose that any concluded agreement can be reached at this meeting. I mention this only because the correspondence has been referred to and it shows that the Board are not letting the grass grow under their feet. They are anxious to get together all the local authorities concerned, only a few of whom are parties to the action.
The Ashton Canal requires something like £200,000, I think, to restore it to 1089 cruising standards. This is a typical kind of remainder waterway which is virtually unnavigable now and where everybody concerned ought to get together to see whether local authorities and others are prepared to raise money to restore it for amenity purposes, or what is the best way of dealing with it. The structure of the Bill as a whole is sound in dividing our waterways into the 300 or 400 miles of commercial waterways, about 1,100 miles of cruising waterways, and leaving 300 or 400 miles, most of which are already statutorily closed to navigation, but looking at this last class one by one, and undertaking so to treat them that in another three years it will not be found that they are unnavigable because of any dereliction of duty which has taken place meanwhile. That, it is submitted, is a sound basis, and the mere fact that after the Bill was introduced this action was started is not a good reason for making an exception for these two canals. It is on those grounds that I hope that my noble friend Lord St. Davids will be prepared to withdraw the Amendment.
§ 5.36 p.m.
§ THE EARL OF KINNOULL
My Lords, in fact it was I who moved the Amendment. I am sorry that the noble and learned Lord the Lord Chancellor was not present when I briefly introduced it. I recognise that this is a very serious Amendment, and as I see the situation it is as follows. We have now established that the case of the Ashton Canal was a genuine case and not an attempt to frustrate or spike the Bill. We see now that this genuine case, if the Bill goes through in its present form, will become null and void. We therefore have to balance that against what will happen when the Bill goes through and the Waterways Board
§ meet and negotiate with the Association who, I understand, are willing to take over the canal.
§ My fear is that the Waterways Board, under the Bill, may well put this canal into the remainder section of the canals and thereby reduce their responsibilities, in effect, to public health and disposing of the canal in the most economic fashion. As I see it, the Board could say to the Association, "Either you take over this canal on our terms or we will dispose of it elsewhere." This Association is composed basically of authorities who are very keen to negotiate. Regarding the point about the Board not letting the grass grow under their feet, I do not think that this was so at all. I think that the other side has shown extreme anxiety and willingness to negotiate, and it is the Board who have shown reluctance.
§ I feel that there has been a great deal of support for this Amendment. As I said earlier, I think that there are three alternatives: this Amendment, Lord Grimston's Amendment and, third, that the Government should say they are either instructing or advising the Board to negotiate forthwith, or at least, if they could not do that, to dedicate this canal to the Association and offer some form of payment as regards the liabilities. For those reasons I feel that I cannot withdraw this Amendment and that we would wait to see what course your Lordships take.
§ 5.42 p.m.
§ On Question, Whether the said Amendment (No. 103) shall be agreed to?
§ Their LordshipŚ divided: Contents, 57; Not-Contents, 50.1091
|Airedale, L.||Cromartie, E.||Milverton, L.|
|Albemarle, E.||Daventry, V.||Monk Bretton, L.|
|Ampthill, L.||Elliot of Harwood, Bs.||Mottistone, L.|
|Auckland, L.||Falkland, V.||Mowbray and Stourton, L|
|Audley, Bs.||Falmouth, V.||Moyne, L.|
|Barnby, L.||Ferrier, L.||Napier and Ettrick, L.|
|Beaumont of Whitley, L.||Fisher, L.||Norwich, V.|
|Belstead, L.||Furness, V.||Nugent of Guildford, L.|
|Boston, L.||Goschen, V.||Nunburnholme, L.|
|Burton, L.||Gridley, L.||Rankeillour, L.|
|Carrington, L.||Grimston of Westbury, L. [Teller.]||Reading, M.|
|Chorley, L.||Rockley, L.|
|Colyton, L.||Henley, L.||Sackville, L.|
|Conesford, L.||Kinnoull, E.[Teller.]||St. Aldwyn, E.|
|Cork and Orrery, E.||Margadale, L.||St. Davids, V.|
|Cottesloe, L.||Massereene and Ferrard, V.||St. Helens, L.|
|St. Oswald, L.||Strange of Knokin, Bs.||Vivian, L.|
|Sempill, Ly.||Teviot, L.||Windlesham, L.|
|Sinclair of Cleeve, L.||Tweedsmuir, L.||Wolverton, L.|
|Addison, V.||Gardiner, L. (L. Chancellor.)||Pargiter, L.|
|Archibald, L.||Hall, V.||Peddie. L.|
|Balogh, L.||Headfort, M.||Phillips, Bs.|
|Beswick, L.||Henderson, L.||Plummer, Bs.|
|Bowles, L.||Hilton of Upton, L. [Teller.]||Ritchie-Calder, L.|
|Brockway, L.||Hirshfield, L.||Rusholme, L.|
|Burden, L.||Hughes, L.||Sainsbury, L.|
|Carron, L.||Iddesleigh, E.||Serota, Bs. [Teller.]|
|Chalfont, L.||Kennet, L.||Shackleton, L.|
|Champion, L.||Kirkwood, L.||Shepherd, L.|
|Collison, L.||Latham, L.||Silkin, L.|
|Delacourt-Smith, L.||Leatherland, L.||Strabolgi. L.|
|Donaldson of Kingsbridge, L.||Lindgren, L.||Summerskill, Bs.|
|Douglass of Cleveland, L.||McLeavy, L.||Wells-Pestell, L.|
|Evans of Hungershall, L.||Milner of Leeds, L.||Winterbottom, L.|
|Faringdon, L.||Mitchison, L.||Wootton of Abinger, Bs.|
|Fiske,L.||Morris of Kenwood, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ THE LORD CHANCELLOR
My Lords, I understand that your Lordships have disposed of Amendments Nos. 96 and 100 but have not yet discussed No. 104 and although I believe it is not opposed, as it is of some length I think I should explain it to your Lordships.
§ LORD NUGENT OF GUILDFORD
My Lords, I may be able to save the noble and learned Lord some time and trouble. The noble Lord, Lord Hughes, who is no longer with us, explained the purpose of this Amendment. It was accepted on this side as meeting substantially the case put forward on Committee, but we reserved the small but important point in Amendment 104A, which the noble Lord was intending to answer later, if he had not of necessity gone on somewhere else. It is not necessary to discuss Amendment No. 104 again.
§ 6.0 p.m.
§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Lord, Lord Nugent. I beg to move Amendment No. 104 formally.
After Clause 104, insert the following new clause.
§ Enforcement of maintenance duty.
§ ".—(1) If, on an application by any person under this section to the High Court or, in Scotland, the Court of Session, the court determines that there has been, in respect of a significant length of any waterway, a serious failure by the Waterways Board to discharge the duty imposed on them by— 1092
- (a) subsection (1) of section 104 of this Act; or
- (b) any order made under subsection (3) of that section,
§ (2) The fact that proceedings on an application under subsection (1) of this section (hereafter in this section referred to as 'enforcement proceedings') are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on the Board, shall not prevent the Minister from making an order in respect of that waterway or part under section 103(3) or 104(3) of this Act; but—
- (a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of the Board as it stood when the proceeding were instituted; and
- (b) the making of such an order shall in no case absolve the Board from complying with any requirement which is imposed by the court in any enforcement proceedings.
§ (3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on the Board in the proceedings, the Minister notifies the Board that he is considering the making of a relevant order and gives the court such a certificate as is mentioned in subsection (4) of this section—
- (a)the court shall not, so long as the order is pending, impose any requirement on the Board in those proceedings; and
- (b)if the order is made, the court shall, in determining in those proceedings whether there has been a failure by the Board to discharge their duty, have regard only to the duty (if any) to which the Board are subject in consequence of the making of the order.
§ (4) The said certificate is a certificate in writing to the effect that it appears to the Minister that the imposition of any requirement on the Board on the basis of their existing duty would result in their incurring substantial expense and that, having regard to their financial position and their duty under section 18 of the Act of 1962 and section 41 of this Act, it would be unreasonable for them to bear that expense without a grant or further grant under section 43 of this Act.
§ (5) In subsection (3) of this section "relevant order" means, in relation to any enforcement proceedings, an order under section 103(3) or 104(3) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Minister notifies the Board that he is considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Minister notifies the Board that it will not be made.
§ (6) As soon as may be after giving the Board any such notification as is mentioned in the last foregoing subsection, the Minister shall give notice thereof in the London Gazette or, if the waterway or the part of the waterway in question is situated in Scotland, the Edinburgh Gazette.
§ (7) For the purposes of this section enforcement proceedings shall be treated as instituted at the time when the summons beginning the proceedings is served on the Board."—(The Lord Chancellor.)
LORD NUGENT OF GUILDFORD moved, as an Amendment to the Amendment, Amendment No. 104A:
In subsection (4), line 4, after ("substantial") insert ("and exceptional")
§ The noble Lord said: My Lords, I beg to move Amendment No. 104A. I should like to thank the noble and learned Lord the Lord Chancellor for the great trouble he took, in the lengthy correspondence that we had during the Recess, eventually to evolve this new clause, which goes 99 per cent. of the way to meet the case that we discussed in Committee. I have put down this small Amendment which would have the effect of making subsection (4) of the new clause read so that the Minister's intervention would occur only where the imposition of the 1094 requirement would result in substantial "and exceptional" expenditure.
§ Perhaps I might briefly repeat the observations that I made before the noble and learned Lord had returned to the Woolsack. In the very nature of things, some of the repair and maintenance work on waterways involves substantial expense, and therefore a substantial expense would not of itself be exceptional It seemed to me, in the sense of the new clause and indeed of the discussion that we have had about this, that the Minister would issue a certificate only in exceptional circumstances where he thought it was necessary and proper, in order to protect the public purse. I hope, therefore, that this small Amendment will be acceptable. This seems to me to leave the Minister's safeguard just as effective, and at the same time to give the party who wishes to bring an action in these circumstances the protection that I think it would be the intention of the House to give it. I beg to move.
§ THE LORD CHANCELLOR
My Lords, the Government accept what they believe to be the idea behind this Amendment to the new clause; namely, that the special provision for a certificate by the Minister under subsection (4) of the new clause should apply only in the exceptional case. They do not intend it to be available for the case where the Board have just neglected their maintenance obligations for a number of years and have, in consequence, run up a sizeable bill for repair works. They believe, however, that the addition of the proposed words does not express this idea quite accurately. By adding "and exceptional" after "substantial", they feel that the words used will convey more the idea of "exceptionally substantial expenditure" than the idea of "substantial expenditure arising in exceptional circumstances", which they think is really intended. They think that a better way to meet the intention of this Amendment than adding the words proposed by the noble Lord, Lord Nugent is to add later on in the subsection a reference to the Board's duties under Section 18(2) of the Transport Act 1962, thus including these duties among the matters which the Minister is required to consider. This change has been made by the Government in the revised version of the new clause.
1095 Section 18(2) of the 1962 Act is the provision which requires the Board to charge to revenue in every year all charges which are proper to be made to revenue, including, in particular, proper provision for the depreciation or renewal of assets and proper allocations to general reserve. If the Minister is in this way specifically required to take the Board's duty under Section 18(2) of the Act of 1962 into account, there can be no question of his issuing a certificate under subsection (4) in cases where the expenditure in question is, or should be, covered by the Board's reserves for depreciation and renewal of assets. It is believed that the intention of the noble Lord, Lord Nugent, is better secured in this way than by adding the words which he has proposed. I hope that the noble Lord will see his way clear to withdrawing his Amendment.
It seems to me that it must be rather difficult for the noble Lord, Lord Nugent, to take all this in at very short notice, but if he will withdraw his Amendment at this stage, he can always put it down at a later stage of the Bill.
§ LORD NUGENT OF GUILDFORD
My Lords, I thank the noble Lord for his reply. It is true that my intention is to refer to exceptional circumstances and not to exceptionally expensive works, and it may be that Section 18 of the Act of 1962 would cover the point. Perhaps I might have the opportunity of studying the Act. I feel sure that it will be as the noble and learned Lord has told me, and in those circumstances I shall be happy to accept it. I still have my opportunity on Third Reading if I wish to avail myself of it. I beg leave to withdraw the Amendment to the Amendment.
§ Amendment to Amendment, by leave, withdrawn.
§ Clause 107 [Power of certain bodies to maintain or take over waterways and connected works]:
THE LORD CHANCELLOR moved Amendment No. 105:
Page 141, line 29, after ("(3)") insert ("Subject to subsection (5) of this section,")
§ The noble and learned Lord said: My Lords, with this Amendment I think it 1096 may be convenient to consider Amendments Nos. 106 and 108. On further consideration of this clause the Government consider that it is too narrowly drawn. It does not empower the Board to make agreements about the maintenance or transferring of any of their waterways with a combination of the bodies mentioned in subsection (2) of the clause. One can see that there may be situations where it would be desirable for this to happen, and indeed where a group of such bodies would be more interested than a single authority in assuming some responsibility for a waterway. These Amendments provide for such a situation. In addition, provision is made for a local authority to be a party to an agreement under Clause 107 even if no part of the waterway is situated in that authority's area, provided that persons residing in that area nave convenient access to it. These Amendments will go some way towards meeting the point of Amendment No. 109. The Amendments now include changes which have been suggested by the noble Earl, Lord Kinnoull, to whom the Government are grateful. I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, perhaps I might briefly intervene to point out, for the sake of the Record, that in the Marshalled List of Amendments for to-day Amendment No. 106 has been left out and Amendment No. 105A has come in; No. 108 has been dropped out and No. 108A has come in. It makes no difference to the substance but I say that just for the sake of the Record.
§ THE LORD CHANCELLOR
My Lords, this Amendment, No. 105A, is one of the Amendments that I have just discussed. I beg to move.
Page 141, line 31, leave out from ("unless") to second ("the") in line 36 and insert ("what is to be maintained or transferred—
(b)any river authority unless—
§ Amendment moved—
Page 142, line 7, at end insert—
("(5) The Board may make an agreement for maintenance or transfer under this section with two or more bodies jointly on such terms as to the sharing of expenses between those bodies and otherwise as those bodies may agree; and, notwithstanding subsection (3)(a)(i) or (b)(i)of this section (but without prejudice, in the case of a local authority, to subsection (3)(a)(ii) of this section), a local authority or river authority may be a party to such an agreement if part of what is to be maintained or transferred is situated in their area and the remainder in the area or areas of one or more other authorities (whether local authorities or river authorities) who arc also parties to the agreement.").—(The Lord Chancellor.)
§ Clause 110 [Power to extinguish statutory rights and obligations in respect of canals not belonging to Board]:
§ 6.1 p.m.
THE LORD CHANCELLOR moved Amendment No. 110:
Page 143, line 32, leave out from ("direct") to ("that") in line 39 and insert ("all or any of the following, that is to say—
§ The noble and learned Lord said: My Lords, I should like, if I may, to invite the House to consider also Amendment No. 112. We have come to the conclusion that Clause 110, which gave the Minister power to extinguish certain statutory rights and obligations in respect of non-nationalised waterways, was too inflexible as it stood. It offered the Minister only two courses: to make or not to make an order abolishing statutory navigation rights and maintenance obligations relating to navigation and it contained no provision corresponding to the Board's power under Clause 104(10) to authorise the use of certain nationalised waterways which would have been authorised by the statutory right abolished by 1098 the order. The Amendment to subsection (1) enables the Minister by order to abolish jointly or separately, in respect of canals not belonging to the Board, local Act navigation rights, local maintenance duties, and maintenance cuties imposed by the Regulation of Railways Act 1873. Thus the Minister may, if he considers it in the public interest, abolish the maintenance duties imposed by these enactments without abolishing navigation rights.
§ The Amendment to subsection (3) provides for conferring a power in respect of the non-nationalised waterways analogous to that provided for the nationalised waterways by Clause 104(10). It makes it possible for the Minister to empower any appropriate person to authorise any use of the canal in question which would have been authorised by a statutory navigation right abolished by the order. This means that those craft physically able to use a waterway may be authorised to do so, and will not have to fear legal proceedings for trespass by the owner of the bed and banks of the waterway or anyone else as a result of the abolition of the former statutory right of navigation. My Lords, I beg to move
THE LORD CHANCELLOR moved Amendment No. 111:
Page 144, line 5, after ("authority") insert ("a river authority").
§ The noble and learned Lord said: My Lords, the effect of this Amendment is to include a river authority among the persons who may be specified it, any order made under Clause 110 as being responsible for paying any compensation that may arise under subsection (4) of the clause. This is little more than a drafting Amendment. It is consequential upon an Amendment made to subsection (2) of this clause in another place, which included a river authority among the persons who might apply to the Minister for an order under this clause extinguishing statutory navigation rights or maintenance obligations relating to navigation on a non-nationalised canal. It follows that a river authority must also be included among those by whom compensation arising from such an order might be payable. The Association of River Authorities have 1099 agreed that this Amendment is appropriate. My Lords, I beg to move.
§ THE LORD CHANCELLOR
My Lords, this is the Amendment which was discussed under Amendment 110. I beg to move.
§ Amendment moved—
Page 144, line 7, at end insert—
("( ) may confer on a person specified in the order power to authorise any use of the canal which would have been authorised by a statutory right of navigation which by virtue of the order ceases to be exercisable as respects the canal;".)—(The Lord Chancellor.)
THE EARL OF KINNOULL moved Amendment No. 114A:
After Clause 110, to insert the following new clause:
§ Byelaws in respect of waterways owned or managed by certain bodies
§ ".—(1) The Minister may, on the application of any qualified body which owns or manages an inland waterway and after consultation with the relevant authority, by order confer on that body power to make byelaws in relation to that waterway for such purposes as may be specified in the Order.
§ (2) Byelaws made by virtue of an order under this section shall not have effect until confirmed by the Minister, and before applying to the Minister for the confirmation of any byelaws the body concerned shall take such steps as may be specified in the order for securing that persons affected by the bye-laws have an opportunity of making representations thereon to the Minister.
§ (3) If any person contravenes, or fails to comply with, any byelaws made by virtue of an order under this section he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £20, and if the contravention or failure to comply is continued after the conviction, to a fine not exceeding £5 for each day on which it is so continued.
§ (4) An order under this section may contain such supplementary provisions as the Minister thinks necessary or expedient.
§ (5) In this section—
§ "qualified body" means any navigation authority as defined in section 135(1) of the Water Resources Act 1963, a body mentioned in any of the paragraphs of section 107(2) of this Act (except paragraph (c) thereof) and any other body having public or charitable objects;
§ "relevant authority", in relation to any order, means any local authority or river authority (except any such authority which is itself the applicant for the order) in whose 1100 area the waterway in question is wholly or partly situated.
§ The noble Earl said: My Lords, I beg leave to move this Amendment standing in the name of the noble Viscount, Lord St. Davids, and myself. This is a new clause which covers the question of bylaws. It is the intention and purpose of this Amendment to give the Minister a power that he does not already have at present; namely, a power to confer on certain bodies owning and managing a waterway the power to make by-laws and confirm them, having first allowed effective persons to object. It also allows that offenders against the by-laws may be fined. At present certain navigation authorities do not have the power to make valid by-laws and so are unable legally to control speedboats and water skiers and noisy transistor radios. This Amendment would allow this position to be rectified. May I just say in passing that I should like to thank the Government for helping and advising in the drafting of this Amendment, for which we are grateful. My Lords, I beg to move.
§ THE LORD CHANCELLOR
My Lords, the Government wish to accept this Amendment because of the help it will offer to some small navigation authorities who find themselves without the power to control the use by the public of those navigations vested in them. Bylaw-making powers would give them the necessary means of control.
§ Clause 112 [Interpretation of Part VII]:
§ 6.7 p.m.
§ THE LORD CHANCELLOR moved Amendment No. 115:
Page 145, line 19, at end insert—
("() Nothing in section 104 or in any order under section 110 of this Act shall be construed as abrogating any rights of navigation which subsist otherwise than by virtue of the enactments referred to in subsections (7) and (8) of the said section 104 or subsection (1) of the said section 110; and in those subsections references to rights conferred by an enactment do not include references to rights which are merely confirmed by it and which if that enactment had not been passed, would subsist otherwise than by virtue of any such enactments as aforesaid.")
§ The noble and learned Lord said: My Lords, during the debates in Committee on Amendments to Clause 104, several noble Lords subscribed to the view that subsection (7) of the clause, considered in association with subsection (10), would remove the public's Common Law rights of navigation over those of the nationalised waterways which were subject to such rights. I could not agree that this was so and the Government adhered to the view that neither Clause 104(7), nor an order under Clause 110(1), which is the comparable provision applying to non-nationalised waterways, would affect Common Law rights of navigation, But, in order to allay noble Lords' fears and to place the matter beyond all doubt, the Government have drafted this additional provision. The provision declares that nothing in Clause 104 or Clause 110 is to be construed as abrogating any rights of navigation subsisting otherwise than by virtue of local Acts, even if these rights have been confirmed by a local Act. I hope it will be recognised that the Government have attempted to assist in moving this Amendment. My Lords, I beg to move.
§ THE EARL OF KINNOULL
My Lords, I should like to support this Amendment and to thank the Government for clarifying beyond doubt the question of Common Law rights.
Page 145, line 20, after ("110") insert ("Byelaws in respect of waterways owned or managed by certain bodies)").—(The Earl of Kinnoull.)
Page 145, line 28, leave out ("and 110") and insert ("110 and (Byelaws in respect of waterways owned or managed by certain bodies"),—(The Earl of Kinnoull.)
§ Schedule 13 [Orders relating to inland waterways]:
§ THE LORD CHANCELLOR
My Lords, perhaps I may be allowed to 1102 move Amendments 115D and 115E together. These are simply drafting Amendments. As the words "of this Act" occur in the first paragraph of Schedule 13 when Sections 104(3) and 110 are first quoted, they can be omitted when these sections are subsequently quoted in the Schedule.
Page 241, line 1, leave out ("of this Act").
Page 241, line 13, leave out ("of this Act").—(The Lord Chancellor.)
§ 6.10 p.m.
§ THE LORD CHANCELLOR moved Amendment No. 115F:
Page 241, line 36, at end insert—
("() The holding of an inquiry shall be obligatory—
§ The noble and learned Lord said: My Lords, during the debate in Committee on an Amendment put down by the noble Lord, Lord Nugent, which sought to ensure that wherever an objection to an order proposed under Clauses 103(3), 104(3) or 110 was not withdrawn, provided it was not frivolous, there should be a public inquiry, I undertook to see whether the Government could find a formula which was half way between giving the Minister complete discretion on whether or not to hold a public inquiry (as provided for in the Bill at present) and making an inquiry mandatory whenever an objection, not of a frivolous nature, was not withdrawn. The Government remain of the view that in principle the Minister must be free to judge 1103 whether a public inquiry is desirable in the public interest. But we accept that certain specific circumstances may arise in which it would clearly be right that an inquiry should be held. There is no reason to suppose that the Minister would ever arbitrarily refuse an inquiry in such circumstances, but we see no objection to providing the additional safeguard of making an inquiry mandatory in cases of this kind. Thus the Amendment limits the Minister's discretion so far as these cases are concerned.
§ The effect of the Amendment will be to place an obligation on the Minister to hold a public inquiry in cases where a change of category order under Clause 103(3) would down-grade a waterway, and in the case of any proposed order under Clause 104(3) (changing the maintenance standard of a waterway) or Clause 110 (extinguishing statutory rights of navigation and maintenance responsibilities relating to navigation on a non-nationalised canal), provided that—and this is an important limitation—there is a sustained objection from a local authority or river authority, or, where it appears to the Minister that the waterway in question was being used to a significant extent for navigation when notice of the proposed order was published, from any organisation appearing to the Minister to be representative of a substantial number of persons so using the waterway at that time. I believe that this Amendment provides the kind of halfway house we want. But I must emphasise that what is proposed in no way establishes a general principle that any objections from any source whatsoever should be able to compel the Minister to hold an inquiry. I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, I should like to thank the noble and learned Lord for moving this Amendment to Schedule 13 and for explaining its purpose. In my opinion it substantially meets the point which my noble friends and I made on the Committee stage in the Amendment we then moved. I think the Amendment achieves the right balance in differentiating the substantial objection from the frivolous, and I would advise noble Lords to accept it.
LORD HUGHES moved Amendment No. 130:
After Clause 130, insert the following new clause:
§ Duty to act in certain cases as body engaged in commercial enterprise
§ ".—(1) This section applies to the following authorities, namely, the Boards, the new authorities, and the Executive for any designated area within the meaning of section 9(1) of this Act.
§ (2) Every authority to whom this section applies who engage either directly or through a subsidiary, in any activities authorised by any of the provisions specified in subsection (3) of this section shall in carrying on those activities act as if they were a company engaged in a commercial enterprise or, as the case may be, shall exercise their control over that subsidiary so as to ensure that the subsidiary in carrying on those activities acts as a company so engaged.
§ (3) The provisions referred to in subsection (2) of this section are—
- (a) the following provisions of the Act of 1962, namely, section 6 (which relates to the provision of hotels) and subsections (2) to (4) of section 11 (which relate to certain development or acquisition of land);
- (b) the following provisions of this Act, namely, sections 2(1)(g)(ii) and (m), 10(l)(viii), (xix)(b) and (xxi), 25(e) and (f), 26(1)(e)(ii), (f) and (k), 48(1) to (4), 49(1) (so far as it relates to the provision of facilities at additional premises), and 49(2), (3) and (4)."
§ The noble Lord said: My Lords, this Amendment fulfils the Government undertaking during the Committee stage to consider tabling a further Amendment to meet a point underlying an Amendment tabled by the noble Lord, Lord Windlesham, which was withdrawn. It also goes some way towards meeting the points made by the noble Lord, Lord Drumalbyn, in proposing Amendments Nos. 58 and 60 to Clause 10. I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, may I thank the noble Lord, Lord Hughes, for this Amendment, which goes a long way to meet the point that we made on several different Amendments during the Committee stage concerning both Part II and Part III of the Bill. This does not cover the activities of Boards under the 1962 Act, but speaking for myself, I am satisfied that the disciplines of the financial objectives which are laid down for nationalised industries will be adequate to achieve what we are looking for, and this new clause will cover all their subsidiary 1105 trading activities. In requiring them to operate as if they were a company engaged in a commercial enterprise I feel that, on the one hand, this protects the taxpayers' interests and, on the other hand, protects other trading interests which might feel that they were being unfairly competed against.
§ LORD BEAUMONT OF WHITLEY
My Lords, this is a matter about which we also have felt strongly. It is extremely important that we should separate as much as possible those activities of nationalised industries which are rightly deserving of subsidy on social grounds and those which ought to be expected, both from their own point of view and from the point of view of their competitors, as the noble Lord, Lord Nugent of Guildford, said, to act commercially. We very much welcome this clause and we thank the Government for putting it in.
§ Clause 132 [Pensions]:
§ LORD HUGHES moved Amendment No. 131:
Page 178, line 32, at end insert ("and as if the reference in subsection (2)(a) of the said section 74 to a pension scheme in which employees of the Commission or a subsidiary of the Commission participated before the vesting date included a reference to a pension scheme in which employees of, or of a subsidiary of, the Railways Board or the Holding Company participated before any relevant transfer date such as is mentioned in subsection (3) of this section.
(1A) If in the case of any transfer such as is mentioned in subsection (3) of this section an order under the said section 74 as applied by this section is made before the transfer date which provides for the transfer on that date from the transferor to some other person of property, rights and liabilities of the transferor relating to any pensions or pension schemes—
§ The noble Lord said: My Lords, I should like to speak to Amendments Nos. 131, 132 and 133 at the same time. Clause 132 makes provision for the 1106 Freight Corporation, the Bus Company and the Scottish Group to pay pensions and to enter into pension obligations. The clause also enables the Minister (the Secretary of State in the case of the Scottish Group) to make orders about pensions for the employees of these new authorities, or for persons who have been in their employment, and for the establishment and administration of existing or future pension schemes. The clause further provides for the preservation of pensions rights for transferred staff. These objectives are substantially achieved by extending the application of Sections 73 and 74 of the Transport Act 1962 (which govern pension arrangements for the existing nationalised transport bodies) to the new authorities and by making provision for transferred staff not to cease to be eligible to participate in pension schemes in consequence of their transfers or in consequence of the transfer of the undertaking which employs them. I beg to move.
Page 178, line 36, after ("74") insert ("and in subsection (IA) of this section").— (Lard Hughes.)
Page 178, line 38, after ("74") insert ("and subsection (1A)").—(Lord Hughes.)
§ Clause 140 [Transfer and disposal of historical records and relics]:
§ 6.18 p.m.
§ LORD WINDLESHAM moved Amendment No. 134:
Page 189, line 12, at end insert the folk wing new subsection—
("(2) The Minister, in granting consent under subsection (1) of this section, shall have regard to the convenience of students and others interested in agreeing to the location of any permanent collection of historical records or relics.")
§ The noble Lord said: My Lords, Clause 140 concerns the transfer and disposal of historical records and transport relics. This clause was not debated 1107 at all in the House of Commons because it fell under the guillotine. Therefore it was not until the Committee stage in your Lordships' House on July23 that the proposals came under scrutiny. Some of your Lordships will remember that there was a long debate in the course of which the clause as drafted attracted very little support. Disquiet was expressed by, among others, the noble Marquess, Lord Salisbury, who unfortunately cannot be here to-day, speaking from his experience of many years as a member of the Royal Commission on Historical Manuscripts; the noble Lord, Lord Hurcomb, who has had a long interest in records and relics dating back to his days as Chairman of the British Transport Commission; and the noble Lord, Lord Robertson of Oakridge, one of the successors of the noble Lord, Lord Hurcomb, in the same office. Outside the House the Master of the Rolls, the British Records Association and the Society of Archivists all had doubts about whether this was the right way to treat a national collection of transport records of great importance to economic historians and others engaged in economic and social research. Faced with an overwhelming volume of informed opinion, the Government wisely undertook to look again at this clause and, if appropriate, to initiate discussions with those who were interested.
§ These discussions have taken place and some progress has been made, as we shall no doubt hear from the noble Lord, Lord Hughes, when he speaks to the next group of Amendments tabled by the Government. Some additional protection against the risk that the collections of transport records and relics might be broken up or gradually dispersed has been provided. I regret that the Government have not been able to go further. I regret in particular the fundamental flaw, to my mind, contained in this clause. This is the failure to distinguish between the relics and the records. Even after the discussions referred to earlier, the Government have continued to adhere to the mistaken concept that the two are in some way connected. They are not. They differ in origin, they differ in character and they differ in the use to which they are put. This is a point that I argued at some length in Committee and which has not 1108 yet been answered. But in practical terms the biggest difference between the Government and those who have questioned this clause is the location of the relics and the records.
§ Throughout the discussions that have taken place, the Government have not yielded one inch on their plan to transfer the existing contents of the Clapham Museum to York and to put in a separate building adjacent to the new museum, also at York, the historical records at present satisfactorily housed in central London. This is a matter on which I appreciate that the noble Lord, Lord Hughes, has strong, even at times passionate, personal feelings. We can understand, and applaud, his vigorous evangelism when he preaches that everything worth while in this country should not be concentrated in London.
§ But this line of argument, if you look back on the papers, has only recently been adopted by the Government as a justification for a decision that has already been taken. Originally it was said by the Ministry of Transport that no suitable site existed in London which could be converted for use as a transport museum within the limitations of the finance which could be realised from the sale of the Clapham site. Once the York motive power depot had been selected to house the relics, and once the idea had taken root that the records were in some way inseparably connected with the relics, from that time on nothing has shaken the Government's determination to adhere to York as a site for both the relics (that is, the objects), and the records (that is, the papers), which have been assembled for different purposes and in different ways.
§ So this evening, towards the end of the Report stage, Parliament has been presented with a fait accompli. The House of Commons never discussed this clause. Members of your Lordships' House have been unable to get satisfaction on this crucial point of location, particularly as far as the records are concerned. That is why we have put down a new Amendment. This Amendment was not discussed in its present form on Committee. It is intended to protect the future interests of students and scholars who we hope will be able to draw the maximum benefit from these historically important collections. I beg to move.1109
§ LORD ROBERTSON OF OAKRIDGE
My Lords, I should like to support very warmly the Amendment which has been proposed by the noble Lord, Lord Windlesham. He has put the case extremely clearly as regards the records. There can be small doubt among Members of this House that a collection of records that is to-day properly housed, conveniently housed, in London, would be better remaining in London than going to York or some other point in the Kingdom.
The case for the relics is perhaps rather different. I think it is true to say that people are rather forgetful of the past of our railways and of the achievements of our railway engineers. But people abroad are not so forgetful, and I find as I go about abroad—and I have occasion to go abroad often to see the railway administrations in foreign countries—a general recognition of the great achievements of British civil engineers in the development of railways both in this country and in their countries. These relics are, as it were, the monuments to the achievements of the railway engineers of the past, and it is a great pity to allow them to be forgotten and to treat the matter as of small importance. Transferring these relics to York may seem a suitable step, perhaps, to the noble Lord, Lord Hughes, who has, I understand, special feelings on this subject, but it is difficult, for me at all events, to understand that it can fulfil the purpose equally well as finding a site in London.
I admited during the debate on the Committee stage that I myself had a certain responsibility for the selection of the Clapham site for the Museum; that it was not a very good site and that in fact there was not a better site then available. But that is not true to-day. I am quite sure that there must be places on the British Railways in London where these relics could be housed just as well as in York and to far better purpose. I hope that this Amendment will he passed and that the Government will be able to assure us that it will apply both to the relics and the records.
§ 6.28 p.m.
§ LORD HUGHES
My Lords, we are, strictly, speaking only to Amendment No. 134, but in fact the discussion has ranged over the whole field of Amendments and I think it would probably save 1110 the time of your Lordships if I spoke also to the other Amendments which have been put down by the Government in this matter. When this subject was discussed in Committee, as the noble Lord, Lord Windlesham, has quite correctly said, it was the first time on which there had been any discussion of this clause, because the guillotine procedure stopped discussion of it in another place. There was a very wide range of disagreement on what the Government proposed, and some of that disagreement was not well founded, because it referred to fears of action which the Government had in fact no intention of taking. There wits the objection to transferring the records and the relics to York. There was the fear that the methods proposed would lead to the break-up of a collection, and perhaps to the needless dispersal and even destruction of many records which ought not to be dispersed or destroyed.
The meeting which I undertook to try to have arranged, and to which the noble Lord, Lord Windlesham, has referred, succeeded, I think, in reaching a satisfactory conclusion on the ability of the Government to allay fears about the needless dispersal of records ant the breaking up of recognised collections. Amendments Nos. 134B, C and D give effect to what was discussed at that meeting, the steps to safeguard that situation, and the position now, as your Lordships will see, is that the Secretary of State for Scotland should have first refusal of records housed in Scotland, the London Transport Board should have first refusal of records relating to their activities, and, thirdly, that the Secretary of State for Education and Science should haw first refusal of all other records. It is also proposed that any records not taken over by one or other Secretary of State or by the London Transport Board may be disposed of elsewhere only with the consent of the Minister of Transport.
This is in the clause as originally drafted. In addition, it is now proposed that the Minister should be given the duty to take appropriate advice from suitably qualified people before giving his consent in any particular case. This last suggestion arose from a proposal which was put at the meeting by the Coble Marquess, Lord Salisbury. So that I think on those points the Government 1111 have adequately and fully met the situation.
I have received a letter from the noble Lord, Lord Hurcomb, apologising that an engagement outside the House has prevented him from being here during the debate, and saying that he is now satisfied with what the Government are proposing, with the sole exception of taking the records to York. He also said, on the matter of the relics, on which in any case he had not had the same strength of feeling, that he would be completely content provided it was possible to give an assurance that there would be an adequate number of relics in London for mechanical engineers and for London boys and girls to see. Noble Lords who were present at that meeting will remember that in fact my honourable friend the Minister of State said that such an undertaking could be given, and it is desirable that I should repeat that undertaking here so that it is on the Record.
We therefore come to Amendment No. 134, which does not explicitly say that the records should not go to York but which I have no doubt has been tabled in the hope that it might make it difficult for them to go to York. The noble Lord, Lord Windlesham, said that I spoke with strong feeling on this matter of location. He then went on to say that the Government had been quite unable to satisfy the House about the desirability of transferring these records to York. I do not accept that statement. I am willing to accept that the Government have failed to satisfy some Members of your Lordships' House—it may even be a majority of the Members of your Lordships' House—that it is desirable to move these records to York. But I am quite satisfied that there are in your Lordships' House quite a number of Members who will be quite happy at the proposal that the records should go to York.
I am also quite satisfied that I am not putting forward a special feeling of my own (I think that was the term which the noble Lord, Lord Robertson of Oakridge, used) in furthering this view that there is merit in sometimes having these things outside London. There are many people beside myself outside London who share this view. I have no 1112 doubt that there are quite a number in York, and I am certain that there are many of them in Scotland. I still have wrapped round me regularly the failure of the previous Government to transfer the headquarters of the Forestry Commission to Scotland. It had nothing to do with this Government, but they get the blame for it.
This is another example of the sort of feeling which exists. It is not confined to Scotland. People in the North of England, in the West of England and in Wales all have this view. They feel that they have a right to have some sort of share in these special things and in these headquarters, and so on, which for so many years have just landed, not so much as a matter of choice but almost automatically, in London. Nobody thought of doing anything else about it.
§ LORD WINDLESHAM
My Lords, if I may intervene, briefly, I should like to make it quite clear, as I said in my speech moving the Amendment, that we recognise the validity of what the noble Lord is saying. There is no argument between us on this at all. But what we should like the noble Lord to do is to address his reply specifically towards the location of the transport records and relics and the arguments put forward, rather than debate the general proposition that not everything worthwhile should be centred on London. We are in complete agreement on that point.
§ LORD HUGHES
My Lords, one of the merits of debate is that one is supposed, at some time, to reply to points which are raised, and the noble Lord in fact raised the general question of my attitude and the attitude of the Government in this matter. Therefore, I think it only courteous that I should reply to the point which he made. What I am doing is to explain the transfer of the records to York as something which can properly be done within a general policy. The noble Lord went on to say that it was only quite late in the day that this argument had been advanced. But it has been a cardinal feature of the policy of this Government that they should seek every opportunity of making transfers out of London, and it is not necessary for the Government to reiterate its general policy on every occasion.
1113 Perhaps we were unduly simple in thinking that people understood what we said in this matter, and therefore, when something of this kind came along, it was not necessary to say that this was part of the general policy. But when there was so much expression of surprise at the very idea that these things should go out of London, it seemed reasonable to point out that this was being considered not only on the merits of having both records and relics at York but on the suitability of the building which could be made available and the saving of money which could ensue.
I agree that many noble Lords have expressed the view that there is no particular advantage in having the records and the relics together. The Government do not happen to agree with that point of view, but it is one which has been expressed, is obviously sincerely held and can quite properly be held.
The noble Lord, Lord Robertson of Oakridge, said—and he touched a sore point with me when he said it—that his was the responsibility for the Clapham Museum. Your Lordships will remember that I had not been saying very flattering things in Committee either about Clapham or who had decided to put the Museum there. Then the noble Lord embarrassed me greatly by getting up and pleading guilty. He said that it was not an ideal place, but that it was the best place that was available at the time. He went on to say, not that there are places in London which are better, but that there must be places in London which are better than Clapham. Maybe there are. What the Government say is that we are satisfied that York is better than Clapham, and that is why we wish to adhere to a decision that these exhibits should go there.
From time to time noble Lords opposite have pressed on the Government, quite rightly, the desirability of not spending money needlessly. Those who were at the meeting will recollect that, without taking into account any savings which would accrue from the staff (Sir David Follett did say that there would he staff savings in having them both together, because of the ability to use the same doorkeepers, the same cleaning staff and so on, so that you could have them in smaller numbers) there would be an ascertainable saving of some £8,000 a year.
1114 Having regard to the numbers of those who undertook visits—some 2,400 to London, 800 to York: I do not remember the Edinburgh figure (it was either 400 or 500)—to continue to hold these records in London is tantamount to asking the Government to spend an extra £2 or more for every person who visits the records. Frankly, we do not think it is worth it. We think that there is a fair chance that more people will visit the collection in York than visit the collection in London. The collection in York at the present time is a comparatively small one. Notwithstanding that, it attracted one third of the visitors who came to see the much more complete collection in London. It is at least a possibility; I put it no higher than that. If we have the collection in York—other than those specially appertaining to London Transport, which would remain in London, and those particularly applicable to Scotland, which may be in Edinburgh—there is a fair chance that York will get as many visitors as presently go to London and York put together.
In this Bill the obligation is laid on the railways to become a commercial proposition. The noble Lord, Lord Hurcomb, pointed out at the meeting that in his time at the British Transport Commission this undertaking to deal with the relics in the way that had been done was given by him and his collegues, but we reminded him that this was done when British Railways were making an operating profit of more than £30 million a year. What the railways can be expected to do when they are making profits of that order and what they can be expected to do when we are trying to remove every obstacle in the way of their becoming viable is a totally different thing. If I could give an analogy, it is like the owner of an historic building which he has preserved at his expense as long as he possibly can. The point comes when he says, "No matter how interested I am in this building, no matter how much I love it, I can no longer afford to undertake this expenditure with my depleted resources". So he ask s the National Trust to take it over and it is maintained at the expense of the State.
LORD ST. OSWALD
My Lords, I should like to know which National Trust home has ever been maintained as the cost of the State.
§ LORD HUGHES
My Lords, I am sorry; that was a mistake. It is maintained with assistance from the State. I ought not to have made that mistake because I have just spent three days going round National Trust properties in Scotland and I know how very much the success of maintaining them is due to the way in which the National Trust succeeds in raising monies privately. But in this case the cost is being transferred from the railways not to a body like the National Trust, which is going to raise a very large part of the money from private sources, but directly on to the taxpayer. It is reasonable, therefore, that when the taxpayers are taking the responsibility over from the railways they should do so in two ways. Nothing ought willingly to be done which would destroy the value of either the records or the relics—and I am quite certain that we have satisfied the House and those who were doubtful that this is not going to take place—and we should also be able to satisfy the House and the taxpayer that we are not needlessly spending the taxpayers' money by maintaining the records in a place where it is unduly expensive to do so, without there being any guarantee that it is to the advantage of students.
Finally we know that a very substantial part—I think it was over one half—of those who came to see the records in London came from places other than London. I do not know where they came from other than London, so I cannot argue that in all of these cases it would be more or equally convenient for them to go to York. Some of them may come from the West or from further South and London may be more convenient for these people, but from the figures which are there it can be said that at least some of those who have come to see the records in London will find it more convenient to go and see them in York. Some will find it equally convenient. And it will be able to be done at a saving to the taxpayer of something upwards of £8,000 a year. In these times this is not something which can be lightly turned down. I have not gone into what the Government regard as the technical defects of the Amendment, because we are not resting on the merits or demerits of Amendment No. 134; it is on the merits or demerits of taking the relics 1116 and the records to York. And to that position the Government are firmly resolved to adhere.
§ LORD SOMERS
My Lords, before the noble Lord sits down, may I ask him to say a word about the student aspect? There is in London in Exhibition Road perhaps the chief engineering college in the country, and for students who are taking up railway engineering or anything of that sort to have to go all the way to York to examine the old relics would be rather impractical. Does he think it would be possible to keep at least a nucleus of relics in London?
§ LORD HUGHES
My Lords, I think the noble Lord has overlooked the fact that the noble Lord, Lord Hurcomb, asked for an assurance that there would be an adequate number still available in London, and that assurance I was able to give. And that goes, I think, for "Puffing Billy" up to a fairly recent model of a steam locomotive.
§ LORD BEAUMONT OF WHITLEY
My Lords, there is one argument bearing on the actual points which the noble Lord, Lord Hughes, put forward, which he did not actually touch on, and that was that so often when we talk about moving things out of London—and I notice that although the Government claim to have moved a great deal out of London since they came to power, the one thing they have not moved out of London is any degree of power—there is too much of a tendency to throw crumbs to various cities here and there and say, "As long as we send it out to the Provinces it does not much matter." There was a lot to be said for getting hold of a city and trying to build it up in a particular way, and there was a lot to be said for keeping the relics and the records together. It may be that they do not completely necessarily go together, but if York can come to be known as a centre where you go for this purpose I think it is important and a very good thing—speaking as someone whose mother was a Pease and whose ancestors, therefore, had a great deal to do with early railway history in the North—that the centre should be in the North. I would rather see it in Darlington than York, but York will do.
§ LORD WINDLESHAM
My Lords, the most revealing argument in Lord Hughes's reply was when he expressed surprise that our Amendment did not prevent the transfer of the records to York. He looked surprised.
§ LORD WINDLESHAM
It does not seek to prevent their transfer. The noble Lord should look at the Amendment in a different light. What we have tried to do is to open our minds to what is the best course of action. The noble Lord should read the Amendment again. It says that:the Minister, in granting consent under subsection (1) of this section, shall have regard to the convenience of students and others interested in agreeing to the location of any permanent collection of historical records or relics.If, having done that, the Minister came to the conclusion that the best interests of the students and others with a special interest would be served by a decision in favour of York or London or anywhere else we should be quite satisfied. If this is already the position why does not the noble Lord accept the Amendment? His attitude is: the Government say this Amendment is unnecessary. They already know where the records should be located without considering the interests of the students and others. They know where the records are going to be—in York, because that is where they are going to put the relics in a Museum. That is what the Government's argument has been.
§ LORD WINDLESHAM
I find the noble Lord's reply disappointing. However, I do not want to protract this discussion since time is getting on. I fear we shall never agree on this point. Before moving on, perhaps we ought to record the views of the noble Lord, Lord Hurcomb. The noble Lord, Lord Hughes, read out his letter. Lord Hurcomb, it appears, still has not been able to reconcile himself with the policy that the historical records should be moved to York. One of the arguments that might have been in his mind is the inconvenience to the Railways Board headquarters in London when they want to refer to records if they are sited in York.
1118 This is a matter of regret. The Government have found themselves in an awkward position in having to justify an administrative decision which has already been taken, and the noble Lord Lord Hughes, has made the best of a bad case. I regret that, but having said so, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD HUGHES moved Amendment No. 134A:
Page 189, line 15, leave out from ("shall") to end of line 16 and insert ("under subsection (1) of this section be transferred to any person other than the Secretary of State for Scotland or otherwise disposed of")
§ The noble Lord said: My Lords, this is a drafting Amendment making it clear that the Secretary of State for Scotland's priority extends not only to "transfers to other persons" but also to "other disposals". In fact, it removes a possible ambiguity. I beg to move.
§ LORD WINDLESHAM
My Lards, it might help the noble Lord and save time if I say that the next three Amendments are all acceptable to us. They follow upon the meeting which was held at the Ministry of Transport; we regard them as small improvements to the Bill, and we welcome them.
§ LORD HUGHES
My Lords, in view of what the noble Lord has said, I beg to move Amendments Nos. 134B, 134C and 134D en bloc.
§ Amendments moved—
Page 189, line 24, leave out from beginning to ("relic") in line 25 and insert—
("(3) No record having special associations with the undertaking of the London Board, and no")
§ Page 189, line 29, leave out ("than authority") and insert ("the authority in question")
Page 189, line 44, at end insert—
("and, in the case of a record, before consenting to a transfer or disposal to which the foregoing provisions of this subsection apply, the Minister shall consult with such persons as the Minister and the Secretary of Slate for Education and Science acting jointly may consider
§ 6.55 p.m.
LORD NUGENT OF GUILDFORD moved Amendment No. 134E:
After Clause 145, to insert the following new clause:
§ Railways and Coastal Shipping Committee
§ ".—(1)The Minister shall establish a committee, to be known as the Railways and Coastal Shipping Committee, for the purpose of—
- (a)considering and from time to time reporting to the Minister on matters which affect the interests both of the Railways Board and of persons engaged in coastal shipping, and in particular any such matters which the Minister may refer to the committee for consideration; and
- (b) dealing with any complaint as to the charges for the carriage of goods by rail made or quoted by the Railways Board in competition with coastal shipping, being a complaint which is made to the committee, or made to the Minister and referred by him to the committee, and which is so made by or on behalf of a body appearing to the committee or, as the case may be, to the Minister to be representative of the interests of persons engaged in coastal shipping.
§ (2) The committee shall consist of—
- (a) such number as the Minister thinks fit of shipping members, that is to say, members representing the interests of persons engaged in coastal shipping, who shall be appointed by the Minister after consultation with the President of the Board of Trade and with such body or bodies as the Minister thinks fit, being a body or bodies appearing to the Minister to be representative of such persons; and
- (b) the like numbers of railway members, that is to say, members representing the Railways Board, who shall be nominated by the Railways Board and of whom at least one shall be a member of that Board.
§ (3) The committee shall appoint one of their members to be their chairman and, subject to subsection (4) of this section, their procedure, including their quorum, shall be such as they may determine.
§ (4) If, at the meeting at which the committee consider any such complaint as is mentioned in subsection (1)(b) of this section, a majority of those present and voting of each respectively of—
- (a) the shipping members; and
- (b) the railway members,
§ (5) The matters to be determined by the person appointed by the Minister under subsection (4) of this section in connection with a complaint are—
- (a) the cost to the Railways Board of providing the services in question;
- (b) the cost of providing corresponding services by coastal shipping; and
- (c) the likely effect on the Railways Board and on persons engaged in coastal shipping respectively of losing the business in question to the other of them, including any effect of the loss of that business on the charges of that Board or, as the case may be, such persons for other services by way of the carriage of goods,
§ (6) The person appointed to determine the matters aforesaid in connection with a complaint
- (a) may require the Railways Board and the complainant respectively to submit written evidence in support of their case; and
- (b) shall make any evidence so submitted by the Railways Board or by the complainant available to the other of them;
§ (7) After considering the report of the person appointed to determine the matters aforesaid in connection with any complaint, the Minister may give to the Railways Board any directions which he may consider appropriate in the circumstances of the case.
§ (8) In this section the expression 'coastal shipping' has the same meaning as in the Act of 1962."
§ The noble Lord said: My Lords this Amendment is a very satisfactory one. The new clause gives effect to discussions which have taken place during the last couple of months between the Chamber of Shipping, representing the coastal shipping interests, and the Ministry of Transport. I moved an Amendment on Committee stage which was aimed at continuing in existence the safeguard which the 1962 Act had preserved against unfair rate-cutting by the railways against coastal shipping. Subsequently there have been these discussions to try to see whether it was possible to find a compromise which would enable the Minister to intervene if it emerged that the Railways Board were introducing completely uneconomic charges in order to win traffic from coastal shipping and thereby cause unfair damage.
§ The new clause which I am now moving is the outcome of these discussions and 1121 I think represents a reasonable compromise. I know that my noble friend Lord Geddes is quite happy with it. He only regrets that as he is attending a conference on pollution of the sea in Rome he is unable to be here. He tells me that the new clause would be entirely acceptable to the Chamber of Shipping. If this Amendment is accepted in due course I will move Amendment No. 143B, which will have the effect of reversing the Amendment which was approved by your Lordships on the Committee stage, and at the same time make a minor amendment in the 1962 Act to fit in with this new clause. I beg to move.
§ LORD HUGHES
My Lords the Government are very pleased that it has been possible to reach agreement on this matter, and we are grateful to the noble Lord, Lord Nugent, for moving this Amendment.
§ Clause 154 [Interpretation—general]:
§ LORD HUGHES moved Amendments Nos. 135 to 137:
§ Page 199, line 23, leave out ("hover vehicle") and insert ("hovercraft")
§ Page 201, line 22, leave out ("hover vehicle") and insert ("a hovercraft")
§ The noble Lord said: My Lords, I move these three Amendments together as they are all consequential on the passing of the Hovercraft Act 1968. On the first of these Amendments with which I was concerned I was asked a question by the noble Lord, Lord Kings Norton. He referred to the fact that at present what we describe as hovercraft or hover vehicles are vehicles maintained on a cushion of air, but that it is possible that other means of propelling vehicles and separating them from the land or possibly the rails over which they were moving might be other than by air, that therefore the definition of a "hovercraft" was not complete and that it might be better to adhere to the use of "hover vehicles" which could conceivably cover those things about which there is speculation at the moment and about which some research is taking place but whose results are still some little time away.1122
The Bill as at present drafted defines a hover vehicle as a vehicle designed to be supported on a cushion of air. This is in the Hovercraft Act 1968, and as Parliament has accepted a definition of "hovercraft" as
a vehicle which is designed to be supported when in motion wholly or partly by air expelled from the vehicle to form a cushion of which the boundaries include the ground, water or other surface"—
I am not sure what "other surface" there can be other than the ground or water—
beneath the vehicle",
it makes for consistency to use the same definition in the Transport Bill. This series of Amendments is therefore no more than a technical adjustment.
§ The noble Lord, Lord Kings Norton, raised the more fundamental question whether this definition is wide enough in view of the possibility that other vehicles may be developed which are supported above the ground by means other than a cushion of air, for example by magnetic forces and whether the Railways Board, the Freight Corporation and P.T.E.s might wish to use such a vehicle if and when it is developed. Although such vehicles are undoubtedly in the realms of scientific possibility, they are very much in the early stages of research and practical development is a long way off. Therefore, the Government do not think it appropriate to try to extend the definition to include such vehicles at this stage when there are so many unknown factors. It is, in fact, believed that by the time such an alternative method of support was evolved there would perhaps not be any desire to call it a "hovercraft". By that time the name "hovercraft" would have attached quite firmly to a vehicle supported on a cushion of air, and some other quite distinctive name would be found for the new type of vehicle. In any event, I have no doubt that by the time it comes into operation—if it does—Parliament may find time to deal with it. But the time is not now. I beg to move.
§ LORD KINGS NORTON
My Lords, I am grateful to the noble Lord, Lord Hughes, for returning to the point which I raised yesterday. I cannot say that I was particularly optimistic that he would accept my argument, impeccable in logic though I am convinced it is. I may say that I feel as passionately as he does 1123 bout semantics and railway relics. I do not propose to press the matter much further this evening, but just in case the Government have second or third thoughts I should like to leave on the Record a definition of "hover vehicle", or whatever other name is given to the genus which includes the species hovercraft. It would be as follows:A 'hover vehicle' means a vehicle designed to be sustained in the air when in operation by means wholly or partly depending upon its proximity to a surface beneathSuch a definition would not be inconsistent with the Hovercraft Act. Its adoption would mean that when these other vehicles which the noble Lord, Lord Hughes, thinks are so distant but which I can assure him are not—come into existence we shall not have to modify the Bill which we are now discussing. The hovercraft, which the British Standards Institution and the United States authorities prefer to call an "air cushion vehicle" at the present time is just a species of hover vehicle, so there would not have been any inconsistency. I hope that later on it will be seen possible to bring this wider definition into our legislation, because I am quite sure that it will be necessary.
§ LORD WINDLESHAM
It is interesting that this question should have come up right at the end of a whole list of Amendments which have been concerned with hover vehicles and hovercraft, since it is clearly a point of some importance. The Bill was introduced into Parliament ten months ago. May we ask the noble Lord whether there was ever any consultation with the N.R.D.C., or any other qualified body, when the Bill was drawn up on the subject of hover vehicles or hovercraft? Or does this come as a bolt from the blue—
§ LORD HUGHES
My Lords, it arose only because of the passing of the Hovercraft Act a comparatively short time ago. The noble Lord, Lord Kings Norton, is the only Member of your Lordships' House, so far as I know, who has given any thought to this particular aspect of the matter. But I have no doubt, from the ease and the speed with which my advisers were able to furnish me with the information to reply to him, that they were possessed of the information, because 1124 I had the information within a short time of the noble Lord's asking for it. But this is the first opportunity I have had to give him the answer. It would have been wrong to answer his question about hovercraft in the middle of an Amendment which had nothing to do with that subject. This is the first time one of these Amendments has come up again, and I promised the noble Lord. Lord Kings Norton, that I would reply at the first opportunity.
§ Clause 157 [Rating]:
§ 7.5 p.m.
§ LORD NUGENT OF GUILDFORD
My Lords, I beg to move Amendments Nos. 138, 139 and 140. They are all drafting Amendments, and it may be for the convenience of the House to take them together. I beg to move.
Page 205, line 4, leave out ("section 47A or").
Page 206, line 4, leave out ("section 47A or").
Page 206, line 21, leave out ("section 47A or").—(Lord Nugent of Guildford.)
§ Schedule 18 [Repeals]:
§ LORD NUGENT OF GUILDFORD
My Lords, Amendment No. 143A is consequential on the new clause, Amendment No. 134E. I beg to move.
Page 268, leave out lines 22-25.—(Lord Nugent of Guildford.)
§ LORD NUGENT OF GUILDFORD moved Amendment No. 143B:
Page 268, line 32, leave out ("42(2)") and insert ("and 42(2).
In section 53, paragraph (a) of subsection (1), subsection (2), and in subsection (4) the words 'paragraph (b) of subsection (2) or' Sections").
§ The noble Lord said: My Lords, I beg to move Amendment No. 143B. It has the effect of reversing the decision taken during the Committee stage, which has now been changed by the new clause. I beg to move.1125
Page 268, leave out lines 34 to 36.—(Lord Nugent of Guildford.)
Page 269, line 3, at end insert ("and, in section 1(5), the words from 'but' onwards.") —(Lord Hughes.)
§ Amendment moved—
§ Page 271, line 44, at end insert—
|("1968 c. 44.||The Finance Act 1968.||As from 1st January 1969, section 2(1)(b)")|
§ —(Lord Hughes.)