§ —Motion for Withdrawal
§ 5.40 p.m.
§ Lord Moran rose to move, That this House invites Her Majesty's Government to withdraw the Transport and Works (Description of Works Interfering with Navigation) Order 1992, laid before the House on 9th November, and to lay before the House another draft order with barrages removed from the scope of the order.
§ The noble Lord said: My Lords, I have put down the Motion because if the order being moved by the noble Earl, Lord Caithness, were to be approved by the House as it stands, it would mean, as I understand it, that Parliament would no longer be able to consider most estuarial and river barrage proposals. That is open to serious objection. I am interested in barrages in the commonly understood definition of that term —that is, impounding dams built right across rivers or estuaries—not the other structures listed in the order such as embankments or breakwaters.
§ The Transport and Works Bill was considered by your Lordships' House in the spring, three days before Dissolution. At that time, I imagine the political parties had other things on their minds. The Bill passed its Second Reading and all remaining stages on one day, 13th March. It seemed a relatively harmless measure, meeting the anxieties in both Houses about the proliferation of Private Bills and dealing apparently only with matters such as railways, trams, trolley systems and inland waterways. There was no mention of barrages in the Bill. No one said a word about barrages when the Bill went through Parliament.
§ Now we have before us an order with the forbidding title of Transport and Works (Description of Works Interfering with Navigation) Order 1992, which, if passed, would apply the provisions of the Transport and Works Act to barrages and some other works such as bridges, piers, cables and pipelines. It is proposed that it should come into force in 18 days' time on 1st January, 1993. Its main effect will be to make it possible for any promoter to seek an order for a barrage from the appropriate Secretary of State, without, as now, coming to Parliament.
§ If such an order were to be granted, we and the other place would no longer be able to consider 435 barrage proposals unless, under Section 9 of the Act, the Secretary of State were to form the opinion that the project was of national significance, in which case he could not make an order without obtaining the approval of both Houses of Parliament on a Motion to approve the project in principle. I shall say a word about that in a moment.
In anticipation of the order, the promoters of the second River Usk Barrage Bill, which was given a Second Reading under Standing Order No. 54 following a 24–24 vote in this House on 13th July, decided to withdraw their Bill which, indeed, seemed unlikely to survive all its stages in your Lordships' House. The leader of Newport Borough Council, Mr. Harry Jones, has written to me saying:
Recently, the Council was informed of the Government's firm intention to extend the scope of the Transport and Works Act 1992 to apply to river barrages. This new procedure will be beneficial in a number of ways … the public inquiry system is fairer for local people, who will find it easier, more informal and less expensive to attend".
§ Mr. Jones clearly thinks that the Usk barrage proposal stands a substantially better chance of being approved under the arrangements the Government now propose than if it were to be scrutinised by both Houses in their respective Select Committees. I dare say that he is right.
§ Why should not we be content with what is now proposed? First, we should raise an eyebrow at the way this important legislation has been handled. To slip through the original Bill on the eve of a general election when no one was paying much attention, and then to invite the House to approve, just before the Christmas Recess, an order which substantially extends the scope of the Act, does not seem to me the best way to proceed. If the Government wanted the Act to cover barrages, why did not they include them in its scope so that those in either House—there are a good number—who are interested in barrages, either as supporters or critics of them, could have had a proper discussion of the issues and, if necessary, put down amendments to the Bill? I do not believe that the House has had a proper opportunity to consider the proposed changes in procedure relating to barrages.
§ But the main reason why I have put down the Motion is that it seems to me clear that the construction of barrages, in practice, raises all kinds of problems upon which I believe your Lordships ought to have a say. If the effects of barrages were to be of purely local significance, I should see little objection to what the Government propose. But barrages may, and do, involve issues transcending local considerations and ought to receive parliamentary scrutiny.
§ Let me give one or two examples. The Cardiff Bay Barrage Bill to which your Lordships gave a Second Reading on 16th November involves, as was made clear, the principle of whether it is right or consistent with the Government's environmental policies to destroy an SSSI. It also involves a possible breach of the Community's birds directive and the implications of a judgment by the European Court of Justice, matters that are to be pursued in Brussels. Again, an aspect affecting Cardiff Bay and other barrage proposals is the Community's waste water directive, 436 and the description under it of sensitive areas requiring additional treatment of discharges, which may be extremely costly. That aspect was referred to in relation to Cardiff Bay by the noble Viscount, Lord St Davids, when he spoke in the House on 16th November (col. 483.). It is obviously of much more than local significance.
§ Inland fisheries are a matter of obvious national importance, and Parliament has given the NRA statutory responsibility to maintain, improve and develop them. But barrages inevitably have an adverse effect on fisheries. Fish passes can be included in barrages but they are not always fully effective—even at Pitlochry a good many salmon turn back and never return—and they have other disadvantages. At the new Swansea barrage on the River Tawe a seal has taken up station at the entrance to the fish pass. Its interest is not, I think, purely academic.
§ In the two barrage proposals we have most recently considered in the House, I referred on Second Reading of the Cardiff Bay Barrage Bill to an expert view that, despite all the measures which are planned, numbers of salmon and sea trout entering the Taff may fall by a third or more, and about the proposed Usk barrage, that the NRA continues to have serious concerns about the damage the proposal may do to the aquatic environment, and in particular to fish stocks and fisheries. Damage to inland fisheries is, in my view, a question that goes much wider than purely local interests.
§ I should at this point say something about Section 9 of the Act which deals with projects of national significance. In the first place, it is entirely up to the Secretary of State concerned to decide when a proposal is of national significance. If he decides that it is not, there is nothing we can do about it, even if his decision were to appear to us unreasonable. But let us suppose that in a particular case—for example, the proposed Severn barrage —he does decide that it is of national significance. In that event, as I understand it, we could discuss only the approval of the project in principle. We could not, I believe, consider in depth or in detail the economic or environmental aspects of the project. But it is just those aspects that I believe we would want to examine. For example, I happen to be interested in fisheries. I believe that present plans for the Severn barrage would require incoming salmon to pass through the generating turbines; but, to the best of my belief, scientists have so far found no way in which a yard-long fish, swimming strongly against the flow but being sucked slowly back through the turbine, could avoid being cut up by the rotary turbine blades. So there could be 100 per cent. mortality and the runs of salmon in three famous rivers—the Severn, the Wye and the Usk—could be wiped out. Yet under the proposed procedure we would have, it seems, virtually no chance of going into such matters. All that we could talk about would be the general principle of the project. I cannot believe that those in the House who are interested in fisheries would be happy about that.
§ I greatly fear that the inclusion of barrages in the order would lead to many more proposals being approved, even though they may do serious damage to 437 the environment, to our estuaries, to migrating birds and migrating fish. Barrages, many of them proposed for purely cosmetic reasons, have unfortunately become the fashion, and every town at the mouth of a river seems to want one. Local public inquiries in the town where a barrage is proposed will inevitably be subject to organised local pressures, and in Wales, the fact that the Secretary of State is himself promoting a barrage in Cardiff may make it a little difficult for him to resist the many proposals for barrages on other rivers in Wales; for example, on the Loughor and the Conwy.
§ Parliament has in recent years lost many of its powers, mostly in fields like sea fisheries, trade and agriculture where responsibility has been assumed by the European Community. In this instance, a substantial shift of responsibility from the legislature to the Executive is being proposed which your Lordships may think is not right. In this area, I believe that Parliament has acted responsibly and conscientiously. One has only to look at the considerable time spent in both Houses examining all aspects of the Cardiff Bay proposal—a process that wilt continue in the new year.
§ Lord Callaghan of Cardiff
My Lords, will the noble Lord allow me to intervene? He keeps referring to the Cardiff Bay proposal, as an illustration I take it. I believe that nothing in this order would stop the present progress of the Cardiff Bay Barrage Bill, as agreed on Second Reading.
§ Lord Moran
My Lords, I am sure that the noble Lord is right. It is my understanding that the Bill will proceed, having had its Second Reading, to a Select Committee and that it will then return for the Committee stage in this House. The reason I mentioned Cardiff Bay is that it is an example of what may happen and demonstrates the general point that I am trying to make.
For all those reasons, I suggest that it is wrong in principle that barrages, which are concrete walls across estuaries and rivers, blocking their flow to the sea and raising substantial environmental and fisheries problems, should be removed from the scrutiny of Parliament where they can be thoroughly and carefully examined from a wider as well as a local point of view.
We should remember that barrage proposals are effectively irreversible. Once built, it is almost inconceivable that they should be demolished. I do not know whether many noble Lords share my view that rivers are a valuable part of our natural heritage. They have been sadly damaged by pollution, abstraction and canalisation. Now there is the proliferation of barrages. I reflect sadly on the words of the poet Swinburne:That even the weariest riverWinds somewhere safe to sea".That was true in his day, but not in ours. I believe that this House ought to continue to keep an eye on what is being proposed on so many of our rivers. The Government's Motion is for an affirmative resolution and it is the normal practice of this House not to oppose such motions. But I am advised that it is in 438 order for us to invite the Government to modify their proposals and that is what my Motion seeks to do. I hope very much that the Government will accept it. If they are reluctant to do so, I hope that other noble Lords who have put down their names to speak will join me in questioning whether the order, in its present form, is appropriate. I beg to move.
Moved, That this House invites Her Majesty's Government to withdraw the Transport and Works (Description of Works Interfering with Navigation) Order 1992, laid before the House on 9th November, and to lay before the House another draft order with barrages removed from the scope of the order.—(Lord Moran.)
§ 5.53 p.m.
§ Lord Renton
My Lords, I am sure that your Lordships will agree that the noble Lord, Lord Moran, has done us valuable service in raising this matter. I agree with the view that he has taken and the request which he made towards the end of his speech to the Government.
As I understand it, the order is not technically ultra vires, but it is nearly so because in my opinion it goes much wider than was contemplated or could have been contemplated within the wording of the power given in the statute. If we consider it in detail—which I shall not invite your Lordships to do, except for one point—we find that it goes very wide indeed. A list is given in paragraph 2 of the numerous kinds of works which would be dealt with under the order by ministerial action instead of by Private Bill and we can see how wide the order goes.
That raises the whole question of the suitability of ministerial orders for deciding big, complicated and frequently controversial matters involving works in our country. Generally, they are works carried out by public authorities; but frequently the orders relate to works carried out by private companies, and so on; and even more so since privatisation.
The question is whether it is better to have the procedure of the Secretary of State appointing an inspector to hold a public inquiry perhaps lasting a day or two—very often somewhat superficial within my own professional experience —or whether it is better to have the thorough examination under our Private Bill procedure with a committee appointed by one or other of the Houses of Parliament. Therefore, Parliament controls those important matters in our somewhat overcrowded country in which we are all anxious about the environment and in which the flow of rivers, with the variations in our climate, is a matter of prime importance.
I must remind your Lordships that the whole of our railway system and all our canals were built under powers given by Parliament in private Acts of Parliament. They were not built under powers given by ministerial orders. I should have thought it better for us to keep it like that.
The noble Lord, Lord Moran, mentioned the current Private Bill, and the noble Lord, Lord Callaghan, interrupted him. Obviously this order could not retrospectively affect the process of a current Private Bill. I am glad about that because at 439 the moment a Private Bill called the London Docklands Railway (Lewisham) Bill—very close to London—involves the diversion of the River Ravensbourne in controversial circumstances. A committee of your Lordships' House has considered it for some time in great detail and the Bill is now awaiting Third Reading. It was promoted by London Transport, and the National Rivers Authority naturally put in an objection. The committee considered it carefully and has written several clauses into the Bill which will help up to a point. However, there is still the question as to whether the undertaking offered at one stage but no longer on offer, should nevertheless be observed. That matter may come up at Third Reading.
We can reassure ourselves that all Bills in progress will be subject to the Private Bill procedure. But this order has tremendous implications for the future. It could mean that public authorities especially, with the connivance of a Secretary of State, could decide to duck the Private Bill procedure of Parliament and get the whole process through within the bureaucratic machine. That does not appeal to me with matters of great public and environmental importance and anxiety.
Therefore, I consider that we should ask my noble friend Lord Caithness, when he replies to the debate, to say that he will take the order away or at least consult the Secretary of State about taking it away, consider it in the light of the debate and bear in mind that the Act under which the order was made went through swiftly. As I understand it, the power given to make the order went through on the nod.
With those facts in mind, I should have thought that we are now at a moment of decision which in years to come might be regretted. We are extending a present system. We are attempting to extinguish another system which has worked well whereby Parliament has the last word. Admittedly, we have only this week for the order to come into operation, if it is to come into operation by 1st January. But rather than losing those few days, I would have thought it is far better for the Government to lose the whole of a month until we reassemble on 18th January and perhaps come back with a modification of this order, or perhaps withdraw it altogether after further reflection in the light of the debate. I hope that my noble friend will take this matter very seriously.
§ 6.1 p.m.
§ Baroness White
My Lords, I join with the noble Lord, Lord Renton, in congratulating the noble Lord, Lord Moran, for drawing this matter to the attention of the House. Until I tried to read through the 50 pages of the Transport and Works Act I had no idea of the extent to which these provisions would be applied. I wish to make only a few remarks as I am not a lawyer. I am sure that, not necessarily Members of this House but lawyers outwith the House in due course would benefit considerably from the com-plexities of what at first glance might appear to be a relatively simple proposition. However, it is not simple.
440 At first I felt sympathetic to the thought that, by passing the Transport and Works Act, this House would be relieved of having to examine in depth, in a Select Committee, proposals in Private Bills covering the matters dealt with in the Act. Local people would also be saved much time, trouble and expense by not having to come to London or to engage legal counsel. But having now tried to make sense of the order before us, in relation to the Act, I am inclined to think, with the noble Lord, Lord Renton, that a House of Lords committee might have had its advantages. The breadth of discretion afforded to the Secretary of State in applying the Transport and Works Act is quite staggering. Unless they have read the Act, which is an onerous exercise, I believe noble Lords will not grasp the difficulties which I foresee, and which the noble Lord, Lord Renton, has emphasised.
My particular concern, and the matter raised by the noble Lord, Lord Moran, that of barrages, is confined to the Severn Estuary and sites on other rivers flowing into Welsh coastal waters. I assume that I am right in supposing that the operative Secretary of State will be the Secretary of State for Wales and not any other Minister. Barrages on rivers flowing into the Severn are of course subject to a tidal range which is among the highest in the world. They are not just minor experiments. I am concerned that any proposal touching the construction of such a barrage should at the very least be subject to a full local public inquiry. Such a proposal should never be subject to a discussion held behind closed doors. That could be done under the terms of this Act, as far as I can understand them.
Other rivers than those that flow into the Severn may also be subject to environmental hazards and should be fully examined in public. Without assurances that that will be forthcoming, it would be dangerous to accept the inclusion of the term "barrage" in the order which is before us. Various other lesser structures might be dealt with without a fully public hearing but not a barrage on a tidal estuary, wherever that occurs. As the noble Lord, Lord Moran, remarked, it might be argued that such areas are clearly of national importance under Section 9 of the Act. I am not convinced that that would be acceptable and in any case it is discretionary, as is so much of this Act.
The Secretary of State for Wales has so many conflicting duties and responsibilities that it would be safer to remove barrages in tidal waters from the order itself. Some other collective noun might be found for the lesser structures concerned, although I have not myself thought of one. For those reasons, without going further into the matter, I support the proposal of the noble Lord, Lord Moran, although I do not necessarily agree with all the arguments he may have put forward.
§ 6.6 p.m.
§ Lord McNair
My Lords, I am in something of a quandary as I rise to speak to this Motion. What I feel is wrong with the order really reflects what I feel is wrong with the Transport and Works Act itself. Other speakers have referred to the rapid passage of that Act 441 through your Lordships' House shortly before the election. I realise that the Minister will hasten to remind me that it was agreed through the usual channels not to have the usual lapse of time between stages because of the election. But I believe that we should have made more of this at the time, especially coming as it did so soon after the Third Reading of the rather unfortunate Private Bill from British Waterways.
In order to shed a little light on the principles which underlie the Motion and the Act, perhaps your Lordships might like to reflect on the wide range and depth of concerns expressed in this House during the passage of the British Waterways Bill. It seems to me that the Transport and Works Act has more far-reaching implications for many situations that impinge strongly in various ways on our national life and on our natural and man-made heritage than some of us realised at the time. It is my fervent wish and hope that something can be done in the near future to make the situations—including the barrages if this order goes through—which the Transport and Works Act addresses much more accessible to democratic influence.
In particular, under Section 11(1) the Secretary of State "may" instruct a local public inquiry or a more limited hearing. Under which circumstances would the Secretary of State instruct such a public inquiry or hearing to be held? Again, proposals which are of "national significance", as described in Section 9(1), may be referred to Parliament. What criteria would be used to determine "national significance"? I realise that not all barrages fall into that category although some of course do. I repeat that I remain most unhappy with the Transport and Works Act and hope that it will be amended appropriately before too much time has elapsed.
Turning to the Motion in the name of the noble Lord, Lord Moran, I understand that the Royal Society for the Protection of Birds actually takes a contrary view to that of the noble Lord. It feels that it would be better for barrage schemes to remain within the Act, even with its imperfections, than to take their chance with the Private Bill procedure fraught—as the RSPB sees it—as that procedure is in another place, with the complications thrust upon it by attempts to manipulate the parliamentary timetable.
I am between the devil and the deep on this issue and my way out is simply to press the Minister to give the House a clear definition of the criteria used in the three situations to which I referred earlier. I shall wait to hear what the Minister says before deciding on the merits of this Motion.
§ 6.9 p.m.
§ Lord Campbell of Alloway
My Lords, this order, if approved, could prove to be the first toll of the death knell of the Private Bill procedure for works of national importance of this order of general impact. It is a total departure from established practice. It sets a wholly wrong precedent.
The Long Title of the Act refers to tramways, trolley vehicles, guided transport—whatever that is —inland waterways and works interfering with 442 navigation. Who on earth could have known or suspected that we would be concerned with barrages, as ordinarily understood by all of us? No one. Not one word, I am informed, was said in either House about barrages. The matter was never under discussion.
That is an odd kettle of fish for a start. The Long Title of the Bill was not properly discussed or debated in either House of Parliament. There is then an implementing order which involves the say-so of the Secretary of State who, by executive decision, has some control over matters of such importance. In my book it is wholly unacceptable, and I have so informed my noble friend the Minister.
The rules of procedure of your Lordships' House —which have yet to find their way into the red Companion to the Standing Orders—render this Motion divisible. It is my hope that no such Division will ensue and that my noble friend the Minister will take this matter back for further consideration in the light of what has been said in your Lordships' House so that the order may be reintroduced in a form which is broadly acceptable to your Lordships.
That is not an idle request. These debates on affirmative resolutions on secondary legislation in your Lordships' House are no charade for rubber stamping. Indeed, as certain noble Lords may remember, before the revised rules of procedure, which are not yet in the Companion, were adopted, when my noble friend Lord Whitelaw was Leader of the House on a certain occasion he took great trouble to ensure that the course that I propose to my noble friend the Minister here and now was followed. It was followed. Eventually an amended order was returned to your Lordships' House, albeit with the delay envisaged by my noble friend Lord Renton of a month or two. That was acceptable to the House, and that was that.
One has to consider the technical aspect because this is a technical Act. A barrage, as defined by paragraph 3(1) of the implementing order as referred to in paragraph 2(a), falls within Section 3(1) (b) of the Act in respect of which an application has to be made under Section 6(1) of the Act, to which Section 9(1) of the Act should apply. But does it? As has been mentioned, it is dependent upon the say-so of the Secretary of State. Why does the Secretary of State have the say-so in a matter such as this? That is a novel departure. It sets a totally new precedent. It is, in the lawyers' sense, an evil precedent.
It is not to the point to suggest that, when an order is made or refused under Section 13, the matter is governed by Section 9(4) of the Act so that it has to be referred by the Minister to Parliament—but only after a morass of procedure has been followed under Sections 10 to 14. That is a totally dotty form of legislation. It is not appropriate to the subject in hand.
Why are the Government doing this? The answer is that the legislation was pushed through in a hurry. Nobody knew what they were really doing. They were certainly not concerned with barrages. Then, because barrages were creating a problem and one Bill went through while another was withdrawn, it was thought 443 that this would be a useful way to deal with the subject, which is of great national importance for the future.
The order seeks to implement Section 4 of the Act. In that section the description of the works for the purposes of Section 3 is left open for implementation by statutory instrument. It has been said already, but it is worth repeating, that a project for the construction of a barrage across an estuary or a gulf is a matter of national interest which far transcends purely local considerations. Properly, according to tradition and the way in which we have ordered our affairs for many years, it demands the attention of Parliament. It is not a proper matter for any form of delegated legislation. It does not properly lie within the remit of the Executive.
I shall cut out some of my speech, which was too long anyway. In practical terms, if this Motion were to be carried on a Division my noble friend the Minister may feel inhibited from moving his Motion for approval. Be that as it may, surely it is preferable that we should all proceed in the same spirit of consensus as I remember to have been the case under the aegis of my noble friend Lord Whitelaw. My noble friend should take the matter back for further consideration, having regard to the constitutional questions which have been raised by my noble friend Lord Renton and which I have sought to support in my own way, lest once again in a hurry, because Christmas is coming, a wrong precedent may be set. It does not matter if a precedent is set in a hurry if it is right, but if it is wrong it is still a precedent.
Such is the spirit in which I support the Motion. I congratulate the noble Lord, Lord Moran, upon bringing this important matter to the attention of the House. However, I shall not go into the Lobby if there is a Division: I believe that this is a matter for consensus.
§ 6.20 p.m.
§ Lord Callaghan of Cardiff
My Lords, when the noble Lord, Lord Moran, spoke on the Cardiff Bay Barrage Bill almost for the first time he and I found ourselves in some disagreement. This evening I wish to echo the noble Lord, Lord Campbell of Alloway. He has done a great service in bringing this matter before the House so that further thought can be given to it. I had not read the Bill either, although I attempted to do so through the good offices of my noble friend Lady White. However, I did not get much further than the Long Title. I hazard the guess that these provisions were an afterthought. I have been in Government now and again (though not for many years) and I have seen this kind of thing before. The Long Title is about matters relating to or ancillary to the construction or operation of railways, tramways, trolley vehicle systems and other guided transport systems. At the bottom there is one line which says:to amend certain enactments relating to harbours; and for connected purposes".I believe that it was one of those Bills that had been stuck in a departmental pigeonhole for a long time and it was decided that something had to be done 444 about tramways, trolley vehicles and railways. Many other noble Lords will share my suspicions that, having got those provisions drafted, a bright spark in another part of the Department of Transport said, "We have a Bill coming up. What a splendid opportunity to get those few clauses about harbours out of the way as well. We will never get a Bill on harbours on its own; let us stick them on the end of the railway Bill". I would be willing to bet a modest sum that that was how the clauses came to be there.
I believe that the Minister has to make a jolly good case this afternoon if he is to carry us with him. He must answer the specific point made by my noble friend Lady White. She cast some doubts on the possibility of a public inquiry being held, saying that in certain circumstances perhaps the Minister would have the power not even to hold a public inquiry in some of these cases. If she is right in that, this would be an absolute monstrosity to inflict upon the House. I cannot imagine that even the Ministry of Transport could have gone as far as that. But the Minister really must tell us that the Bill does not provide, as she herself believes, for that particular proposal.
I should like to say to the noble Lords, Lord Campbell and Lord Renton, that I am no lover of Private Bills. I saw how Cardiff was put through the wringer under the Private Bill procedure when we dealt with the Cardiff Bay Barrage Bill. It occurred to me that there were better ways of handling such proposals. They cost a lot of money, take up a lot of time and produce no result. I rather agree with the noble Lord, Lord Moran, that perhaps there is a case for looking at the procedure again despite all the rules and regulations of this House—even though it might deprive us of some of our prerogatives.
With respect to another place, I do not believe that the Private Bill procedure applying to the Cardiff Bay Barrage Bill could be regarded as the most expeditious and efficient way of dealing with grievances against the Bill. That was what we were concerned with. A good deal of procedure appeared to be taken up by other matters entirely. I do not argue that there is a case for retaining in this House the Private Bill procedure for all these issues. I believe that the Minister has to make a case that cannot be contradicted that, if that procedure is adopted, the Act does not provide for some bureaucratic procedure to be followed—which I believe were the words of my noble friend—under which perhaps even the possibility of a public inquiry cannot be considered. Like other noble Lords, my vote will await a satisfactory answer from the Minister. I believe that the noble Lord, Lord Moran, has a case when he complains about the procedure that has been followed and the way in which this Act has been passed. I believe that all of us need to scrutinise very carefully what the Minister has to say before we can give it assent.
§ 6.23 p.m.
§ Lord Bridges
My Lords, I should briefly like to intervene in support of the Motion introduced by my noble friend Lord Moran. On the face of it the draft order looks like a piece of bureaucratic tidying up; but the more one examines it, the more far-reaching it 445 appears to be. The first question I ask myself is: what is the extent of water to be covered by the order? The order does not define that area but the explanatory note contains a definition with the following words:works which interfere with rights of navigation in waters within or adjacent to England and Wales up to the seaward limits of the territorial sea".That seems to me to cover a very large area of different kinds of water. At one end of the scale one has estuaries, many of them important ones for the purposes of navigation. In most cases they are governed by separate Acts of Parliament. It is not clear to me what effect this order would have if it were used on the rights of navigation in such estuaries. There are three extremely dense pages of print in Schedule 3 of the original Act which may or may not bear on the question. However, before we come to a conclusion on the order I think it is important that we know what the effect will be upon rights enjoyed under such Acts permitting navigation in estuaries.
At the other end of the scale, one has small, navigable fresh water rivers where one is concerned more with the rights of individual users for navigation or for fisheries and with the riparian rights of owners. It would be of interest to know whether the noble Earl could tell us how those would be affected by the order. In between those two extremes there is a multitude of rivers and estuaries. I live in a village in East Anglia which is one of those places. The village was a medieval port. The port has now silted up. However, one of our prize possessions is a charter given to us by Henry III. He had a castle in the parish and wished the burghers to be on his side. In that charter he formally conveyed the rights of several fisheries on the adjoining river. It seems to me it is possible for the Secretary of State to utilise the powers given to him under the order to annul that charter given to us by the King. That is another doubt one has about the way in which the order may be used. Therefore, it raises significant questions about the way in which it may be exercised to affect rights under existing statutes. It will be helpful to have some clarification on the point from the noble Earl when he comes to reply.
§ 6.28 p.m.
§ Lord Clinton-Davis
My Lords, perhaps I may make clear from the outset that apparently my name was not on the original list, but that has been duly amended.
If I may say so, I believe that a very powerful case has been argued tonight on all sides of the House. It is my belief that potent issues have been raised. The most desirable course would be for the Minister to say to your Lordships tonight that in the light of the observations, he would wish to reflect further upon the matter with his right honourable friend the Secretary of State. I think we could ask for little more than that. I hope that he will be forthcoming in that regard.
So far as concerns the background to the matter, noble Lords who have spoken have said quite rightly that a very truncated procedure was adopted. It took place on the Friday before the House was prorogued. The Minister was anxious to get the Bill; indeed, he even gave us two amendments. My noble friend Lady White and I were accorded that at least.
446 In the course of my remarks on that occasion, I warned noble Lords that to adopt such a procedure could lead to difficulties. By and large, we supported the Bill, which had received very considerable scrutiny in another place, and the dilemma that we faced was whether we would keep the Bill or whether we would lose it, which we were not happy about. It was an uneasy dilemma. We may not have resolved it in the correct way, but that is the fault of all of us.
There is a very real danger that legislation, particularly if it is of a technical nature such as this, when it is enacted in haste, can cause Parliament and litigants to repent at leisure and sometimes at very considerable cost. This situation could be such a case.
I raised the question of national significance in the debate on Friday 13th March. (Col. 1524 of Hansard).
Time will tell whether the procedures that were introduced by the Act to replace Private Bills will work. The Minister must take very strong account of sensitivity on the part of the Government in recognising the apprehensions that the new system invokes. There should not be only formal consultations where it is appropriate to have consultations because that is an essential ingredient of the operation; but the Minister should adopt a very liberal view about the need to conduct local inquiries in the light of the legislation—because he has the power to do so. It would be a nefarious practice to cut out all kinds of invigilation. I am not happy about relying on the Minister's fiat. We cannot go behind the legislation except to ask the Minister to ensure that when he discusses matters with his right honourable friend a liberal view is taken about the possibilities of local inquiries where they exist.
I am sure that noble Lords will agree that the worries that were expressed by the noble Lord, Lord Moran, were expressed ably. I had some doubts about the procedure that he invoked; but that point is by the way.
The noble Lord argues that it is wrong to include barrages in the order since they may extend to interests that are far wider than local concerns. The noble Lord is right when he states that serious environmental interests are involved.
Consequently, I should like to ask the Minister some specific questions, particularly in relation to the subject of national significance. If the Secretary of State were to consider that a proposed barrage scheme was wholly or partly of national significance, then he could invoke Section 9. However, the question is, what does national significance mean? Does it mean significance to the United Kingdom as a whole? Does it mean significance to a very wide area? For example, the Principality in this case. Does it mean a substantial part of a wide area like the Principality? Even if the Government considered that the criterion for the application of Section 9 was significant to the United Kingdom, how does the Minister construe the words, "wholly or in part"?
Is it the Government's view that the Minister's decisions in that respect are subject to judicial review? I hope that the Minister will say that it is the Government's belief that any discretion to enable a local inquiry to take place will be exercised liberally.
447 I agreed with my noble friend Lord Callaghan when he cast doubts about the Private Bill procedure. It is extremely cumbersome and expensive; and can, for those reasons, be extremely unfair.
A second reason why it is wrong to talk about barrages generally is that not all barrages would fall within the kinds of considerations that noble Lords have referred to during the course of the debate: some will and some will not. In the circumstances, it is for the noble Lord to respond to the points that have been made as affirmatively and positively as possible.
Two questions have been raised by the Royal Society for the Protection of Birds, which it is appropriate for the Minister to address. In what circumstances will English Nature and other statutory conservation agencies be consulted about a proposal that is promoted under the new procedures? Will the statutory conservation agencies be consulted in every case or only in those cases that are deemed to be of national significance?
The noble Lord, Lord Moran, was entitled to articulate the point of view that he did, and did so well, and we await with interest what the Minister has to say.
§ 6.39 p.m.
The Minister of State, Department of Transport (The Earl of Caithness)
My Lords, this has been a most useful discussion. It would be helpful to the House if I spoke to both of the Transport and Works orders. I shall explain why we need the orders and then respond to points made by noble Lords, in particular those of the noble Lord, Lord Moran, concerning the Transport and Works (Description of Works Interfering with Navigation) Order.
§ Lord Clinton-Davis
My Lords, it would be easier if we were to debate the specific Motion that the noble Lord, Lord Moran, moved rather than to discuss another order which I specifically have not addressed this evening.
§ Lord Campbell of Alloway
My Lords, if I may address the Minister, would it not be more helpful to debate the Motion now on its merits?
The Earl of Caithness
My Lords, I am only too happy to fit in with the wishes of the House. The orders relate to the same principle and I am very happy to follow that procedure.
There were two thoughts in my mind as I listened to noble Lords. First, I thought that we were having a Second Reading debate on the Transport and Works Act; secondly, I noted the specific reference to barrages.
My noble friends Lord Renton and Lord Campbell of Alloway had much to say about the first issue. My noble friend Lord Renton challenged the basis of the Transport and Works Act 1992 and my noble friend Lord Campbell of Alloway stated that it was the death knell of the Private Bill procedure. I was surprised that my noble friends, who follow such matters with great 448 care, did not tell your Lordships a little of the history of the Transport and Works Act. I should like to jog your Lordships' memories.
In 1988 a Joint Committee of both Houses of Parliament looked at the Private Bill procedure. It concluded that Private Bills were no longer the appropriate mechanism for authorising proposals that are essentially for works and associated land acquisition. It proposed the establishment of a non-parliamentary authorisation procedure particularly for railways, tramways and harbour measures. That report was discussed in your Lordships' House during a debate in the name of the noble Lord, Lord Bancroft. The following year, 1990, the Government issued a consultation document, to which my noble friend Lord Howe—I see that he is no longer in his place, but he was when my noble friend Lord Renton spoke—put his name. That document set out proposals for a new order-making procedure.
I refer your Lordships to Chapter VI and to the scope of the new order-making procedure where it refers in a number of paragraphs, 49 and 51 in particular, to the word "barrages". I would reply to the noble Lord, Lord Callaghan, by quoting part of Paragraph 51:Instead the Government considers it preferable to draft the legislation establishing the order making procedure covering rail and light rapid transit proposals in such a way that it can be extended by subordinate legislation for use to authorise other works projects such as barrages and canals which would otherwise require approval by means of a private Act of Parliament".Although I have some sympathy with the noble Lord, Lord Callaghan, when he says that often these things are put in as an afterthought, I have to say to him on this occasion that he is wrong. The matter was carefully considered and reference was made to it in the consultation document.
A wide range of interests were consulted: we had over 106 replies. We consulted the RSPB. The National Rivers Authority, the British Marine Industries Federation, the National Federation of Fishermen's Organisations and the National Federation of Anglers received the consultation documents. From my experience as Minister for the environment and the countryside I can assure your Lordships that not one of those organisations is shy in coming forward when it has a point of view to put. But none responded.
The National Federation of Anglers also received copies of the application rules and the draft guidance on the order-making procedure. The federation did not respond to either. Although the noble Lord, Lord Moran, waxed lyrical about the question of fish, it surprises me that the noble Lord takes one view and the National Federation of Anglers takes a different view or does not share the same concerns.
The overall response to the consultation paper was broadly to welcome the principle of replacing the Private Bill procedure with an order-making system, which was seen as more accessible and more open. These proposals were embodied in Part I of the Transport and Works Bill.
My noble friend Lord Campbell of Alloway said that it came as a complete surprise to find barrages in 449 the order. But they were mentioned in Committee in the Commons. They appeared in the Notes on Clauses when the Bill was presented to your Lordships, and it was made clear that the Act would extend through the power in Section 4 to works interfering with navigation, including barrages.
§ Lord Clinton-Davis
My Lords, would the noble Earl give way? He refers to Notes on Clauses. It is not within my recollection that those Notes on Clauses were made available on that occasion. I could be wrong and I stand to be corrected, but I do not think so.
The Earl of Caithness
My Lords, my advice is that they were made available, and also that copies were in the Library and, for all I know, are probably still in the Library. As your Lordships will know, and as the noble Lord, Lord Clinton-Davis, reminded us, the Transport and Works Act was approved with a large measure of cross-party support in both Houses. Indeed the noble Lord, Lord McNair, supported it, as did the noble Lord, Lord Clinton-Davis. Naturally, they raised specific points of detail, but the Bill that did away with the Private Bill procedure, which is anathema to my noble friends, was given a large measure of support across the House. I therefore have difficulty in responding to my noble friend, given the full history of the case before us.
The new procedures are being brought into force on 1st January. A promoter will apply, with a draft order, to the relevant Secretary of State. Publicity must be given. Objections can he made. The Secretary of State will consider the proposals, generally after holding a public inquiry. Where appropriate the Secretary of State will make the necessary order which will authorise the land acquisition and the works. Where the Secretary of State considers the scheme to be of national significance, the proposals will be considered by both Houses at an early stage. The scheme will go on for further consideration only —and I stress that word—if both Houses approve a suitable resolution.
Part I of the Act provides that the system can be used for authorising orders relating to railways, tramways, trolley vehicles and inland waterways. The Act also provides for the Secretary of State by order to prescribe descriptions of works which interfere with navigation and modes of guided transport. Once prescribed by order, the new procedures will then apply to works of these kinds. The two orders before the House have this purpose. They give practical effect to the intention in the Transport and Works Act to deal with such matters under the new procedures.
The Description of Works Interfering with Navigation Order prescribes, at Article 2, 10 classes of works which may interfere with navigation. The scope of the classes is more fully set out in the interpretation at Article 3. We consulted widely about the content of this draft order and the draft reflects the responses.
The noble Lord, Lord Moran, has explained why he wants this order withdrawn and a fresh one substituted, excluding the description "barrages". I must begin by saying that I share his view about the need for the most careful examination of proposals for works which could have significant environmental 450 consequences and which might interfere with water supplies or with migrating fish. But I believe that the best way of ensuring that full and open consideration is given to such proposals is by putting them through the procedures rather than by excluding them from this order.
The noble Lord has shown today, and in earlier debates on the proposed barrages on the River Usk and in Cardiff Bay, his belief that proposals should be fully thought through. Again, I agree with him. But I also notice that on those very Bills the noble Lord seemed to question whether the Private Bill procedure was the right procedure. The noble Lord, on the Cardiff Bay Barrage Bill, referred somewhat critically to what he considered the lack of scrutiny of the second Private Bill by the Select Committee. During the debate on the River Usk Barrage Bill on 13th March last year he made reference to the large sums of money that petitioners had to find to brief counsel to appear before the committee. The procedure that we are now proposing with a public inquiry serves the interests of the noble Lord better than the Private Bill procedure, where he quite rightly has drawn attention to some defects.
Under the new procedures a promoter is required to pre-notify—that is, to inform prior to making an application—a host of relevant bodies. The bodies are set out in Schedule 2 to the Transport and Works (Applications and Objections Procedure) Rules 1992 which are to come into force on 1st January.
The promoter has to serve such notice, for example, for works affecting foreshore, on the Crown Estate Commissioners, the National Rivers Authority, the Ministry of Agriculture, Fisheries and Food in England or the Secretary of State in Wales, and on the Duchies of Cornwall and Lancaster. For works affecting a river, he has to serve notice on the National Rivers Authority. For works causing or likely to cause an obstruction to the passage of fish, he has to serve notice on the Ministry of Agriculture, Fisheries and Food or, in Wales, the Secretary of State. He is required to consult the local planning authority. He is strongly advised, in guidance to be published shortly, to consult all organisations who are likely to be interested or affected.
Then, on making his application, which must be in full (not in outline) the promoter has to copy it to a wide variety of people and inform others, including, for example, for matters affecting foreshore, river, or waterway, the Nature Conservancy Council for England, and, in Wales, the Countryside Council for Wales.
In most cases, and certainly for barrage schemes, the promoter will have to provide with his application an environment statement. That is something of which I am sure the whole House would approve. The promoter has to advertise the application and state where objections should be sent.
I turn to an issue raised by the noble Lords, Lord McNair and Lord Callaghan. A public inquiry will be held in all cases where there are more than two or three simple objections or where cross-examination is required. The order is worded in such a way as to prevent unnecessary delay where there are no 451 objections. For instance, if a statutory body wished to improve visibility at a corner requiring the compulsory purchase of three feet of land held in trust, the trust might well want a compulsory purchase order notice served on it. However, I assure your Lordships that where there is to be cross-examination or where there are more than two or three simple objections to a construction such as a major barrage, there will be a public inquiry. Where an inquiry is held objectors will be able to put their concern and objections to the inspector and the promoter will need to respond to those concerns. The inspector will report to the Secretary of State on the inquiry and make his recommendation. The Secretary of State will consider the application, the environmental statement, the objections, the report of the inquiry and the inspector's recommendation before reaching his decision.
Where the Secretary of State thinks a project is of national significance there is an important additional procedure. In such cases, the proposals must be put before both Houses on a Motion moved by a Minister. If either House rejects the Motion the proposed order will fall. There are no specific criteria for deciding what is an issue of national significance; it is a matter for the Secretary of State alone. It is envisaged that the issues will involve matters of concern to the country as a whole.
The noble Lord, Lord Moran, asked whether a project of national significance would limit the function of the House. No, the House will have full application available and will not be restricted in discussing any aspect of the proposal, whether economic, environmental or any other—
The Earl of Caithness
My Lords, I understand that it will be put forward by the Minister on affirmative resolution in both Houses. The assent of both Houses will be required before the matter can go forward. If, for instance, this House in its wisdom decided that the matter should not go forward that will be the end of it.
Perhaps I may answer a specific point asked by the noble Lord, Lord Bridges, about the extent of the ambit of the Act over waters and legislation governing them. The new procedure can amend private or local Acts in exactly the same way as the present Private Bill procedure regarding rights over water and banks.
The procedure that I have outlined is no slipshod easy route to obtaining statutory authorisation to acquire land and to construct works. All interests are to be given full opportunity to be heard. I say to the noble Lord, Lord Moran, that the proposed procedure is the right way to ensure that the promoter consults and informs early, develops his proposal in full, carefully examines environmental effects and responds to objections before the Secretary of State (taking all these matters into account) decides the matter.
That is broadly the same procedure which extends to new roads at present. Would your Lordships be 452 consistent in trying to take out barrages; they would then be the only category of works for which a Private Bill is needed? Your Lordships would be more consistent to change the whole of the legislation relating to roads because that came before your Lordships in a Private Bill procedure. That would the the logical conclusion of what was said earlier. But it goes completely contrary to what the Committee of both Houses stated: that the Private Bill procedure ought to be changed.
I find it hard to believe that the existing Private Bill procedure is a better way of examining a barrage proposal in proper detail than the procedure which I have outlined. Indeed, I go further; if one takes out barrages one ought to take out the whole order. There is no consistency between isolating one item and the other. I have sought to explain in full detail why we believe it right that, on the basis set out by the Joint Committee of both Houses, the matter should be taken forward under the new procedure rather than the Private Bill procedure.
§ Lord Campbell of Alloway
My Lords, before the Minister sits down, I wish to thank him for his detailed exposition. I found his speech convincing. The fact that Notes on Clauses with reference to the barrage were available when the matter was debated changes my opinion. The Minister has made a reasonable case to my satisfaction.
§ 6.55 p.m.
§ Lord Moran
My Lords, I am grateful to the Minister for his comments. Perhaps I may first answer his question about whether I disagree with the Private Bill procedure. I do not do so. He gave two examples and quoted what I said about the Cardiff Bay Barrage Bill. I expressed some disappointment with what our Select Committee had decided and recommended but that in no way involved questioning the whole procedure. As regards the Usk Barrage, I expressed concern about the burden on petitioners who had to go through the whole process of making petitions against two successive Bills. I thought that was hard on them but, again, I was not questioning the general procedure.
I wish to thank all noble Lords who have taken part in the debate. There were two powerful speeches from the Government Benches from the two distinguished legal luminaries. There were other distinguished speakers from all sides of the House, including the noble Lord, Lord Callaghan, the noble Baroness, Lady White, and my noble friend Lord Bridges, who expressed concern about what the Government are doing. Whether noble Lords are for or against barrages, everyone appears to believe that the powers are of great importance and significance. It seems wrong to many of us that such great and unfettered powers should be given to the Secretary of State, whoever that is, and that too much is being taken away from Parliament.
The noble Lord, Lord Callaghan, asked reasonably that the Minister should undertake to reflect on the 453 order and on what had been said in your Lordships' House. I understand, however, that the Minister does not propose to do so. In the light of that, and contrary to what I thought when I came into the Chamber, I believe it right to take the opinion of the House.
§ 6.59 p.m.
§ On Question, Whether the Motion shall be agreed to?
§ Their Lordships divided: Contents, 20; Not-Contents, 67.
|Division No. 1|
|Beaumont of Whitley, L.||Napier and Ettrick, L.|
|Bridges, L. [Teller.]||Norrie, L.|
|Brookeborough, V.||Pender, L.|
|Elis-Thomas, L.||Russell, E.|
|Fitt, L.||Shannon, E.|
|Harrowby, E.||Shaughnessy, L.|
|Kimball, L.||Shrewsbury, E.|
|Lawrence, L.||White, B.|
|Masham of Ilton, B.||Winchilsea and Nottingham, E.|
|Moran, L. [Teller.]||Wise, L.|
|Aldington, L.||Hesketh, L. [Teller.]|
|Astor, V.||HolmPatrick, L.|
|Attlee, E.||Hooper, B.|
|Auckland, L.||Hothfield, L.|
|Bellwin, L.||Howe, E.|
|Belstead, L.||Jeffreys, L.|
|Blatch, B.||Long, V.|
|Blyth, L.||Lucas of Chilworth, L.|
|Boardman, L.||Margadale, L.|
|Borthwick, L.||Marlesford, L.|
|Boyd-Carpenter, L.||Newall, L.|
|Brabazon of Tara, L.||Orkney, E.|
|Brain, L.||Orr-Ewing, L.|
|Cadman, L.||Oxfuird, V.|
|Caithness, E.||Park of Monmouth, B.|
|Campbell of Alloway, L.||Platt of Writtle, B.|
|Carnegy of Lour, B.||Rankeillour, L.|
|Chalker, of Wallasey, B.||Reay, L.|
|Colnbrook, L.||Rodger of Earlsferry, L.|
|Colwyn, L.||St. Davids, V.|
|Cross, V.||Saltoun of Abernethy, Ly.|
|Cumberlege, B.||Stanley of Alderley, L.|
|Denton of Wakefield, B.||Stewartby, L.|
|Elibank, L.||Strange, B.|
|Elles, B.||Strathclyde, L.|
|Elliott of Morpeth, L.||Strathmore and Kinghorne, E. [Teller.]|
|Flather, B.||Sudeley, L.|
|Geddes, L.||Thomas of Gwydir, L.|
|Goschen, V.||Trumpington, B.|
|Greenway, L.||Ullswater, V.|
|Gridley, L.||Vaux of Harrowden, L.|
|Harmar-Nicholls, L.||Wade of Chorlton, L.|
|Henley, L.||Wakeham, L.|
§ Resolved in the negative, and Motion disagreed to accordingly.