HL Deb 10 December 1974 vol 355 cc577-84

4.41 p.m.

Baroness BIRK

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received—(Baroness Birk.)

On Question, Motion agreed to.

Clause 1 [Ambit of Act, and interpretation]:

Baroness BIRK moved Amendment No. 1:

Page 1, line 16, at end insert: For the avoidance of doubt it is hereby declared that the expression "reservoir" does not include a canal or inland navigation (but this Act applies to a reservoir notwithstanding that it may form part of a watercourse or be used for navigation).

The noble Baroness said: My Lords, this Amendment arose out of an Amendment moved at the Committee stage by my noble friend Lord Stow Hill. On that occasion, at column 139 of Hansard of 3rd December, I said that there was no difference between my noble friend and myself over the aim to be achieved here. I then went on to say: The difference between us is whether in fact there is a doubt. I later said: I must say after close consideration—and my noble and learned friend is right, I studied very carefully what he said—I do not believe that there is in this instance a doubt I am still of that opinion, but in view of the strong arguments put forward by my noble friend, and because I believe that if there are Members of your Lordships' House who feel that in a case of this sort there really is an area of doubt, although we are all agreed that the aim and the principle are the same, therefore it is my duty to do what I can to see that the matter is clarified, so far as possible, beyond any doubt. That is why this Amendment is before you today, put down in the names of my noble friend Lord Stow Hill and myself.

The purpose of the Amendment is to place it beyond doubt that canals are not within the ambit of the Bill. May I just explain the words in brackets in the Amendment: (but this Act applies to a reservoir notwithstanding that it may form part of a watercourse or be used for navigation). This is because there are canal systems which have been formed by joining together lakes or lochs by canals, and the words in the brackets are included to meet this kind of case. If the provisions of the Bill would otherwise apply to such a lake or loch by virtue of subsection (2) of Clause 1, then the fact that the lake or loch forms part of a canal system would not exempt it from the provisions of the legislation. The Bill will not, of course, apply to those sections of canal which join the lakes or lochs. I beg to move.

Lord STOW HILL

My Lords, I desire to intervene shortly in this debate in order to express my cordial thanks to my noble friend the Minister for having put down this Amendment which we are at present considering. She has gone to an immense amount of trouble, and although I realise that she feels in her own mind that there is no real need to introduce this further provision in the Bill, I think she agrees with me that it is an improvement in that it will remove any possible doubt. I am quite sure that the British Waterways Board, who are directly affected, would wish to be associated with me in this expression of thanks. I support the Amendment, and, as I have said, am extremely grateful to my noble friend.

Baroness YOUNG

My Lords, I, too, should like to welcome this Amendment. We had quite a lengthy debate on this subject at Committee stage, and I am happy to support this Amendment, which makes the position much clearer. I am sure that one should accept the advice that perhaps it is unncessary, but on the principle that, at the end of the day, the definition will be decided in court and not on what is recorded in Hansard, I think that it is necessary to get an accurate definition of a reservoir.

Although this is not strictly on this Amendment, I should like to ask the noble Baroness, Lady Birk, one further point on definitions. She has most helpfully written to me two long letters on various detailed matters in this Bill, and I should be glad if she would confirm—I think this is the intention in the first paragraph of the first letter she wrote to me—that a reservoir must be not only of a certain cubic capacity but must be above the level of the ground in order to be defined as a reservoir. I should be glad if she could give me the answer on that point.

Baroness BIRK

My Lords, the answer to that point is that under this Bill a reservoir has to be a raised reservoir.

On Question, Amendment agreed to.

Clause 9 [Re-use of abandoned reservoirs]:

4.47 p.m.

Baroness BIRK moved Amendment No. 2:

Page 10, line 24, at end insert— (8) Where an enforcement authority propose to serve a notice under subsection (7) above requiring undertakers to carry a recommendation into effect, the authority shall consult as to the time to be specified in the notice a civil engineer, being a qualified civil engineer for the purpose of inspecting and supervising the reservoir under this section.

The noble Baroness said: My Lords, with the permission of the House, I think it would expedite matters if I spoke to what are really the twin Amendments Nos. 2 and 3. They stem from another Amendment of my noble friend Lord Stow Hill in Committee, which I said I would take back for consideration.

The purpose of these Amendments is to ensure that where the enforcement authority propose to serve a notice on a reservoir undertaker requiring him to carry out recommended safety measures, then they must consult a qualified civil engineer on the time limit to be specified in that notice. The enforcement authority will need professional advice to ensure that the time limit they fix is both reasonable from the undertaker's point of view and consistent with public safety. I beg to move.

Lord STOW HILL

My Lords, may I once again have your Lordship' leave to intervene in order to thank my noble friend for making these two changes to which she has spoken. I am deeply grateful to her, and I think they most certainly improve the Bill as it stands.

On Question, Amendment agreed to.

Clause 10 [Periodical inspection of large raised reservoirs]:

Baroness BIRK

My Lords, I beg to move Amendment No. 3.

Amendment moved—

Page 11, line 44, at end insert— ( ) Where an enforcement authority propose to serve a notice under subsection (7) above requiring the undertakers to carry a recommendation into effect, the authority shall consult as to the time to be specified in the notice a civil engineer, being a qualified civil engineer for the purpose of supervising under subsection (6) above the carrying into effect of the recommendatons."—(Baroness Birk.)

On Question, Amendment agreed to.

Clause 14 [Abandonment of large raised reservoirs]:

4.49 p.m.

Baroness BIRK moved Amendment No. 4:

Page 14, line 31, at end insert— (5) Where an enforcement authority propose to serve a notice under subsection (4) above requiring undertakers to carry a recommendation into effect, the authority shall consult as to the time to be specified in the notice a civil engineer, who, if the recommendation involves any alteration of the reservoir, shall be a qualified civil engineer for the purpose of supervising the alteration under section 13 above.

The noble Baroness said: My Lords, I beg to move Amendment No. 4, and to say that the purpose of this Amendment is similar to that of the Amendments to Clauses 9 and 10 which the House has just passed, to ensure that the enforcement authority takes professional advice before fixing the time limit to be specified in a notice requiring the undertaker to carry out recommended safety measures before the use of a reservoir is abandoned, or as soon as practicable afterwards. Where the use of the reservoir can be abandoned without alteration, the measures specified are likely to be simple. Accordingly, a civil engineer, not necessarily a panel engineer, would be capable of advising the enforcement authority on the time limit for carrying out the recommended measures. Where, however, alteration is required, the engineer consulted by the enforcement authority will be a qualified civil engineer. I beg to move.

On Question, Amendment agreed to.

Clause 17 [Powers of entry]:

4.50 p.m.

Baroness BIRK moved Amendment No. 5:

Page 16, line 40, at end insert— or is being constructed or altered so as to be one, whether the reservoir being a large raised reservoir is being altered so as to increase its capacity, or whether the reservoir is or is not in use as a reservoir; ( ) for the purpose of carrying out any survey or other operation needed to determine whether any recommendation as to measures to be taken in the interests of safety has been carried into effect as required by section 9, 10 or 14 above or what period should be specified in a notice under section 9, 10 or 14 requiring the undertakers to carry such a recommendation into effect;".

The noble Baroness said: My Lords, the purpose of this Amendment is to secure that the powers of enforcement authorities to enter on land correspond fully to the responsibilities imposed on them by the Bill. As the Bill stands, a person authorised by an enforcement authority can enter on land to carry out a survey for determining whether a reservoir is within the ambit of the Bill; to carry out any inspection, survey or other operation in pursuance of the enforcement authority's reserve powers under Clause 15(1); to supervise the carrying out of safety measures where the undertaker has failed to put them into effect following a notice served by the authority; and for purposes connected with the authority's emergency powers under Clause 16.

The Bill does not, however, provide the power to enter on land in order to determine whether a large raised reservoir is being constructed or is being altered so as to increase its capacity; whether a large raised reservoir has been abandoned or whether an abandoned reservoir has been brought back into use. Neither are there any powers for an authority to enter on land for the purpose of ascertaining whether safety recommendations have been put into effect, and for determining what would be a reasonable period of time to specify for the carrying out of the work in a notice under Clause 9(7)(b), Clause 10(7)(b) or Clause 14(4)(b). Powers of entry for these purposes are essential if enforcement authorities are to be able to perform their duties effectively and reasonably. The Amendment is designed to fill this gap in the Bill.

Once again it refers back to the original Amendment of my noble friend Lord Stow Hill on Clause 10. My Lords, I beg to move.

Lord STOW HILL

My Lords, may I please express my feelings and thank the noble Baroness once again?

On Question, Amendment agreed to.

Baroness BIRK moved Amendment No. 6:

Page 17, line 25, at end insert— A notice under this subsection shall specify the purpose for which entry is required and shall indicate so far as practicable the nature of any works to be executed on the land.

The noble Baroness said: My Lords, again this is an Amendment which during the Committee stage I took back for further consideration, it having been moved at the time by my noble friend Lord Stow Hill. The purpose of the Amendment is to require the enforcement authority to state in the notice of intended entry to be given under subsection (4) the purpose for which entry to the land is required, and to indicate so far as is practicable the nature of any works to be carried out on the land. The enforcement authority has to give notice before entering on land in all cases except in the exercise of its powers under Clause 16 to take immediate action in an emergency. My Lords, I beg to move.

Lord STOW HILL

My Lords, this is a point about which the Board were particularly concerned and I am indeed very pleased to see that my noble friend has been able to meet it.

Viscount SIMON

My Lords, may I ask the noble Baroness a question? I do not understand how the inspecting officer, before going on to the land, can indicate the nature of the work to be executed. Will he not require to see what needs to be done, and is it not unreasonable to say that before entering the land he has to notify the works that he intends to require to be done?

Baroness BIRK

My Lords, the point is that the Amendment says: A notice under this subsection shall specify the purpose for which entry is required and shall indicate so far as practicable the nature of any works to be executed on the land. In other words, there are two parts to it. He will obviously know the purpose for which he is asking for entry to the land, and, where he has some reason to believe that there are certain works that need to be done, then it seems only right to be able to expand a little on that, and give an indication of what he thinks at that point needs to be done. If, of course, he does not know this, he obviously cannot give the information. The whole purpose of almost bending backwards is to give as much information as possible, but where that is not possible it obviously cannot be given.

On Question, Amendment agreed to.

Clause 22 [Criminal liability of undertakers and their employees]:

Baroness BIRK moved Amendment No. 7: Page 21, line 41, at beginning insert "then unless there is reasonable excuse for the default or failure,

The noble Baroness said: My Lords, the purpose of this Amendment is to bring the provisions concerning criminal liability of undertakers and their employees into line with present Government policy, which is that offences of absolute prohibition should be created only in very exceptional circumstances. Subsection (1) of Clause 22 creates offences of absolute prohibition in relation to failure by an undertaker to carry out specified provisions of the Bill, or to comply with notices issued by the enforcement authority. The Amendment would allow for the exceptional case where the undertaker had a reasonable excuse for his default or failure to comply. My Lords, I beg to move.

On Question, Amendment agreed to.

Baroness BIRK moved Amendment No. 8: Page 22, line 2, after "fail" insert "without reasonable excuse".

The noble Baroness said: My Lords, the purpose of this Amendment is similar to the following one, but the principle is the same. It would allow the undertakers a defence on the grounds of reasonable excuse for failing to give notice in due time to the enforcement authority of any matter of which they are required to give notice. This would cover cases where notices had been sent but failed to arrive. My Lords, I beg to move.

On Question, Amendment agreed to

Baroness BIRK moved Amendment No. 9: Page 22, line 7, after "them" insert "without reasonable excuse".

The noble Baroness said: My Lords, the purpose of this Amendment is similar to that of the two which I have just moved, and would allow the undertaker a defence on the grounds of reasonable excuse for failing to provide the required information for the supervising or inspecting engineer specified in subsection (5) of Clause 21. This would provide a defence for the undertaker where, for example, records had been destroyed accidentally by fire. My Lords, I beg to move.

On Question, Amendment agreed to.