HL Deb 23 October 1968 vol 296 cc1513-22

[No. 84]

After Clause 104, 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:

Provided that on the determination of those proceedings this section shall cease to have effect save for the purpose of enforcing compliance with any order made in the proceedings."

The Commons disagreed to this Amendment for the following Reason:

[No. 85]

Because the fact that litigation under the existing law is in progress cannot be allowed to defeat the object of Parliament in amending that law.

4.11 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that this House doth not insist on its Amendment No. 82 to which the Commons have disagreed; and perhaps I may be at liberty to deal at the same time with Amendment No. 84. I think that we water ways enthusiasts have to consider that we have really done very well. Your Lordships made 34 Amendments to Part VII of the Bill, and 32 of them have been accepted by the other place; so only two remain. The first, No. 82, was fully considered by the other place for something like, I think, an hour and a half, and there were many speakers. The arguments, inevitably, were very much the same as they were here.

It was said, of course, that subsection (a) has no effect at all. I think everybody agreed that that is right, and the whole question was whether a statutory duty should be imposed on the Board to act reasonably. As here, on the one side it was said that if you are going to act reasonably there is no harm in making it a statutory duty, so that if you do not then writs can be taken out against you and you can be brought to the court; and on the other side it was said that the Boards were in the same position, that if the clause was passed it would be directly in conflict with Section 43 of the Transport Act 1962; that nobody would know what the effect of that was.

I was glad to read that it was again agreed by everybody that nobody could point to a single case in which the Board, acting under Section 43 in the last six years, had acted otherwise than reasonably. I remember the noble Lord, Lord Airedale, saying last time that he did not agree with the Act of 1962 to which I replied privately, and I hope courteously, "You were here then and I was not, so it is not my fault". But, of course, the argument of the Conservative Government then was, "If you want these Boards"—and of course the section applied to all the Boards—" to pay, or to pay as nearly as they can, they must be commercially free ". That argument may be right or it may be wrong, but there is no case at all for separating out the Boards and saying, "The others shall be commercially free, but this Board, and this Board alone, is going to be able to be taken to court". If, for instance, the Railways Board declines to provide a special train because previously, with a particular football club, a train has come back cut to ribbons, it is a matter of commercial judgment. Why not say—. there is a case for saying—that all these Boards should be under a statutory duty to act reasonably and that anybody at any time can take them to court or the Transport Tribunal? But it cannot be right that it should apply to this Board only and after a very long discussion the other place rejected this Amendment.

Then we have heard a great deal about these two special canals. I do not want to go into this matter again. The Commons have decided as their Reason that Parliament cannot be stopped from altering the law, if it ought to be altered, by somebody issuing a writ after a Bill has been introduced. In fact, it cannot be prevented from doing so even if there is a pending action. I remember a case a few years ago where, at the date of the issue of a writ, a landlord was undoubtedly entitled to possession. Then came the Rent Act, which affected him. By the time it came to the trial, he was no longer so entitled. But that is a case where the writ had already been issued before the Bill was introduced. This is a case in which, as your Lordships will remember, the writ was not issued until after.

I think I should perhaps just tell your Lordships what appeared in the other place; namely, that there has now been a meeting between the Chairman of the Board and the various local authorities interested in this particular matter, and it appears that three out of four of the riparian local authorities do not want this canal to be restored, including the big ones, Manchester and the Lancashire County Council. However, that is a matter which no doubt will be considered by everybody, because of course we all want, if we can, to restore any canals which can be restored with the money which we have. But one comes back in the end, as the other place evidently felt—because perhaps they are more directly concerned with finance than we are that there is only £400,000 for these 1,100 miles of amenity waterways, and to spend about £200,000 on restoring one canal would inevitably mean that there would not be money for the job which this Bill does. I hope, therefore, that on these grounds, this House will not insist on either Amendment No. 82 or Amendment No. 84.

Moved, That this House doth not insist on its Amendments, Nos. 82 and 84, to which the Commons have disagreed.—(The Lord Chancellor.)

LORD CONESFORD

My Lords, I will confine my remarks to a few words on Amendment No. 82. I do so because my noble friend Lord Kinnoull, whose Amendment this is, is not present. On October 14 he argued the case for this Amendment so ably. He was supported from both sides of the House, and the Amendment was carried by 79 votes to 56. Let me say at once to the noble and learned Lord on the Woolsack that on this Part of the Bill, on which alone I have ventured to intervene, I am not going to repeat any of the former arguments. The important thing, of course very relevant to-day, was that when we argued this very important matter in this I House the Commons had not devoted much time or consideration to this particular subject. They have now had a debate on this matter, on Monday of this week, and the debate occupies no fewer than 25 columns of the Commons Hansard. In those circumstances it has clearly been discussed even more in the other House than it was here.

While not altering any of my views which I ventured to express in answer to the Lord Chancellor on previous occasions, while holding all the views I then held, clearly I should be willing to bow in a case of this kind to the House of Commons once they had fully discussed the matter. I must observe, however, that I think that anybody who reads those 25 columns of last Monday's Commons Hansard will find that the argument in favour of the Amendment, on which we are now not going to insist, was put forward both from the Liberal Benches and from the Conservative Benches, and by laymen and lawyers alike. Therefore, in explaining, in the absence of my noble friend whose Amendment it is, that I am sure we should not wish to insist on our Amendment, we remain of the same opinion.

4.19 p.m.

VISCOUNT ST. DAVIDS

My Lords, I am a little surprised that Amendments No. 82 and No. 84 should be taken together because I conceive them to be two totally different subjects. If I may therefore be permitted to make two short speeches following one another on the two different Amendments, I should be grateful.

TILE LORD CHANCELLOR

My Lords, the noble Viscount is entitled to object to their being taken together. If he wishes, I will take them separately.

VISCOUNT ST. DAVIDS

My Lords, now that we have got as far as this I think it would be better if we continued in the same way, and I hope that I may be allowed to make a speech in two parts. This may be more convenient to the House. On Amendment No. 82, I do not wish to say a single word about what I have said before, because the House has heard it all and it appears again in the Commons Hansard of yesterday. On the arguments in favour of the Commons' rejecting our Amendment, I can only say that there continue to be none.

When we passed this Amendment in this House the noble and learned Lord made a speech which I believe to have been totally irrelevant to the Amendment. I am reinforced in this belief because some part, but not the whole, of the noble and learned Lord's speech was repeated by the Government spokes man in the Commons, with the astonishing result that he was three times interrupted by Mr. Speaker, who asked him to keep to the point. I think this is a record. I only hope that it is an all-time record and that such a thing will not occur again. In fact, no argument was put by the Government spokesman yesterday in another place, nor has been put here to-day—

LORD CONESFORD

My Lords, may I interrupt the noble Viscount for a moment? He keeps saying "yesterday"; it was in fact Monday.

VISCOUNT ST. DAVIDS

My Lords, I accept the correction and I apologise for the mistake. But, to make things worse, no reference whatever has been made by the Government to the rights of navigation of cargo-carrying craft—rights of navigation which they have repeatedly agreed exist, or will exist until this Bill becomes law. Because of that I cannot understand the arguments adduced in the Commons, which said that the remainder creates a duty of uncertain extent. It does not create anything. The duty has been there all the time; indeed, it has been there for a hundred years. If its extent is uncertain after a hundred years I cannot conceive how long; the uncertainty is deemed to continue. This seems to me to be nonsense; nevertheless I suppose we must accept this nonsense. I shall accept it for the simple reason that I do not think this House should go against the Commons, but for no other reason whatever.

Only two new points emerged in the Commons debate. One was a request from the Government spokesman that all cases where the Board were unreasonable or where this clause would haw had value should be brought to his attention, and I promise my noble friends that I shall do my best to carry out that request. Indeed I have cases which I could quote now, but I feel that I should not weary your Lordships with a long speech, which is in fact why those cases have not been introduced before. The other point that emerged in the Commons and in which I have great interest was a promise in that debate by the Conservative spokesman that should there ever be such a thing again as a Conservative Government they will see fit to re-enact this right of navigation. I must tell the noble Lords on the other side of the House that I shall do my best to see that they carry out this promise should such an event ever occur again.

To refer to the second set of Amendments, I feel sure it was accidental but there was in fact a slight error or the part of the noble and learned Lord. He said that three out of the four local governments concerned in this canal were opposed to the reopening of the canal. That was three out of four of the large authorities which border the canal but which as a matter of fact are not responsible for the expense of filling at in.

All the other authorities—I forget the exact number, but it is a considerable number—who are engaged in this matter were not only not present at the meeting but were actually excluded from the meeting.

I quite understand why these three local authorities were anxious about the canal; they are anxious about children being drowned. I know a great deal about children being drowned in a canal because, as this House must know, when I am not present in this House I spend my time putting children into small boats on a canal, and I know perfectly well that it is the dead canal that is not used for navigation and is not filled in and made into dry land which kills children. If you wish not to kill children in a canal you must do one of two things; either make that canal navigable, active and full of boats with people in them who will pull the children out of the water if they fall in; or else you must fill in the canal and make it dry land. But that costs £100,000 a mile. It is noticeable that the local authorities which did not want the canal restored to navigation were also not the ones who would have to pay £100,000 a mile to fill it in, whereas the ones upon whom that enormous expense would fall were rather differently minded.

This is the point that we really must get into our heads in regard to these waterways, both in this case and in subsequent ones, if we are to save the lives of children in derelict canals; we must either make those canals active or else fill them in. What we are doing under this clause is simply creating chaos and losing lives. We have put up this clause, we have passed it through this House, we have demonstrated that this House is determined that something must be done about these waterways, and now I think we must accept that our Amendment should be rejected.

LORD GRIMSTON of WESTBURY

My Lords, I cannot let this pass without a short comment, particularly in view of what the noble and learned Lord said in moving the rejection of the Amendment. I was sorry that in another place this question of the date of the writ was brought up again, because I thought we had resolved it here as being due to a misunderstanding, and I believe that was accepted by the noble and learned Lord.

In regard to the meeting, to which he referred, which took place the other day between certain authorities and the British Waterways Board, I want to confirm what the noble Viscount has just said; that this meeting was most unrepresentative of those who are interested in this particular problem. As the noble and learned Lord knows, there were thirty relators to the proposed action, but only three of them were invited to the meeting. So whatever report the Government received from this meeting is most unrepresentative. There is considerable feeling in regard to this point, and if evidence is wanted about that, it is surely the fact that this Amendment in another place was defeated by a majority of only twenty-nine when there was a three-line Government Whip out. All I am asking is that too much reliance should not be placed upon the report that has been received from this meeting. We know we cannot take the matter any further, but I wish the Government to be under no misapprehension that the report from this meeting will reflect the true position.

LORD BESWICK

My Lords, the noble Lord should not speak with such apparent authority about the number of lines on the Whips that go out from this side of the House. There were not three lines on that Whip.

LORD GRIMSTON OF WESTBURY

My Lords, I accept that. I saw it reported in the Press that there was a three-line Government Whip. In any case, 29 is not a particularly good majority.

4.29 p.m.

LORD HURCOMB

My Lords, I hesitate to speak on this subject and I will not delay your Lordships for more than a moment. I am bound to say that I cannot see anything unreasonable in the Government advising the House not to adhere to the Amendment which was carried largely due to the eloquence of the noble Lord, Lord Conesford. In 1947 we were still under 19th century influences and the Transport Commission, of which I was Chairman, was made subject to all sorts of 19th century restrictions, more particularly in regard to its railways and its canals. It was told that it must not discriminate in this direction, it must give generality to its tariffs, and equality of treatment to everybody, whatever might be the commercial competitions or pressures upon it. All those 19th century maxims, which no doubt in those times were very sound and necessary, were still to apply. But in 1963 and 1962 there was, on a change of Government, a wholesale sweeping aside of all this kind of restriction, and I cannot, for the life of me, see why in the particular case of the canals particular restrictions of this kind should still be held to be necessary.

There is one other consideration and it is a much more general one. When public authorities are set up and when experienced administrators or able businessmen are asked to take the chairmanship of their boards or to serve upon them, they are not going to be attracted by the prospect of having Parliament always wagging its finger at them and saying, "You must not behave improperly there", and, "You must not behave unfairly there", "You must not discriminate in this case or treat somebody unjustly in another", and, "If anybody has a fancied grievance he must be entitled under the particular Act under which you are set up to take you to some court or tribunal". It seems to me quite inconsistent with the action all Parties in recent years have adopted, to try to impose in this set of circumstances particular obligations on this particular Board. I hope, therefore, that your Lordships will not feel disposed to insist upon the Amendment.

4.32 p.m.

LORD CHORLEY

My Lords, I should like to say a word about No. 84. I agree with my noble friend Lord St. Davids that there is no real relationship between these two. The practical side of this subject has been very effectively dealt with already by two of your Lordships. The result, of course, will be that this action will be stopped. My objection to it is that, in spite of what the noble and learned Lord on the Woolsack has said, this is completely contrary to all the traditions of English law. I think it is a very serious thing. It has been happening very occasionally over the last years, and those of us who have some veneration for the long traditions of English law have been worried about in.

This, I think, is a particularly bad example of it, and the reasons given for the Commons disagreement are completely illogical. If this Amendment had become part of the law, it would not have prevented this Bill, when it became an Act, from carrying through the objects of Parliament in amending the law. All that it would have done would be to safeguard a right which had accrued and which a mere technicality had prevented from already making some progress in its journey through the courts. Time after time in the history of our legislation a position of that sort has in fact been safeguarded. This Amendment was an attempt to safeguard that sort of position, in the best traditions, I should have said, of English law, and it is most unfortunate that the Commons should have seen fit to break it up in this way. I do not propose to ask your Lordships to dissent from the Commons decision this point, but it seems to me to be quite contrary to the best traditions of the English legal system.

THE LORD CHANCELLOR

My Lords, I do not propose to reply, except to say that I am sure the Board will not attach any exaggerated importance to the meeting. To clarify the matter, I am told that three out of the only four authorities through whose areas the Ashton Canal runs, including Manchester Corporation, told the Board quite categorically that they did not want the Ashton Canal retained as a navigation, and the Board have reason to believe that the fourth council concerned may hold the same view. I do not think it would be useful for me to argue the matter any further.

On Question, Motion agreed to.