DRAINAGE (NORTHERN IRELAND) ORDER 1972

HL Deb 12 December 1972 vol 337 cc564-77

7.13 p.m.

LORD WINDLESHAM rose to move, That the Draft Drainage (Northern Ireland) Order 1972, laid before the House on November 28, be approved. The noble Lord said: My Lords, I beg to move the fifth and final Order standing in my name on the Order Paper this evening. The background to this Order is that two Bills, described as the Drainage Bill and the Lough Erne Drainage and Navigation Bill, were to have been presented to the Northern Ireland Parliament during April of this year. However, following Prorogation, these two proposed Bills have now been combined into the Draft Drainage (Northern Ireland) Order which is before this House to-day.

In the light of the reorganisation of local government, it was decided that the Ministry of Agriculture, which is already the existing drainage authority for arterial drainage, should take over the urban drainage functions now exercised by the local authorities. While the principal purpose of this Order is to make consequential changes to the current drainage legislation, the opportunity has been taken to consolidate the legislative codes dealing with drainage, Erne drainage and navigation, and urban drainage into one Order in place of the 13 current Acts and a number of amending enactments.

At this stage I had better explain the present division of responsibility for drainage in Northern Ireland. Under the Drainage Act (Northern Ireland) 1947 and the Drainage Act (Northern Ireland) 1964, the Ministry of Agriculture was made the drainage authority for all main watercourses and for minor rural watercourses. A drainage council, which includes representatives of the local authorities and agricultural interests, was also set up to determine which watercourses were to be taken over by the Ministry for drainage purposes and generally to advise the Ministry on drainage policy. In 1957 the Urban Drainage Act was introduced to provide powers for local authorities in Northern Ireland to undertake improvement work on watercourses in urban areas and the subsequent maintenance of these watercourses. In the future, as laid down in Article 6, the Ministry of Agriculture for Northern Ireland is to be the drainage authority for the whole Province. Therefore there will be a unified responsibility covering all drainage, urban as well as rural.

This change of policy consequent on the reorganisation of local government next year has meant an alteration in the financing arrangements for drainage works. Under the 1947 Drainage Act the county councils and county borough, councils were to contribute 50 per cent, of the expenses incurred by the Ministry in carrying out work on main watercourses. Expenditure incurred under the 1964 Drainage Act on minor watercourses was to be met in the ratio of two-thirds by the Ministry and one-third by the county councils, while the local authorities carrying out urban drainage schemes under the 1957 Urban Drainage Act could obtain grant-aid up to a maximum of 50 per cent, of the cost of such schemes. As it is not intended that part of the regional rate should be specifically allocated to pay for individual services, Article 42 of this Order provides for drainage work to be financed mainly by monies voted for this purpose from the Exchequer, which will receive the product of the regional rate.

One new provision to which I should particularly like to draw your Lordships' attention is contained in Article 8. At present, neither the Ministry of Agriculture not the local authorities have legislative authority to undertake emergency works when there is a threat of flooding, and therefore Article 8 empowers the Ministry to undertake such works. Since it is intended under this Order to deal with urban drainage in the same fashion as with rural drainage, it was decided that some additional safeguard was required to deal quickly with flooding to urban properties where both homes and employment may be threatened.

The final new provision to which I wish to draw attention is contained in Schedule 7 and concerns navigation on Lough Erne in County Fermanagh. There is at present a public right of navigation on Lough Erne, but maintenance of the navigation is not the responsibility of any public body. As owner of the bed and the soil of the Lough, and holder of all shooting and fishing rights, the Ministry is already involved in the promotion of the 58 square miles of lakes as a tourist attraction. Paragraph 12 of Schedule 7 enables the Ministry of Agriculture to carry out navigation works on the River Erne and the tributary rivers, and these works include the dredging and maintenance of channels and the provision and maintenance of navigation aids.

The Ministry is further empowered, by paragraph 13, to make by-laws, subject to the Merchant Shipping Acts, to regulate the use of the loughs and their tributaries, and these regulations may cover, for example, the size of the boat and the nature of safety equipment which it must carry. With navigational use of the loughs already increasing rapidly, it is worth making sure that a statutory navigation authority should guide the future development of boating on the loughs. In the exercise of this responsibility there will be close consultation between the Ministry and the Northern Ireland Tourist Board, referred to in an earlier Order, as well as with the local district councils and other interested parties. I beg to move.

Moved, That the Draft Drainage (Northern Ireland) Order 1972, laid before the House on November 28, be approved.—(Lord Windlesham.)

LORD GARNSWORTHY

My Lords, this Order is a pretty tremendous affair, containing, as it does, 45 Articles and 10 Schedules. I have no doubt at all that if it were a Bill before this House we should spend a great deal of time going through it very thoroughly indeed. As it is, we have to treat it this evening as Second Reading, Committee stage, Report stage, Third Reading—the lot! And it would seem appropriate, since the other House has as yet had no opportunity of considering the Order, that we should look at this one in some detail.

It would be an under-statement to say that this Order on drainage is hardly the most controversial measure on Northern Ireland that Westminster has considered since it assumed direct responsibility for the Province in March of this year. However, in the at least temporary absence of a Legislative Assembly for Northern Ireland it is important, and perhaps imperative, that we give serious attention to this measure. This week a total of 8 Orders on Northern Ireland are to be debated in the two Houses of Parliament. I think I am right in saying that by the end of this week a grand total of 26 pieces of legislation on Northern Ireland will at least have started their way through Westminster since the advent of direct rule. I am not particularly concerned this evening at the heavy and responsible work load that this places on the Northern Ireland Office and those of us in the Opposition who are concerned with such matters; it is the people of Northern Ireland about whom we have concern. One is pretty sure that legislation for Northern Ireland cannot, in the present circumstances, receive the kind of detailed scrutiny it really ought to have. In most cases in this House—and I suppose it is true of the other House—all too few of us have the specialised knowledge that we ought to have. In any event, our time is always strictly limited, and in no instance can we amend these Orders, however valid our points may be.

All this emphasises the urgent need to establish a new Assembly in Northern Ireland; one that will bring proper expertise and time to legislative affairs, and one that will genuinely share power between the two communities at present so sadly divided. In the meanwhile, as the noble Lord, Lord Windlesham, has said, there is in existence an Advisory Commission which has a duty to perform in critically assessing Northern Ireland Orders. One wonders whether they are perhaps more interested—and it would be understandable if it were so—in the security and political aspects of the Province rather than the more academic examination of complicated and, for some, boring legislation—that is to say, if Orders on drainage can be considered as academic legislation. Perhaps we can be told what sort of time the Commission spends on each Order, on average, and the extent to which it has been successful in effecting significant changes to the draft Orders.

Moving on to the Drainage Order proper, I note that it has two main features. First, it replaces much of the law relating to drainage in Northern Ireland, and brings most of it together in one comprehensive measure. I think that the extent to which, while the Province has been almost torn apart by civil strife, a thorough overhaul of Northern Ireland law and structures has been taking place, is not sufficiently appreciated. It is good that we should be streamlining things in this way. Secondly, the Order removes responsibility for drainage from the county councils, and councils of county boroughs, and places this responsibility with the Ministry of Agriculture. This is one more measure in the massive reorganisation of local government in Northern Ireland designed to place the exercise of most functions on a Province-wide basis, in accordance with the recommendations of Macrory. A new and more efficient structure of government is taking place, and one only hopes that it will not be long now before elections are held to both the new local authorities and to a new provincial assembly, so that the people of Northern Ireland themselves can operate this system to their collective benefit. Both the rationalisation and the reorganisation aspects of the Order are welcome to this side of the House, and therefore we give our broad support to this measure. However, I should like to make a few observations and ask a few questions on the details of the Order.

I ask a few questions; I hope your Lordships will be a little patient with me because, as I said, this Order is being introduced here before the other place, and it would seem proper, therefore, to raise more points here than would be normal if it had been brought the other way round. Article 2(2) makes it clear that the Ministry responsible for drainage will be the Ministry of Agriculture. I notice that soon we are to consider another Order on Northern Ireland on the Reorganisation of Water and Sewerage, and in this case the responsible Ministry will be the Ministry of Development. I wonder whether there is not something to be said for both drainage and water and sewerage coming under a new Ministry of the Environment in Northern Ireland. I notice that in the Unionist Party's document, Towards the Future, the idea of a Ministry of the Environment was recommended.

Article 3(4) specifies the activities of the Drainage Council. May I ask what sort of mileage of both water courses and sea defences we are talking about? In the case of sea defences, are these concentrated on any particular stretch or stretches of coastline? Article 12 lays down the procedure to be followed by the Ministry in the preparation of a drainage scheme. Are there any significant differences in this procedure compared with the relevant procedure in England and Wales? In particular, is the period of 28 days the same as that over here? Article 15(4) enables a dispute to be referred to arbitration under, and in accordance with, the provisions of the Arbitration Act (Northern Ireland) 1937. Obviously, we here are not familiar with the provisions of that Act, so perhaps the main features of the arbitration procedure in question could be explained to us.

Article 16 concerns the amendment of drainage schemes. The Ministry has to consult with persons likely to be materially affected by the amendment, but should the amendment not also be advertised in the Press, as in Article 12(1)(b) for the original scheme? Article 20 relates to the disposal of surplus lands and contains some imprecise phrases. Paragraph (2) of the Article enables lands to be disposed, as it puts it, in such manner as the Ministry, with the approval of the Ministry of Finance, considers fit. Is there no limit to what the Ministry could do? Could it sell the land to a property developer at a price considerably above the buying price, and so aid land speculation? Perhaps this situation would not, or should not, occur, but it illustrates the vagueness of the phrasing in this article. Paragraph (3) enables the person from whom any land was acquired to repurchase it within three months of completion of the works, but he has to make the request in writing. Ought there not to be an obligation on the Ministry to offer land that is to be sold to its original owner in the first instance? Another area of uncertainty is in the phrase: at a price comparable with the price paid by the Ministry in respect of the acquisition thereof by the Ministry". What does "comparable" mean in this context?

Article 30 is about drainage schemes outside Northern Ireland. I find it a little puzzling that it never mentions the Republic of Ireland. The Order puts it: land which is situate partly inside and partly outside Northern Ireland". Where that land is outside Northern Ireland, is it not in the Republic? I should like to ask what sort of co-operation has taken place in the past between the North and the South of Ireland. Looking a little to the future, I hope that the White Paper, when it is published, will include provisions for some sort of All-Ireland Institution, as I suggested earlier, that will oversee and develop co-operation betwen the North and South, such as that enabled by this Article.

Article 31 renders the Ministry not liable for noxious weeds which may result from the activities of the Ministry. On the face of it, this seems to be unfair to landowners who may suffer through no fault of their own. I wonder whether we could have an explanation of this Article. Article 34 allows the Ministry to sponsor environmental research. This, as we shall all agree, is a very sensible measure. One wonders whether money has been earmarked for it and whether the Ministry has any particular projects in mind at the moment. Article 37 is concerned with entry on to land. I notice that no advance warning is required to be given to the owner of the land before an authorised person enters on to it. However, in Article 58(2)(b) of another Northern Ireland Order—that is, the one on rates—it was specified that the Commissioner of Valuation had to give 24 hours' notice of an intended entry upon land. I wonder why there is no such provision in this Order.

Article 39 excludes the Ministry and its officers or servants from action in law or in equity in regard to compensation or protection under the Order. This seems to be an unusual declaration of non-responsibility. I wonder whether this is, in fact, an acceptable provision. Article 42 is concerned with financial provisions. How much will the terms of this Order cost the Ministry in the financial year 1972–73; and has this been included in one of the three appropriation Orders which have been approved at Westminster? How will expenditure develop over the next two or three years? Finally, what are the staffing and vocations under the provisions of this Order? Presumably, it will involve a reduction in the relevant staff at present employed by the county councils and the councils of county boroughs, and an increase in the relevant staff employed at the Ministry of Agriculture. Can a transfer of staff take place, and can we be sure that where there is redundancy full compensation will be paid? Also, what about the total staff employed on drainage throughout the Province? Will they be affected by the Order?

There are a number of other questions which a reading of this Order prompts in one's mind. I have taken up a good deal of your Lordships' time, but it seems to me that this is the kind of consideration which, from time to time, we must give to Orders of such magnitude as this one, covering such a vast area. I hope that the noble Lord, Lord Windlesham, will not feel that I have been a little unreasonable. Before the discussion in your Lordships House, I tried to give him some indication of the nature and number of questions that I would ask. May I say that I shall quite understand if he is not able to reply this evening to all of my questions, but I am quite certain that what I have said may serve to alert his Department to the kind of question which is being asked.

7.33 p.m.

VISCOUNT AMORY

My Lords, the noble Lord, Lord Garnsworthy, has asked my noble friend a formidable list of questions and, while not being at all critical of that—because all the questions he asked seemed to be entirely relevant—I hope that he will not be offended if I suggest to my noble friend that he should follow the advice which is sometimes given to students: "Do not attempt more than three questions. Give your reasons and draw a map." About 15 years ago I used, for a very short time, to consider myself something of an expert on drainage, though I am sure that the noble Lord, Lord Champion, who is at present sitting on the Woolsack would not agree that I was. In those days we used, generally, to find drainage Bills and Orders not Party-politically controversial, but I should certainly have expected to spend a whole day in debating Orders such as this. So far as I remember, the drainage proposals that were put forward had been so well discussed beforehand that they were generally very sensible indeed, and I would guess that that is the case here, too.

It has been our pleasure to give a fair and a timely wind to these Northern Ireland Orders, because we realise the pressure under which my right honourable friend the Secretary of State has to work. I am sure that that attitude is right and is what we wish to go on with, although I should like to echo what the noble Lord, Lord Shackleton, said. But I hope that this virus will not get too much into the Government's bloodstream, so that they begin to ask us to apply instant government to the rest of the United Kingdom, too, because I venture to suggest that they would not then get away with it so easily. Having said that, I feel that in this case we can be sure that these proposals have been discussed and are likely to be generally acceptable, though I would not for a moment quarrel with the questions which the noble Lord has asked in respect of them. I see one old friend in Article 31, which states that the Minister cannot be sued if he disseminates noxious weeds. I sometimes used to lie awake at night fearing that I would be sued for disseminating noxious weeds, and I do not think I was ever smart enough to put an article to that effect into an Order.

LORD WINDLESHAM

My Lords, I am grateful to the House for its courtesy and for the way in which all these Orders have been received. I liked the advice of my noble friend, Lord Amory, who speaks with such experience in both Houses of Parliament: "Do not attempt more than three questions and draw a map." I think the noble Lord, Lord Garnsworthy, would like me, at any rate, to sketch in a map in answer to some of the questions which he put when lie spoke from the Opposition Front Bench. He made the valid point that this Order, unlike the others, has not yet been considered by the House of Commons. The other Orders either have been considered or are being considered to-day—the same day as your Lordships are considering them. So this one falls into a different category, and fully deserves the detailed scrutiny which the noble Lord has given it.

The noble Lord, Lord Garnsworthy, asked about the Northern Ireland Advisory Commission which, as he said, has a responsibility under the Northern Ireland (Temporary Provisions) Act to advise the Secretary of State on draft Orders in Council. I can tell him that it discharges that responsibility. Careful consideration is given to any draft Order in Council that is brought before it. The Secretary of State himself chairs the meetings. There is always a good attendance and the practice is for one of the junior Ministers, either myself or one of my colleagues—whoever is responsible for the Department concerned—to present the Order in draft with senior officials present and taking part in the discussion. The debate tends to be rather like that in your Lordships' House when it is in Committee, and a thorough and detailed scrutiny is given to each Order in draft form. Normally, each Order will be considered and approved at one meeting, but in some cases it has needed two, or even three, meetings. I recall that one Order was considered at three successive meetings of the Commission. In this case the Advisory Commission considered the Drainage Order in draft, and their main proposal was that an additional member should be appointed to the Drainage Council. That point was accepted and the Order was amended accordingly.

As the noble Lord, Lord Garnsworthy, said, Article 2, the interpretation article, makes it clear that the reference to "the Ministry" is to the Ministry of Agriculture for Northern Ireland. The Ministry has for many years been identified with land or river drainage in Northern Ireland. It is already the drainage authority for rural drainage, as I explained, in the same way as the Ministry of Agriculture has the responsibility in England and Wales. The noble Lord asked: would there be a case to have the water and sewerage functions of the Ministry of Development and the drainage functions of the Ministry of Agriculture put together to form a new Department for the Environment? I should point out that the Northern Ireland Ministry of Development is really already the equivalent of the Department of the Environment, in that it includes the three principal functions handled at Whitehall by the Department of the Environment; that is housing, local government and transport. So to add drainage would be to move away from the pattern in the rest of the United Kingdom where the Ministry of Agriculture is responsible for drainage, and not the Department of the Environment.

The noble Lord asked what mileage of water courses and sea defences in Northern Ireland would be affected by this Order. I understand that there are some 3,000 miles of tributaries, 1,500 miles of main water courses and 13 miles of sea defences at Loch Foyle. The noble Lord next asked whether there are any differences between the procedure proposed in Article 12 and what applies in England and Wales: in particular, the period of 28 days after publication of a notice following which observations must be sent to the Ministry. I understand that these provisions are broadly similar to those which apply in England and Wales. If there are any significant differences I shall let the noble Lord know. Twenty-eight days is becoming a standardised period of time. Previously, expressions like "one month", which could be 30 or 31 days, tended to be used: now there is a standardisation on 28 days.

The noble Lord then drew attention to Article 15(4), relating to provisions with regard to roads and bridges. This refers to arbitration in the event of a dispute between the Ministry and any authority responsible for building bridges, roads and culverts. In the present circumstances, this authority is another Government Department; the Ministry of Development is responsible for roads, bridges, and so on, on this scale. I understand that there never has been a dispute that has needed to go to arbitration since this procedure was first introduced in 1947. This article does no more than to continue the present Northern Ireland law. As to Article 16, relating to amendment of drainage schemes, the noble Lord asked whether it would be a good idea to advertise in the Press. I can see that this might be of some value in certain circumstances. Of course, there is already consultation both with the Drainage Council and with many other outside interests; but I should like to take note of that proposal.

Article 20(2) refers to the disposal of surplus lands. The noble Lord, Lord Garnsworthy, put the questions: is there any limit on the Ministry's power to dispose? Is this article worded in a manner which is rather too wide? Here again, it helps to get a perspective if we have in our minds the fact that this provision has seldom been used. I understand, on the information available to me at the moment, that the power has been used on only three occasions since 1947. It is true that there is no limit contained in the wording of Article 20(2) itself; but the approval of the Ministry of Finance is required, and this includes a Ministry of Finance regulation that when surplus land is to be disposed of it must first be offered back to the original owner at the price at which it was originally purchased, allowing for changes in the value of money. Article 30 concerns drainage schemes outside Northern Ireland. As the noble Lord, Lord Garnsworthy, correctly inferred, in practice this means the Republic of Ireland. The Ministry of Agriculture at Stormont works in cooperation with the Board of Works in Dublin. I understand that relations are cordial, and a number of cross-Border drainage schemes have been carried out on a shared-cost basis.

Article 31 relates to noxious weeds, and the noble Lord asked whether this provision could be unfair to landowners. We have lost my noble friend Lord Amory, a one time Minister of Agriculture, but it is interesting that what the noble Lord had to say on noxious weeds stirred memories of the past in his mind. I understand that seeds are likely to be in water or a watercourse, and if they were disturbed by Ministry officials the officials would not be putting something on the bank which is not already present in the water. There is already a requirement on farmers to deal with noxious weeds. As to Article 34, the noble Lord, Lord Garnsworthy, asked whether any money had been earmarked for research. A small token sum of £500 is provided for each year. There has also been one experimental research project, carried out some four or five years ago. Article 37 deals with entry on land for the purposes of inspection. The noble Lord queried why no advance warning had to be given. Normally, I believe, there is advance notice at local level. It is not the practice to arrive without warning. Arrangements are good at local level. Sometimes Ministry of Agriculture engineering assistants, who are engaged on survey work, do need to enter on land, but they will always seek to do so with consent, and giving advance notice at local level whenever this is possible, as it normally is.

As to Article 39, the noble Lord asked whether it was acceptable that there should be no accountability to the courts in the circumstances set out in the Article; and this is also a provision to which the Special Orders Committee of your Lordships' House drew attention. I should explain that it applies only where the arbitration procedure contained in Article 40 is appropriate, or where a dispute goes to the Lands Tribunal—Articles 17 and 18. So it is only where other remedies are contained in the Order that Article 39 would apply.

Article 42 relates to financial provisions. The noble Lord asked what the cost of drainage was. On average, the cost is running at about £2½ million to £2¾ million per annum, plus a further £2¾ million over four years under an accelerated drainage programme which was part of the Cairncross package. An amount of £2,311,000 was included in the Northern Ireland Estimates, totalling £391 million. That was the amount of the Civil Estimates for all services, which were voted by Parliament in the Appropriation Orders No. 1 and No. 2. Finally, the noble Lord, Lord Garnsworthy, asked me about staffing. There are no staffing implications, or almost none, in the Order as such, except possibly a small number of staff of local authorities concerned with urban drainage, who will be transferred to the Ministry of Agriculture. The numbers are small because much of the work which is carried out at the moment by local authorities is carried out under contract. The total number of people in Northern Ireland employed mainly or wholly on drainage work by the Ministry of Agriculture is at present of the order of 1,700.

My Lords, I hope that reply has not been either too full for those of your Lordships who wish to move on to debate other matters, and who have been sitting here patiently for quite a time, I am afraid, or too sketchy for the noble Lord, Lord Garnsworthy, who put the questions. What I should like to do is to go back with the Northern Ireland Office over the detailed list of questions which the noble Lord set forth in his speech, and to write to him supplementing what I have said and filling in any gaps in the information which I have given the House this evening.

On Question, Motion agreed to.