British Waterways Bill [H.L.]

HL Deb 04 March 1992 vol 536 cc920-71

8.19 p.m.

Proceedings after Third Reading.

In the Preamble:

Lord Cornwallis moved Amendment No. A1: Page 1, line 7, after ("where") insert ("it would not be reasonably practicable for ").

The noble Lord said: My Lords, with the leave of the House I should like to make one or two opening remarks in respect of the 19 amendments which are down in my name. In order to save the time of the House it may be helpful if I say that to the best of my knowledge and belief all of the amendments are agreed amendments. Therefore I hope that the House will not consider it discourteous if I introduce them with the minimum of preamble, with the exception of Amendment No. 19L which needs considerable explanation.

In moving Amendment No. A1, I should like to speak also to Amendments Nos. A2, 5A, 5F and 5L. At present the Bill turns entirely on the convenience of the British Waterways Board. The purpose of the amendments is to strengthen the conditions under which the board can enter on to land for the purpose of carrying out maintenance works to canals. It puts the onus on the board to prove that it is not practicable for the works to be carried out in any other way. I believe that the noble Earl is willing to accept the amendments. I beg to move.

The Deputy Speaker (Lord Boston of Faversham)

My Lords, in view of the fact that the noble Lord has spoken also to Amendment No. 5F, although I shall call that amendment in due course when we come to it, perhaps I should point out at this stage that if Amendment No. 5F is agreed to I cannot call Amendment No. 5G.

Lord McIntosh of Haringey

My Lords, I am not sure under what rules we are working in this consideration of the Bill because I have not before encountered consideration after Third Reading. I was going to say that it would be enormously helpful if we had a copy of the grouping of amendments but we now have one. I am most grateful.

Earl Jellicoe

My Lords, I rise to confirm what the noble Lord, Lord Cornwallis, said. As the sponsor of the Bill, I confirm that the group of amendments is acceptable.

Lord Burton

My Lords, I should like to add my congratulations to the noble Lord. I know that he has struggled hard for a long time to achieve these improvements to the Bill. They represent a marked improvement. I should also like to thank my noble friend Lord Jellicoe for accepting the amendment.

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. A2: Page 1, line 8, leave out ("cannot conveniently") and insert ("to").

On Question, amendment agreed to.

Clause 2 [Interpretation]

[Amendments Nos. 1 and 2 had been withdrawn from the Marshalled List.]

The Deputy Speaker

My Lords, if Amendment No. 3 is agreed to I cannot call Amendment No. 3A.

Lord Burton moved Amendment No. 3: Page 2 line 40, leave out from ("1961") to end of line 41.

The noble Lord said: My Lords, in moving Amendment No. 3, it may be for the convenience of the House if I speak also to Amendments Nos. 3A, 4, 5, 5B, 5E, 5H, 6 to 11, 12, 20, 20A, 21 and 21A.

As recently as Monday the agreement of the British Waterways Board was finally secured to the exclusion of the four big lochs on the Caledonian Canal. As they represent more than half of the operational waterways in Scotland the position regarding my amendments—which I have had down for some time—has changed markedly. The situation is very much improved. For having secured that alteration I am very much indebted to my noble friends Lord Gray of Contin and Lord Elton. I should also like to give a special mention to Mr. Forbes Rennie, a lawyer from the Highland Regional Council. All have expressed their gratitude to my noble friend Lord Jellicoe, without whom it would have been very difficult to make this progress.

I should also like particularly to thank Mr. Rennie, who has consistently pleaded the case of the Highland Regional Council and the people of the North in a forceful and eloquent manner since he came on the scene on 9th January this year. I know that my noble friend Lord Gray, who has another appointment and is unable to be present tonight, would like me to add his thanks to Mr. Rennie and to my noble friend Lord Jellicoe.

I should like to add one more and very deserving thank you to Mr. Keith, the Clerk who deals with Private Bills in this House. He has achieved the impossible. He has worked very long hours on the Bill, often at short notice. He has shown great courtesy and efficiency. I am sure that other noble Lords are also indebted to him.

I am sorry that the groupings list did not reach the Front Bench on the other side of the House. It was produced at the last minute, with the help of Mr. Keith and my noble friend Lord Jellicoe. We should have tried to provide noble Lords opposite with a copy earlier.

By securing the removal of Loch Lochy, Loch Oich, Loch Ness and Loch Dochfour from the Bill a large number of problems have been solved. However, that has rather pulled my feet from under me so far as regards the removal from the Bill of the rest of Scotland, where I fear this nasty little Bill will create problems and probably litigation. The progress made by the inclusion of Amendment No. 21A is, however, a major step forward. Perhaps, on reflection, the British Waterways Board will realise that it would be well advised to revert to the first draft of the Bill which it produced in November 1990 in which Scotland was not included.

In going through the Bill noble Lords may have noticed how many times the various legal bodies —lands tribunals, magistrates, sheriffs, sheriffs principal, High Courts, county courts and so on—are mentioned. So far as I can see the Bill may well involve a great deal of litigation. That is one of the reasons why I should be very happy to see Scotland removed from the Bill. Even if it applies to England we would be well advised not to have the measure in Scotland.

Mr. Coyne, the British Waterways Board manager for Scotland, at a very well attended meeting at Spean Bridge this winter, said that the Bill would have very little effect in Scotland. Now, with over half the Scottish waterways removed, why not remove the rest? That would mean that a number of further drafting amendments would be required, even after what we do tonight, to remove Scotland from the Bill—and probably avoid much ambiguity and litigation as well. That, with any luck, should be achieved with little or no loss to the British Waterways Board.

The British Waterways Board has based its case for retaining Scotland in the Bill on the argument that Scotland would be deprived of the safety provisions in the Bill. However, I wonder whether the British Waterways Board is the responsible body for operating the safety provisions. There is already a Health and Safety Executive for that purpose. Over the 170 years of the operation of the canal I cannot find any instance which would have been prevented by the provisions of the Bill. Indeed, if the British Waterways Board is to be given licensing powers for boats and jetties and an accident occurs in relation to something which has been licensed by the board, would the board accept liability for that accident?

I would go further and say that the British Waterways Board is not a satisfactory body to operate safety precautions. I shall give one instance. There is a public right of access over Loch Laggan. There used to be safety netting alongside the walkway. When the locks were repainted in 1985 the netting was removed and has never been replaced. A man who was walking over the locks one stormy night slipped, went under the railing and was very nearly drowned. To my mind it was totally irresponsible not to replace the netting (if they had to remove it at all) after they had repainted the locks. I shall give the noble Lord another instance. British Waterways Board's lock lifting barge was sunk not once but twice in recent years through the inefficiency of that board. I understand that the last salvage operation cost over £17,000. There are other instances, one of which is leaking canal banks.

Also there are now a number of power boats riding around, sometimes with skiers behind them. I have seen them riding the bow wave of pleasure boats on the canal. It appears that no action has been taken to stop that practice. That is a far more dangerous practice than those for which safety precautions feature in the Bill.

The 1804 Act which set up the canal gave rights to the landowners to erect wharves and use pleasure boats. Why should the current British Waterways Board seek to remove those rights when it only has rights of navigation? Written into the terms setting up the canal, British Waterways Board has the right to remove anything which blocks the navigation. I cannot see why an attempt is being made now to introduce further action.

Perhaps I may now move on and deal with another issue. British Waterways Board has no fishing rights whatsoever in the Caledonian Canal as those rights were specifically reserved by the 1804 Act which established the canal. The Act stated that the rights of landowners to the fishery were preserved. At a meeting on 9th January it was pointed out to Mr. Duffy, the solicitor and secretary to the British Waterways Board, and to Mr. Coyne, the regional manager for Scotland, that the fishing in the Caledonian canal was nothing to do with them and that the salmon fisheries were managed by fishery boards. That apparently was news to the canal managers, who had never heard of fishery boards. The Ness District Fishery Board took up the matter with Group Captain Proudlock, who is the secretary of the Association of Scottish District Salmon Fishery Boards. In reply to the Secretary, in a letter of 30th January, Mr. Coyne stated: The Bill is designed to limit unexercised rights of salmon fishing ‖ This is an issue in parts of England".

It is not a problem in Scotland. The only problem that is likely to arise is if the Bill is passed and gives rights to the British Waterways Board to meddle in fishing matters which currently are nothing to do with it. The British Waterways Board not only has no fishing rights in the canal but is specifically instructed not to interfere with migratory fish. It only received power to construct a navigation and to maintain the tributaries of the waterway. That is an instruction with which I am afraid it has singularly failed to comply. Those tributaries have not been touched, though the pitching has collapsed, for some time.

The British Waterways Board is specifically instructed not to interfere with migratory fish, yet it constantly drops the level in the River Oich and the River Ness by diverting water down the canal. Again that is in contravention of the regulations. One really does not want to have more regulations in Scotland. It is clear that the Bill was designed for England. Other problems may occur and some clauses in the Bill may remove adjacent proprietors' rights and interfere with the work of the fishery boards.

The Royal Yachting Association has expressed a wish to see the Crinan as well as the Caledonian Canal removed from the Bill. I believe that everybody else in Scotland would be happy with that. The British Waterways Board would certainly improve its tarnished image were it to make the magnanimous gesture of removing from its scope the whole of Scotland. That will have to wait for the passage of the Bill in another place. I do not feel that this is the moment to divide your Lordships' House on this issue. I put down those points largely as markers for further discussion. I should like to thank my noble friend for accepting the amendments, which he did after considerable pressure. I beg to move.

8.30 p.m.

Lord Brightman

My Lords, I do not think that it is for me, as the former chairman of the Select Committee, to take any side at all on the debate at this particular point. However, I should like to express a little mild regret that the objection to the inclusion of Scotland was not raised in the form of a petition against the Bill. That would have been the proper course. The committee would then have heard evidence on the subject and reported its conclusions to your Lordships.

The disadvantage of the question being raised now is that your Lordships are being asked to decide an extremely important matter without having any evidence whatever on it. The whole point of the Select Committee procedure in the case of a Private Bill is that evidence is taken by the committee and is available to noble Lords. By taking the point now and not by way of a petition, the mover of the amendment deprives your Lordships of evidence which they ought to have had.

I have heard it said that the Bill was not adequately publicised in Scotland. In fact there were notices in the Glasgow Herald of November 1990, the Scotsman of December 1990 and the Edinburgh Gazette of November 1990. Copies of the Bill were deposited in the Scottish Office in London in December 1990.

The Earl of Balfour

My Lords, I should like to raise one or two points. I feel that it is the duty of this House to pass the Bill. Before we go any further, I should like to ask my noble friend Lord Burton when he replies to the amendment not to to press it because Amendment No. 3A in the name of my noble friend Lord Jellicoe, who I understand is one of the promoters of the Bill, is probably the more important of the two amendments.

In this group of amendments I should particularly like to speak to Amendment No. 12 which refers to Clause 11 and Amendment No. 21 which refers to Clause 37. I must point out that I think that the British Waterways Acts of 1971 (Chapter XVIII) and 1983 (Chapter II)do not extend to Scotland. Therefore, Clause 11 which deals with houseboat certificates with its Schedule 1, Clause 12 (certificates and licences) with Schedule 2, Clause 13 (amendment to Section 13 of the 1971 Act), subsection (2) of Clause 20 (penalties and enforcements), Clause 31 (amendment to Section 12 of the 1983 Act) and Clause 32 notices could apply to Scotland. But as a matter of fact I do not think that they could he enforced in Scotland.

I only learned about this Bill very recently but I feel that the promoters need carefully to bear in mind that point. When the Bill goes to another place a number of amendments will need to be introduced to make the Bill rather more satisfactory.

Lord Elton

My Lords, perhaps my noble friend will forgive me for interrupting him—I wish no impertinence—but if I correctly understand my noble friend Lord Burton, he will not press the amendments and the alternatives proposed by my noble friend Lord Jellicoe are likely to get into the Bill. In that case, the points that my noble friend now makes are somewhat academic and could perhaps be left to a more appropriate stage of the Bill.

The Earl of Balfour

My Lords, I have only a few more remarks anyway. I want to be as brief as possible. The only other point raised by my noble friend Lord Burton which I think is worth mentioning and which has been of concern to me for a number of years is the remainder of the old Forth and Clyde Canal which goes through a district in Glasgow called Bowling. It is always a tragedy to me that every year two or three children, and a number of animals, drown in that canal. The locks are falling to pieces; the sides are collapsing. It is a disgrace. I realise that it would cost a vast fortune to improve them. However, that is one of the tragedies that exists. It is worth taking a few moments to mention the position in your Lordships' House.

Earl Jellicoe

My Lords, I speak to the amendments moved by my noble friend Lord Burton and those standing in my name on the Marshalled list. I speak also to two important amendments, Amendments Nos. 20A and 21A which stand jointly in the name of my noble friend Lord Gray and myself. Perhaps I may crave the indulgence of the House. I may speak a little longer on this amendment than on any other amendment, because there are important matters that I wish to put before your Lordships.

The first is a general point. Although the highlands and lowland waterways are remote from the main canal network in Britain, they are nonetheless a vital part of British Waterways' whole canal system. The lovely Caledonian and Crinan canals—the two highland waterways—are particularly important. None of us seeks to argue with that. They represent vital short cuts for vessels that otherwise would have to make long detours; around the northern parts of Scotland in the case of the Caledonian canal and around the Mull of Kintyre in the case of the Crinan canal.

The board attaches great importance to those waterways. It also attaches great importance to the criticisms that have been voiced by two of my noble friends. However, it regards those waterways, as in the case of the two lowland canals, as an integral part of the nation's waterway system. That also applies to the lowland canals. The further powers which British Waterways seeks in the Bill are thus entirely relevant to Scotland and are just as important north of the Border as they will be in England and Wales. The need for the maintenance of the canals in water is the same throughout the country. Emergencies can equally arise on the man-made section of the highland canals as they can on the lowland canals and on waterways elsewhere in the United Kingdom. The powers of entry that the board seeks by the Bill are thus vital in the interests of securing the safety of those on and alongside the canals in Scotland. I believe —1 have a small house in Scotland—that Scottish safety is just as important as English or Welsh safety.

My noble friend Lord Burton referred to the special characteristics of the four natural lochs on the Caledonian Canal: Loch Lochy, Loch Oich, Loch Ness, and Loch Dochfour, which I understand lies below my noble friend's house. Thanks to his generosity and hospitality—I appreciate what he said about myself—discussions took place there recently between representatives of the board and of the Highland Regional Council under the auspices of the Caledonian Canal Action Group comprising those with local interests, including my noble friend Lord Burton.

Echoing a little what the noble and learned Lord, Lord Brightman, said, I believe that it is an awful pity that those concerns and anxieties which have been expressed by my noble friends and others about the inclusion of Scotland and the Scottish canals in the Bill were not presented in time so that they could have been carefully considered by a very experienced Select Committee under the experienced noble and learned Lord, Lord Brightman. However, that is all in the past.

Recently a great deal of discussion and consultation has taken place between the interested parties. My noble friends Lord Burton, Lord Gray, Lord Elton and Lord Kinnoull have played a significant part in that, as have the Highland Regional Council and the British Waterways Board. The British Waterways Board remains firmly of the view, as I do, that the canalised sections of the Caledonian Canal and other Scottish canals should remain within the provisions of the Bill for the reasons on which I have already touched; namely, that it would be wrong if the safety considerations which underlie the Bill were not to apply to the Scottish canals as they do to the Welsh and English canals.

However, the Caledonian canal is very special indeed, sui generis, in that a large part of it—as my noble friend Lord Burton said, the largest part—flows through four large areas of open water; namely, the four lochs. That special characteristic of the Caledonian canal is duly recognised, I hope, in Amendments Nos. 20A and 21A to Clause 37 which stand in the joint names of my noble friend Lord Gray of Contin and myself. Those amendments accordingly disapply the provisions of the Bill from the four lochs to which I have referred. The amendments flow from the board's recognition, following the intense consultations of which I have spoken and which included the Scottish Office, that those natural areas of water and the uses to which they have customarily been put place them in a special category.

So much for the two major amendments which take out the four lochs from the provisions. Trespassing again, I fear, on your Lordships' indulgence perhaps I may mention the five technical amendments we are discussing. They are Amendments Nos. 3A, 5, 5B, 5E and 5H. In addition to correcting an error in a reference to sections of the Land Compensation (Scotland) Act 1963, they draw on Scottish law for appropriate definitions for the purposes of the application of Part II of the Bill for Scotland.

A typical example of the technical amendment which was found necessary is that a definition of "road" for the purposes of Scottish law is needed because the English word "highway" is unknown in Scottish legislation. It is curious that in England a road is a highway. I believe that the Scots are quite right to call a spade a spade and a road a road. That is what we propose to do in the Bill by these amendments, among others.

I listened carefully to what my noble friend Lord Balfour said on the legal point. He had given me some notice of it beforehand. Not being a lawyer I speak very much to correction. I agree that the British Waterways Act 1971 as originally passed did not apply to Scotland. However, subsequently Part III dealing with houseboats, and much of Part IV which contains special provision applicable to pleasureboats and houseboats, was applied to Scotland by Section 9(4) of the British Waterways Act 1975. That is the position as I understand it but I stand to be corrected by the experts. It would have been nice if the Select Committee of the noble and learned Lord, Lord Brightman, could have looked into such matters. However, that is by the way.

I turn to salmon fishing. The provision does not apply to the four lochs because they are excluded. When the Bill goes to another place the question of salmon rights could well receive further attention. That at least is my feeling.

I am glad that after intensive consultation those concerned reached agreement on the exclusion of the four big lochs from the Bill. I believe that the canalised portions of the Scottish canal system should remain firmly within the provisions of the Bill, as my amendments would allow. I hope that my noble friend will not press his amendments and that your Lordships will agree to my amendments, which represent fairly considerable concessions.

Lord Burton

My Lords, I congratulate the noble and learned Lord, Lord Brightman, on the hard work that he undertook in the committee. I express gratitude to him as far as it went. A number of points have now been raised which should have been dealt with by his committee. I am afraid that the matters did not come to the surface as regards Scotland until November last year.

The Edinburgh Gazette is rather dry reading and I am afraid that it may have been missed. I cannot speak for the Scottish Office but I know that the Highland region received from the British Waterways Board only a draft of Part II of the Bill. Its representatives told me that they replied to the British Waterways Board but received no response. Again, that is a matter in the past.

The amendment will not be pressed because it is consequential to Amendment No. 21. My noble friend Lord Balfour was correct in some of the points that he raised about the Bill not applying to Scotland. As usual, he has looked into the Bill's details most carefully. Clearly that matter will have to be looked at in the future, although not tonight. In moving the amendment I mentioned that further drafting amendments are necessary before the Bill is satisfactory in Scotland. It may well be that those matters can be added. Indeed, the Scottish Office has some amendments that it wishes to table. I know that they have been lodged with the British Waterways Board and it is a pity that they have not been put forward this evening. My noble friend Lord Balfour was also correct about the safety of the Forth and Clyde canal. Indeed, his arguments added strength to mine; that perhaps the British Waterways Board is not the best body to look after safety on those canals.

I wish to thank my noble friend Lord Jellicoe. I was pleased that he said that the Scots are right to call a spade a spade. I am not sure of all the legal technicalities but I believe that these points needed tidying up. I understand that if it had not been for the lawyer for the the Highlands region drawing attention to some of the points, the Bill would not have applied to Scotland because the wrong phraseology is used. I am pleased to hear that he believes that the fishing rights should receive further attention in the other place. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Jellicoe moved Amendment No. 3A: Page 2, line 41, leave out ("3(2) to (9) and 5") and insert ("9 (2) to (5) and 11").

On Question, amendment agreed to.

[Amendment No. 4 not moved.]

Earl Jellicoe moved Amendment No. 5:

Page 3, leave out lines 9 to 13 and insert (""owner" means—

1. (a) in relation to any land in England or Wales, a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack-rent of the land or, where the land is not let at a rack-rent, would be entitled if it were so let; and
2. (b) in relation to any land in Scotland, the person (other than a hereditable creditor not in possession) for the time being entitled to receive, or who would, if the same were let, be entitled to receive, the rents of the land, and includes a trustee, factor, tutor or curator; and").

On Question, amendment agreed to.

Clause 4 [Entry on to land in cases of emergency]:

Lord Cornwallis moved Amendment No. 5A: Page 3, line 40, leave out ("the operations cannot conveniently") and insert ("it would not be reasonably practicable for the operations to").

On Question, amendment agreed to.

Earl Jellicoe moved Amendment No. 5B: Page 3, line 41, after ("highway") insert ("or, in Scotland, a road").

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 5C: Page 3, line 48, leave out ("completion of those operations") and insert ("entry on that land").

The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 5D, 5J and 5K. Amendment No. 5C brings forward the time lapse after which the board must notify the owner and occupier that it has entered the owner's or occupier's land for the purpose of carrying out emergency operations. There could be occasions when emergency operations are of considerable duration. Therefore, it seems right that there should be a relatively short time limit within which the owner and occupier must be notified.

Amendment No. 5D provides that notice must be given to the occupier of his right to claim payment for any inconvenience caused by the entry on to the land. That right is separate from any claim that the occupier may have in respect of any damage caused or other reasons there may be for compensation. If Amendment No. 5D is agreed to Amendment No. 5K is consequential and brings the Bill into line.

Amendment No. 5J provides for a form of counter notice, to be included with the notice sent to the owner and occupier, of the intention to enter the land for the purpose of carrying out maintenance work other than in an emergency. The inclusion of a form of counter notice with the original documentation will simplify and expedite the whole process to the benefit of both parties. It provides for a standard form of the counter notice which can be given under subsection 4(a) of Clause 5 of the Bill should crop readiness, soil conditions and so forth make access objectionable at the time of notice of entry. I beg to move.

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 5D: Page 4, line 3, after ("of) insert ("the occupier to claim payment for such entry and the right of").

The noble Lord said: My Lords, I beg to move.

Lord Thomas of Gwydir

My Lords, in order that there is no doubt, should not the amendment make clear the fact that the words should be inserted after the second "of"? The word "of" is used twice.

Earl Jellicoe

My Lords, in principle the amendments to which the noble Lord has referred are perfectly acceptable. However, I am inclined to agree with my noble friend Lord Thomas about the word "of".

Lord Cornwallis

My Lords, I have no objection to the change of wording, if that is agreeable to your Lordships.

On Question, amendment agreed to.

9 p.m.

Earl Jellicoe moved Amendment No. 5E:

Page 4, line 4, at end insert ("(3) In this and the following section "road" means any public or private road within the meaning of the Roads (Scotland) Act 1984.").

On Question, amendment agreed to.

Clause 5 [Notice of entry, etc.]:

The Deputy Speaker

My Lords, as I have indicated, if Amendment No. 5F is agreed to, I cannot call Amendment No. 5G.

Lord Cornwallis moved Amendment No. 5F: Page 4, line 8, leave out ("the relevant operations cannot conveniently") and insert ("it would not he reasonably practicable for the operations to").

On Question, amendment agreed to.

Earl Jellicoe moved Amendment No. 5H: Page 4, line 9, after ("highway") insert ("or, in Scotland, a road").

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 5J: Page 4, line 30, after("notice") insert ("including a form of counter-notice for use by the recipient pursuant to the following provisions of this section)").

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 5K: Page 4, line 31, after ("claim") insert("payment for such entry together with").

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 5L: Page 4, line 32, leave out ("the relevant operations cannot conveniently") and insert ("it would not he reasonably practicable for the operations to").

On Question, amendment agreed to.

The Deputy Speaker

My Lords, if either Amendment No. 5M or Amendment No. 5N is agreed to, I cannot call Amendment No. 5P.

Lord Cornwallis moved Amendment No. 5M: Page 5, line 1, leave out ("the relevant operations mentioned in the notice could conveniently") and insert ("it would be reasonably practicable for the operations mentioned in the notice to").

The noble Lord said: My Lords, Amendment No. 5M is similar to Amendments Nos. A1 and A2 and Amendments Nos. 5A, 5F and 5L except that it refers specifically to matters relating to notice. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 5N to 11 not moved.]

Clause 8 [Further provisions as to entry]:

Lord Cornwallis moved Amendment No. 11A:

Page 6, line 36, at end insert ("(5) The Board when they have entered any land pursuant to this Part shall commence the relevant operations for the purposes of which entry was made as soon as is reasonably practicable and shall complete them with all reasonable dispatch. (6) Nothing in this Part shall authorise the Board to enter any land for the purposes of in connection with the development of any land, being land not forming part of any inland waterway or of any works such as are mentioned in paragraph (b) of the definition of relevant operations in section 3 of this Act.").

The noble Lord said: My Lords, Amendment No. 11A is to ensure that once the board has gained entry onto the land it carries out its works with efficiency and speed. It further provides that those powers of entry are clearly for maintenance purposes only and cannot be used in respect of development projects, leisure activities or other works not connected with the maintenance of the waterways.

Amendment No. 11B, which is grouped with this amendment, spells out the method of assessment to be used in agreeing payments for entry onto the land and any compensation which may also become payable. It provides also that a dispute about payment or compensation shall not prevent the board from carrying out its work while the negotiations in regard to any payments are unresolved. I beg to move.

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 11B:

After clause 8, insert the following new clause:

("Payment for entry

(1) The Board shall pay to the occupier of any land upon which entry is made in accordance with this Part a sum in respect of such entry which shall be assessed in accordance with subsections (2) and (3) below.

(2) The sum payable under subsection (1) above shall be such sum as would have been paid if the occupier had entered into an agreement with the Board granting to them rights to enter the land for such period and for such purposes as entry has been made in accordance with this Part and (where entry is made pursuant to a notice of entry)

on such conditions as are specified in any counter-notice and accepted by the Board or imposed by a court on any appeal against a counter-notice.

(3) Part II of the Land Compensation Act 1961, so far as material, shall apply to the assessment of the sum payable under subsection (1) above as though the rights deemed by subsection (2) above to be granted to the Board had been acquired by them compulsorily and in assessing that sum regard shall be had to the degree of inconvenience caused to the occupier by the entry.

(4) Nothing in this section shall require the Board to defer or suspend entry on land or the carrying out of relevant operations while any dispute as to the sum payable under subsection (I) above is determined.

(5) The rights of any person to a payment under subsection (1) above shall be without prejudice to the rights of that or any other person to recover compensation under section 9 (Compensation) of this Act.").

On Question, amendment agreed to.

Lord McNair moved Amendment No. 11C: After Clause 8, insert the following new clause:

("Waterborne maintenance.

For the purposes of discharging their duty under section 105 of the Act of 1968 (maintenance of the Board's waterways), the Board shall make such provision for the maintenance of water borne equipment and other facilities as is necessary to carry out all waterway maintenance works from the waterways themselves except where it is not safe or reasonable practicable to do so.").

The noble Lord said: My Lords, I know that a lot of hard bargaining has taken place and that the noble Earl, Lord Jellicoe, the noble Lord, Lord Elton, and the noble Earl, Lord Kinnoull, have all worked extremely hard in the role of honest brokers to achieve agreement on several issues. I apologise to the noble Earl, Lord Jellicoe, for alarming him at the lack of warning which I gave him about my amendments. That arises from my lack of experience of your Lordships' House and the continuing discussions which I was having with the board's solicitor.

On the question of waterborne maintenance, everyone whom I know and everyone to whom I have spoken who knows the canals well because their working lives are spent on and by the canals is of the same opinion; namely, that for a variety of reasons, none of them romantic or sentimental, it is vital that British Waterways does not abandon waterborne maintenance.

To tell the truth, little enough routine maintenance of any description is carried out on many sections of the canal system. Due to a combination of inadequate dredging and failure to set about repairing defects in locks in a logical way there is frequently unnecessary water loss. Therefore, boats tend to run aground and find it difficult to moor with both ends close to the side of the canal. That is contrary to what canals are all about. There should be enough water in a canal to enable a boat to pass along it.

We see that inadequate water maintenance and management in many regions. I do not have time to enumerate or describe in detail the many accounts of canal users who have spoken to me. However, they know what they are talking about and there are many complaints on this aspect. It is clear from my own observations that many parts of the canal are simply not accessible from land because the topography makes it impossible. What will happen? Will British Waterways not dredge those sections? If a canal presents such difficulties, will the entire stretch of canal not have to be travelled by dredging boats in any event? The fact that boats travel slowly on canals does not mean that a great deal of time is wasted in maintaining them from the water.

It is common knowledge among those who work the canal boats that there is a value in dredging boats passing along the canal because quite often, when the canal boat users ring up British Waterways and say that the canal needs dredging because there is not enough water, British Waterways simply chooses not to believe them. Therefore, the action of the dredging boat going along the canal has a diagnostic value because it actually profiles the canal to some extent. Obviously, if the canal badly needs dredging the boat will come to grief.

It has always been the custom with canals to plan ahead with the maintenance programme for the next year or the year after. In this way routine maintenance tasks can be planned well ahead. Canals do not silt up very fast so one can tell what the next series of tasks will be. These tasks are mainly dredging and bank protection and such defects can usually be easily spotted. One can manage it so that the boats do a series of tasks along a defined stretch of waterway in one season so that they are not dodging between different waterways. That system is quite efficient.

Of course there will be emergencies and other occasions when maintenance from land is necessary. That is provided for elsewhere in the Bill. But in most cases it is cheaper, easier and simpler to maintain the canals from the water. British Waterways seems to forget that it is running a transport system. The waterway itself is a track which is the one that should be used unless it is impossible to do so. When the distinguished canal author and former member of the British Waterways Board, Mr. Charles Hadfield, was asked what he thought of the idea of land-based maintenance, he was appalled. He asked: "How do you maintain a bridge in the middle of a field with no road to it or a canal in a town centre with buildings crowding alongside or the inside of a tunnel and no room to deploy plant?" He said that the cheapest and most efficient way has always been to maintain the canal from the water. The use of the waterway for maintenance is also an encouragement to British Waterways to keep the canals open. The whole system depends on moving boats. I beg to move.

Lord Elton

My Lords, I do not suppose that the noble Lord intends to press this amendment. I hope that something of the kind is regarded with a friendly eye in another place. There may be those who do not have great confidence in some canal users and those who may not have absolute confidence in the management of the canals by the board. Nothing could inspire more confidence than the sight of the board itself being a principal user of the canals.

Lord McIntosh of Haringey

My Lords, I preface any remarks with the usual disclaimer that anything I say from this Dispatch Box represents a personal view as it is not our practice to express a party view on a Private Bill. Nevertheless, I want to express my strong support for this amendment. When the matter was considered at Second Reading last year I indicated my four major areas of concern: first, residential boats; secondly, environmental obligations; thirdly, access; and, fourthly, disposals, with its implications both for the integrity of the waterways and for the continued public obligations of the British Waterways Board.

I believe that this amendment raises in a very acute form the issue of the integrity of the waterways, that of the network and in particular the integrity of the residual waterways which were the subject of an instruction to the Committee by my noble friend Lady White. It is a matter of record—certainly it has been represented as such in representations to the Committee—that there is a different standard for the minimum dredged depth of a canal according to whether the dredging is by land or by water. I understand that the minimum dredged depth for a water dredged canal is 1,220 millimetres, but for land-based dredging it is only 1,050 millimetres. That is a very considerable difference. It affects the continued viability of the residuary part of the waterway network and therefore affects the whole of the integrity of the network. The amendment of the noble Lord, Lord McNair, seeks to put extra but reasonable obligations on the British Waterways Board to pursue water-based dredging and therefore a greater depth wherever possible. I hope very much that the promoters of the Bill will find it possible to accept this amendment.

Lord Burton

My Lords, I also support this amendment. It strengthens the amendment put forward by the noble Lord, Lord Cornwallis. I hope that it will not be necessary for the noble Lord, Lord McNair, to press the matter as I hope that my noble friend Lord Jellicoe will accept the amendment because I believe it is a very good one. The British Waterways Board scrapped its lock-lifting barge fairly recently. The board used to use it on the Caledonian canal and had been doing so for 170 years. The board now tries to carry out repairs to any lock gate, which can weigh up to 25 tonnes, by land-based cranes. Not surprisingly, a crane of that size is liable to do considerable damage in approaching the locks. It really ought to be done from the water, as has been done over the past 170 years. There is no reason why that should not continue and there is no reason why the British Waterways Board should damage neighbouring property when it is quite unnecessary.

Lord Howie of Troon

My Lords, when we discussed this Bill at Second Reading, which I recall with some surprise is almost a year ago, I asked the same questions which the noble Lord, Lord McNair, has now raised. I wondered why it was necessary for the Bill to require great powers to carry out the maintenance from the land side when in fact the traditional and sensible way of dealing with canal maintenance is from the water. I asked whether it was possible that, here and there, the British Waterways Board required to carry out the maintenance repairs from the land side because its maintenance over the years had been inadequate and the waterways were insufficient for carrying out maintenance work of the ordinary kind from the water. Nobody ever answered that question but I dare say it was considered. No doubt it was a slightly unfair question.

I strongly support the noble Lord, Lord McNair, although I hope he will not press the matter tonight. However, when this Bill goes to the other place they should make it part of their consideration that maintenance should be carried out from the water whenever possible and should only be carried out from the land when it is unduly difficult for it to be carried out in the old-fashioned and well-tried way, from the water. I support the amendment.

Lord Brightman

My Lords, I feel it necessary to offer your Lordships a word of caution about this amendment, because I feel some doubt as to whether it is really appropriate. The expressed purpose of the amendment as it is worded is not to compel the board to carry out maintenance work from the water instead of from the bank. That subject is already covered by Clauses 4 and 5 of the Bill as amended. Under those clauses the board cannot go on to other people's land to carry out maintenance of a waterway unless it would not be reasonably practicable to carry out the work from the water. The board is bound, if practicable, to work from the water or from the towpath if it owns the towpath.

Amendment No. 11C, as it is worded, seeks to require the board to maintain its waterborne maintenance equipment and facilities in good repair. The amendment provides that: the Board shall make such provision for the maintenance of … equipment and … facilities as is necessary", and so on.

The clause is directed solely to the maintenance of equipment and of facilities. It seems to me a little out of place to require the board to keep its equipment and other facilities in repair. In any event, the amendment does not spell out what equipment or facilities the board is bound to possess.

I can see endless possibilities of dispute with the amendment as it is worded. What is the equipment which ought to be owned by a canal undertaker? The real answer is that the board has a statutory duty to maintain commercial and cruising waterways. It must inevitably perform that duty from the waterway itself, or its own land, unless it has the right to go on to other people's land under Clauses 5 or 6. How it performs that duty and what equipment is needed should, in my respectful opinion, be left to the board to decide.

Lord Harvington

My Lords, having listened to the speeches which have been made on this amendment your Lordships would be wise to adopt the suggestion of the noble and learned Lord, Lord Brightman, and drop this amendment for tonight. The promoters of the Bill will have heard enough from the discussions which have taken place tonight regarding the wishes of your Lordships. As there are some difficulties to which the noble and learned Lord, Lord Brightman, has very correctly and helpfully drawn our attention, it would be wiser to leave the matter for the moment and to let further discussions continue. It can then be dealt with properly in another place.

Viscount Astor

My Lords, perhaps I may intervene and repeat the usual statement of the Government's general neutrality towards Private Bills. It must be for the House to determine whether the promoters of the Bill are justified in resisting the amendment.

That said, the Government's general view of such matters is that the board must be free to decide how it is to carry out its statutory responsibility to maintain navigation on its waterways. There may well be cases where waterborne maintenance is the most efficient and effective way of fulfilling that duty. But there may well also be others where maintenance from operations on land is more practicable and suitable arrangements can be made with local land owners. We feel that the board ought to be free to decide how to carry out its statutory responsibility.

Earl Jellicoe

My Lords, I wish only to echo the cautionary words of the last three speakers. At the same time I should like to thank the noble Lord, Lord McNair, for his introductory remarks which I greatly appreciated.

This has been a useful amendment. I only wish that this question had been raised earlier and could have had the detailed scrutiny which the Select Committee of the noble and learned Lord, Lord Brightman, could have given it. It has been good that this question has been aired and ventilated. I add my voice to those who have urged that the noble Lord should withdraw his amendment. This is certainly something which could be looked at and should be looked at in more detail in another place.

Lord McNair

My Lords, I am most grateful to all noble Lords who have spoken in support of this amendment. I am also grateful to all those who have added words of caution. I am particularly grateful to the noble and learned Lord, Lord Brightman, for his careful analysis of where we may have gone wrong in wording the amendment.

I should like the noble and learned Lord to come back on one question. He seemed to assume that the requirement on the board was that it should do the maintenance itself. As I understand the wording, "make such provision" means that they could ensure that a contractor or whatever could carry out this work. Does he agree with me that this possibility exists within the wording of the amendment as it stands?

Lord Brightman

My Lords, before the noble Lord sits down, perhaps I may say that I had read "themselves" as applicable to waterways and not to the board. The point did occur to me that it was ambiguous as to which it was intended to relate to. I thought it related to waterways but perhaps I was wrong. That again is a matter of wording which could be cleared up at a later time.

Lord McNair

My Lords, I am most grateful for that further elucidation. The point of the amendment is to reinforce what we have achieved in Clauses 4 and 5 with the requirement that the board should use waterborne maintenance wherever reasonably practicable. This is not something that will disappear. It is something about which a lot of the users feel strongly from the point of view that the more waterborne maintenance that is done, the better the maintenance will be done and the more usable the waterways will remain. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Compensation]:

Lord Cornwallis moved Amendment No. 11D:

Page 6, line 46, leave out subsection (2).

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 11E. They bring the matter of settling disputes into line after the inclusion of the payment in the provision for payment for entry and clarify the method by which this shall be carried out. I beg to move.

Lord Burton

My Lords, I should like to ask a question on this amendment. I am afraid that I have not had an opportunity of taking legal advice. What is the tribunal to which the noble Lord refers in his amendment? I wonder whether this again is a piece of English phraseology as opposed to Scottish phraseology.

Lord Cornwallis

My Lords, it is the Lands Tribunal.

Lord Burton

My Lords, in Scotland it is the Lands Tribunal for Scotland, so there is a slight variation. It would mean another amendment.

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 11E:

After Clause 9, insert the following new clause:

("Disputes as to payments etc.)

Any dispute as to a person's entitlement to—

1. (a) a payment under section (Payment for entry) of this Act; or
2. (b) compensation in pursuance of section 9 (Compensation of this Act or as to the amount of the payment or compensation

shall be determined by the tribunal, and the specified provisions (which relate to the conduct of certain proceedings before the tribunal and costs) shall with necessary modifications apply in relation to the determination by the tribunal of such a dispute.").

On Question, amendment agreed to.

Clause 11 [General terms of houseboat certificates]:

[Amendment No. 12 not moved.]

Clause 16 [Prohibition or control of mooring]:

Earl Jellicoe moved Amendment No. 12A:

Page 11, line 35, at end insert ("(3) The Board shall not exercise the powers of this section to prohibit or regulate mooring other than so far as may be reasonably necessary for the purposes of—

1. (a) securing safety; or
2. (b) preventing congestion; or
3. (c) ensuring that vessels do not remain at short stay moorings after the expiry of the period for which they are permitted to be there.").

The noble Earl said: My Lords, the amendment is proposed in order to satisfy concerns that the powers to be conferred by the Clause could in theory be used to put down what I might call the equivalent of the double yellow lines on roads along the Grand Union Canal between London and Birmingham, for example, or elsewhere. That is not the intention of the clause and that would be made clear by the amendment to Clause 16. It is designed to enable the board to regulate mooring at places where it causes navigational hazards or creates problems of congestion where moorings should be rationed on a time-limited basis.

Hogging moorings and depriving others of the pleasure of short stops at popular visitor sites is resented, and justly so, by the majority of boaters. In contrast, casual mooring in and out of the way of beauty spots will be completely unaffected by the amendment. I beg to move.

Lord McIntosh of Haringey

My Lords, again speaking personally I think that the noble Earl is moving a considerable way towards meeting the objections which have been raised to the Bill by residential boat owners. Indeed, as he indicated in his speech on Second Reading, the board is conscious of those concerns. I am not qualified to judge whether the amendments which have now been tabled meet all of them. But I suggest to your Lordships that in order to expedite business we might agree among ourselves that these matters, which are essentially local matters, could well he dealt with by another place where constituency representatives have a particular interest which they are fully able and entitled to express.

On Question, amendment agreed to.

Clause 18 [Provisions as to private moorings]:

Earl Jellicoe moved Amendment No. 12B: Page 12, line 14, after ("mooring)") insert ("and conditions attached to a consent granted under section 19 (Control of moorings, etc.)").

The noble Earl said: My Lords, the pedigree of these three amendments—namely, Amendments Nos. 12B, 12C and 12D—is as follows. They were proposed to the board by representatives of several of the board's user groups, bodies such as the Royal Yachting Association, the Inland Waterways Association, the British Marine Industries Federation and the Association of Pleasure Craft Operators on Inland Waterways.

The amendments are designed to extend the protection given in the clause to the owners of private moorings who may otherwise be affected by their regulation—again in the interests of navigational safety. I understand that with the amendments incorporated in it—that is, if they are adopted—the clause would be agreeable, at least in principle, to those user groups to which I referred. I beg to move.

Lord Greenway

My Lords, I have not intervened thus far during the Bill's passage through your Lordships' House due to being unavoidably absent on previous occasions. However, I should like to express my gratitude to the noble Earl for bringing forward the amendments which to a great extent meet some of the concerns of the boating interests that he mentioned. I believe that there may be one or two points which are not quite understood. But I am sure that further discussion can take care of them and that they can perhaps be cleared up in another place.

On Question, amendment agreed to.

Earl Jellicoe moved Amendment No. 12C: Page 12, line 15, leave out from ("but") to the end of line 18 and insert ("in exercising the said powers the Board shall have due regard to the desirability of refraining from interference with private rights and established mooring practices and shall not prevent the mooring of any vessel which could lawfully have been moored but for the exercise of such powers.").

On Question, amendment agreed to.

9.30 p.m.

Earl Jellicoe moved Amendment No. 12D:

Page 12, line 20, at end insert ("(3) In this section "private rights of mooring" include any rights conferred by the Board or enjoyed as an incident of an interest in land.").

On Question, amendment agreed to.

Clause 21 [General environmental and recreational duties]:

Lord McNair moved Amendment No. 12E:

Page 13, line 37, after ("functions") insert ("and, in particular, their primary function of maintaining waterways for navigational use by the public").

The noble Lord said: My Lords, apart from the question of Scotland, this topic has taken the most bargaining and discussion. I table the amendment now simply to reinforce the concern that is felt about the question of equal primacy for navigation and conservation. In assessing the relative importance of conservation and navigation, we must remember that the ecological balance of the canal and adjoining land arises from an artificial creation, dating back only about 200 years, and that ecological balance arises from the fact that the canal system was created for navigation. If we give conservation, to which I personally give a very high priority, equal primacy with navigation and if navigation loses out in some measure to conservation, the maintenance schedule of the canal will go by default. The canal will dry out and the artificial but important ecological balance of the canal system will be destroyed.

What I seek to do in this amendment is to ensure both the future of navigation and the future of the present ecology of the canal system. If navigation goes, the ecology will also. I beg to move.

Lord Brightman

My Lords, I feel that I have a duty to speak against this amendment because it is incorrect to describe the board's primary function as, maintaining waterways for navigational use by the public". That is so in the case of a commercial waterway but not for a cruising waterway or for a remainder waterway. Under Section 104 of the Transport Act 1968, cruising waterways are, to be principally available for cruising, fishing and other recreational purposes". Under Section 107, a remainder waterway is either to be retained, developed, eliminated or disposed of. So one cannot say that the primary function of the board is to maintain all "waterways for navigational use". Therefore, one cannot accurately refer to the navigational use of waterways as the primary function of the board. As I read the statutes, that is correct only in the case of commercial waterways. There will be exactly the same arguments to be made when we reach Amendment No. 17.

Lord McIntosh of Haringey

My Lords, speaking again in a personal capacity, I am glad that I waited to speak until the noble and learned Lord, Lord Brightman, had intervened. He is of course correct about the wording of the amendment. However, I remind the House that Clause 21, to which this is an amendment, is about the general and environmental duties of the British Waterways Board. The noble and learned Lord has again brought out the concern that I expressed on Second Reading, which has not been adequately answered either in Committee or in these debates, about the environmental inadequacies of the Transport Act 1968. As I said then, I am a great admirer of the 1968 Act, but although it was not behind its time then in environmental terms, it is behind the environmental concerns that are properly expressed in 1992.

What is sad is that inadequate effort has been made in your Lordships' House to bring the Transport Act 1968 up to date as regards waterways in environmental terms. The amendment is necessary to draw attention to that fact. I agree with the noble and learned Lord that it is not adequate for its purpose, but it is important that we should signal now to another place that the environmental duties, as expressed in Clause 21, are not adequate and that they should be applied to the cruising and the remainder waterways as firmly as to the navigational waterways.

Lord Greenway

My Lords, I add my support to what I believe to be behind the thrust of the amendment, although, as my noble and learned friend has pointed out, it is fundamentally flawed. I believe, as the noble Lord, Lord McIntosh, said, that this is a matter best left to another place.

The Earl of Balfour

My Lords, I support what the noble Lord, Lord McIntosh, said. The flow of water from tributaries is also an important matter. I am thinking again of Scotland and the flow of streams into the waterways, fish ladders and such things. I am glad that the noble and learned Lord, Lord Brightman, spoke against the amendment. He was right to have done so. There is something in the words "maintaining waterways". Small streams which run into the main canals, things such as a fish ladder which may lead from them, small streams which permit fish to get up to the spawning grounds and waters which are alongside the edge of a waterway deserve to be protected carefully. That is a point that might be taken up when the Bill goes to another place.

Baroness White

My Lords, I fully understand the objection raised by the noble and learned Lord to the wording of the amendment when it includes the word "primary" because one can argue about whether the function is the primary one. I should have thought that it was, but one can see that the legal mind does not move that way. Nevertheless, there is something of importance in the general thrust of the amendment. I have seen the grouping of the amendments only since we started the discussion, and I do not understand why the amendments to Clause 21 are not grouped together so that we can discuss the whole issue.

I do not know whether the noble Lord, Lord Burton, has any intention of moving Amendment No. 15. I cannot imagine why he ever put it down, but no doubt all will be revealed in due course. The suggestion that the circumstances embodied in Clause 21 should be deleted is difficult to understand. I do not want to pursue the matter because we clearly cannot accept the amendment as it stands.

I had hoped to say something about Clause 21(2) (d) and to express my gratitude to our Select Committee for including a recommendation in response, partly at least, to the Instruction that I was able to introduce in the House for its deliberations; namely, that it should be part of the duty of the British Waterways Board to protect for future use as cruising waterways or as areas appropriate for other public recreational use the remainder waterways which may have some potential for such use. I am extremely grateful to the Select Committee for having accepted that view. I hope that the British Waterways Board has taken full note of it. We all know that a number of canals in the country are not at present in full use because they have not been fully restored; they have certain areas which prevent the through passage of boats. Even though it would not be impossible to improve them and clear the hindrances, often the resources are not available.

I do not wish to continue the discussion, but I believe we owe a debt to the noble Lord, Lord McNair, for having suggested that we should think in these terms, even though from the legal view the amendment is not entirely satisfactory.

Viscount Astor

My Lords, since Clause 21 has the full support of the Government, it may be convenient if I set out our views on Amendment No. 12E tabled by the noble Lord, Lord McNair.

Clause 21(1) (a) cannot override the existing statutory responsibility that the British Waterways Board has to maintain navigation. That is the most important point. In managing its estate, the British Waterways Board has to take into account a wide variety of canal users' wishes, not only boaters but also anglers, walkers, conservationists and many others. It is for the British Waterways Board to achieve a suitable balance between these interests at local level, bearing in mind the wide range of its statutory duties. It is important that these cannot override the existing responsibility to maintain navigation.

Clause 21 carries out a recommendation made by the Select Committee on the Environment in another place. It has been amended to follow a direction made by your Lordships' House on Second Reading and to meet concerns about the protection of towpaths. I believe that the House should accept the clause in this form and, for the reasons I have given, resist the amendment.

Lord McNair

My Lords, once again I am grateful to the noble and learned Lord, Lord Brightman, for bringing the searchlight of his legal experience to bear on the amendment. I shall not press it, but the point that I made has not been made elsewhere about the inter-relationship of the artificial but wonderful ecology of the canal system and navigation. It is something which I hope will be looked at again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howie of Troon moved Amendment No. 13: Page 13, line 44, after ("architectural") insert ("engineering").

The noble Lord said: My Lords, this is perhaps the most modest amendment which could be made since it adds only one word to the Bill. Admittedly, in Amendment No. 14 I add the same word in another part of the Bill, so my desire is to increase it by only two words. It would be difficult to be more modest than that.

Modest though the two amendments may be, they are extremely important. The promoters have adopted the standard usage in a number of other public Bills that have passed through the House relating to the duties to take certain conservation measures. Clause 21(1) (b) states that the board should: have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest".

I ask that the word "engineering" be added so that the Bill refers to: buildings, sites and objects of archaeological, architectural, engineering or historic interest".

I say that because, if anything, the waterways system is an engineering system. There is no doubt that it has a certain amount of archaeological interest in the sense of industrial archaeology. It has a modest amount of architectural interest here and there. However, it has an overwhelming amount of engineering interest. The objects—I prefer the word "artefacts", but objects will do —that are to be preserved in the waterways system are more likely to be engineering objects than any other kind.

I do not wish to go into this argument in any detail as I ran over the ground on Second Reading some while ago. I shall merely draw your Lordships' attention to one example. In Bristol there is a swing bridge at the entrance to the docks. I suppose it is of historical interest in the sense that it is rather old. It might conceivably be of architectural interest in the sense that it is a structure. Aesthetically, however, it is an eyesore. It is a dreadful little bridge. It is, however, listed because the machinery by which the swing bridge is operated is thought to be important from the engineering point of view. It has been listed on the grounds of engineering interest although so far no one has been prepared to admit that.

If it is right to preserve a structure of that kind on the grounds of engineering interest, it is right to state that, at long last, on the face of legislation. As Ministers know, I have tried to persuade them to take that step on a number of public Bills over recent years. I am happy to think, rather than say, that the promoters of the Bill look upon my amendment with some kindness. If I am right, I congratulate them for they are breaking new ground. I sincerely hope that the noble Lord, Lord Burton, will be unsuccessful in removing Clause 21 from the Bill as I would hate to improve that clause in my modest way and then have the noble Lord delete it.

Lord Elton

My Lords, before the noble Lord sits down, I believe it would help the debate which may follow if he could kindly tell the House which kind of objects, of the objects he is speaking of, would be affected which are not already covered by the term "archaeology", because industrial archaeology covers machinery. I imagine his concern is already met in the Bill.

Lord Howie of Troon

My Lords, that is the whole core of my objection. The term "industrial archaeology" is used as a means of avoiding the word "engineering". The term "industrial archaeology" is not archaeology at all: it is engineering history. Engineering history has been called industrial archaeology because it is usually carried out by people from the other side of the great divide in our culture. The word "engineering" will not harm the Bill in any way. The term will make clear what is required of the Bill. It will improve our culture enormously. I am rather sad that the noble Lord interrupted me as he has made me speak at greater length than I had intended. I beg to move.

Lord Thomas of Gwydir

My Lords, I have a great deal of sympathy with the noble Lord's amendment. He moved it in his usual modest fashion. It is an important amendment but I am rather concerned about the matter to which my noble friend Lord Elton referred. I hope the noble Lord can help the House because we are, after all, inserting words in a Bill and it is important that there should be no confusion about what is meant.

I wonder what the word "engineering" means. I do not claim to be an expert on the subject but I understand that there is civil engineering—which involves buildings, bridges and roads—mechanical engineering, electrical engineering, chemical engineering, aeronautical engineering and even military engineering. Can the noble Lord help the House and relieve our confusion by telling us exactly what he means and how that would stand out in any way from what is presently contained in the Bill, namely that it is necessary for the board: to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest". In what way does he wish to add to that?

Lord McIntosh of Haringey

My Lords, The Concise Oxford Dictionary gives a clear definition of engineering which is wider than the particular branches of engineering to which the noble Lord, Lord Thomas, referred. It is the: application of science to the control and use of power, esp. by use of machines". I should have thought that that was a perfectly adequate definition which supports my noble friend's amendment.

My noble friend is too modest. He has not reminded the House that he has ensured that the word "engineering" has already been inserted in other legislation, notably in the Environmental Protection Act. That is a very good precedent for including the word now.

Lord Harvington

My Lords, perhaps I may add that I think that the noble Lord also has in mind the Anderton lift, for example, in Cheshire, which is the first example of its kind on waterways. I believe that the lift is unserviceable at present but it ought to be retained as a monument because such lifts are very popular all over Europe, although they are great big modern things today. However, that was the original which gave them their birth.

Viscount Astor

My Lords, as the noble Lord, Lord McIntosh, said, this is not a new line on the part of the noble Lord, Lord Howie, who has tried to include the wording in various Bills. Perhaps I may add a word of caution. The unqualified use of the word "engineering" might also apply the duties to current British Waterways Board engineering plant, which might be an unreasonable restriction on its day-to-day operations. I agree with the point made by my noble friend Lord Elton.

Earl Jellicoe

My Lords, perhaps I may comment briefly. I have heard what my noble friend Lord Astor said. I should like to reflect upon the matter. Speaking for the British Waterways Board, I should be perfectly happy for your Lordships to accept the amendment. However, the House may prefer to let it pass for the time being and let the other place consider the matter.

I have a bias. If I know any canal well it is the Kennet and Avon Canal and I know the marvellous early 19th century and late 18th century engineering of that canal. One of the earliest pump stations is very close to where I live. I should rather like to see such items given special protection.

Baroness White

My Lords, those of us who are familiar with the history of some of the canals will also support my noble friend. The Anderton lift is a very good example and there are others which one could bring to mind although I do not wish to delay the House. Architecture can be contemporary. Therefore one need not be worried about engineering on the grounds that it is contemporary while other items are not. My noble friend is entitled to suggest that we make this change. If the other place wishes to knock it out, that is up to them.

Lord Howie of Troon

My Lords, I was hoping for a smooth glide towards happiness and I am rather taken aback. The noble Lord, Lord Thomas, who was once for a short, happy period of his life, my Member of Parliament—although I did not vote for him, partly because I was a Member of this House at the time —raised questions which I did not take further because I had mentioned those matters at Second Reading some time ago. Some of the items that I had in mind which are engineering and nothing else—unless we accept the industrial/archaeological flummery—are the sorts of things mentioned here, such as sluice gates, lock gates or a tunnel. There is nothing architectural about them. They are wholly, totally and completely engineering. It is high time that we recognised the engineering dimension to such things, which is every bit as important as the architectural dimension.

Anything that is said about engineering being covered by history or archaeology is also true of architecture. Yet it is accepted that there is an architectural dimension which is slightly removed from history and archaeology. In exactly the same way there is an engineering dimension—not well understood in this House—which is removed from history and archaeology.

I am grateful for the comments which have been made, even those which did not wholly support me although they leant a little way in my direction. I am especially encouraged by the comments of the noble Earl, Lord Jellicoe.

On Question, amendment agreed to.

Lord Howie of Troon moved Amendment No. 14: Page 14, line 8, after ("architectural") insert ("engineering").

On Question, amendment agreed to.

Lord McNair moved Amendment No. 14A: Page 14, line 20, after ("Board") insert ("other than any such facilities as are so available prior to the coming into force of this Act").

The noble Lord said: My Lords, this may seem to be a nit-picking amendment. Although later in the debate I shall be very critical of some aspects of British Waterways Board's activities and operation, I realise that it feels that it is between a rock and a hard place —as our transatlantic cousins say—in a financial sense.

Having lived near a canal and having walked for pleasure many times along it, I should regard it as mean in the extreme were there to be a turnstile with a slot machine into which I had to put money before I could indulge in that small pleasure. I know that there is a continuing debate about how much and by what means British Waterways should charge for the use of the canal. In fact there are some very interesting proposals in the December 1991 edition of the Inland Waterways Association's magazine and I hope that the board studies them closely.

The purpose of the amendment is to signal a further aspect of the Bill which I hope will be looked at closely in another place. The canals are arteries which spread out from our big cities. Walkers should be encouraged to explore the canals. They might become boaters or anglers. If they are confronted with a money-in-the-slot turnstile when they venture on to the canal, I feel that it is unlikely that they will pursue those possibilities. I beg to move.

10 p.m.

Earl Jellicoe

My Lords, I understand the feelings of the noble Lord, Lord McNair. However, I believe that the amendment proposed may be a little restrictive. Perhaps I may give an example. As I understand it, British Waterways Board at present proposes to resurface at considerable expense a car park at Tring reservoir off the Grand Union canal in Northamptonshire. At present the car park is an awful mess. It is muddy, rusty and waterlogged. I am not certain how far that proposal has advanced. I use it as an example. However, if British Waterways Board has gone to considerable expense to resurface such a facility, for which it does not charge at present, it might be perfectly sensible for it to levy a small charge when the area has been improved. As worded, the amendment is a little restrictive, although I entirely agree with its aim. I suggest that the noble Lord should not press the amendment.

Lord McNair

My Lords, I am grateful to the noble Earl for being somewhat encouraging. Does that mean that when or if British Waterways Board repairs a towpath it could then charge people for walking along that towpath?

Earl Jellicoe

My Lords, I used the car park as an analogy. The argument would not apply to a towpath on which I would wish to see the greatest possible freedom of movement.

Lord McNair

My Lords, I am grateful for that. When the Bill reaches another place, could we have a provision which clarifies the situation?

Viscount Astor

My Lords, the noble Lord will be aware that subsection (4) states that, Nothing in this section shall require recreational facilities". It specifically refers to "recreational facilities".

We believe that those who benefit from British Waterways Board's recreational facilities should contribute, if necessary, to the costs of such provision.

Lord McNair

My Lords, does that include people who walk on the towpath?

Viscount Astor

My Lords, I do not believe that a towpath is a recreational facility. It is totally different.

Lord McNair

My Lords, I consider myself to be indulging in recreation when I walk along the towpath.

Viscount Astor

My Lords, we might be indulging in recreation in speaking tonight. It does not make the House of Lords a recreational facility.

Lord McNair

My Lords, I do not believe that the British Waterways Board is considering charging for speaking in the House of Lords. However, we have pursued the point far enough. I should like further discussion on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burton had given notice of his intention to move Amendment No. 15: Leave out Clause 21.

The noble Lord said: My Lords, to the relief of the noble Lord, Lord Howie, perhaps I may say that I shall not press the amendment. However, when we met on 27th January I gave a number of reasons why the clause required strengthening. I had hoped that, having had its attention drawn to the matter, the Department of the Environment might have put some teeth into the clause. It is absolutely vital that some teeth are put into it. At present there is nothing to enforce the British Waterways Board to carry out any of the excellent duties in the clause.

Perhaps I may give two reasons for such amendment. Eighty per cent. of all the boats using the Caledonian canal discharge crude sewage into the waterway. When one is fishing just below a lock on the river it is not nice to find crude sewage floating past. There are no facilities on the canal for emptying bilges. I have seen boats discharge on a number of occasions. I believe that it is against the law but what are people on boats expected to do if there are no facilities for emptying bilges?

The canal authorities have known about the position for a long time. There was a committee which met at Inverness with the canal authorities. The matter was impressed upon them then but nothing has been done. I believe that some teeth ought to be put into the Bill. However, unless any other noble Lord wishes to speak I shall not move the amendment.

[Amendment No. 15 not moved.]

Clause 23 [Provisions as to disposal of subsidiaries, etc.]:

Lord Elton moved Amendment No. 16:

Page 15, line 21, at end insert: ("(4A) In managing or developing any property acquired under subsection (2)(b) of this section it shall be the duty of the person acquiring it—

1. (i) to have regard to the considerations as to conservation set out in section 21(1)(a) of this Act; and
2. (ii) to fulfil the duties set out in subsections (1)(b) and (c) and subsections (2) and (3) of that section.

(4B) Any person acquiring property referred to in subsection (2)(b) of this section from a person subject to the provisions of that subsection shall be subject to those provisions.").

The noble Lord said: My Lords, if the noble and learned Lord, Lord Brightman, chides me for tabling the amendment at such a late stage I can only apologise for being guilty. At a late stage it was brought to my attention that there was a significant gap in the provisions of the Bill protecting the environment. When I beheld the number of those besieging the promoters with amendments at this stage, I felt that no harm could be done by introducing this amendment too.

Your Lordships have discussed Clause 21, and in particular subsection (1) (a) to which the noble Lord, Lord Howie of Troon, has elegantly and persuasively added a strengthening element. The elements in Clause 21(1) serve to impose upon the British Waterways Board a duty to protect various interests, all of them environmental, which would be extinguished were it to sell on any of its property. The purpose of the amendment which I ask your Lordships to add to the Bill is to apply those constraints to subsequent purchasers so that the environmental protection is not weakened by the sale of property to developers or to those who neglect the environmental interests. I beg to move.

Lord McNair had given notice of his intention to move, as an amendment to Amendment No. 16, Amendment No. 17: At end insert ("(4C) Nothing in this section shall prejudicially affect the powers and obligations of the Board to their primary duties to maintenance and navigation persuant to section 105 of the Transport Act 1968.

The noble Lord said: My Lords, the amendment strengthens Amendment No. 16 in respect of the navigational aspects of the canal in question. Therefore, any sale of property or goods shall not have a detrimental affect on the canal as a waterway because the canals were built solely for the purpose of navigation. I believe that the wording of Amendment No. 16 has been modelled on the Water Act 1978. That Act deals only with waterways which are not constructed primarily for navigation. I do not intend to press the amendment but I wish to signal the anxiety of many people that navigation may suffer.

[Amendment No. 17 not moved.]

Lord Elton

My Lords, I have declared my sympathy for the object of keeping canals navigable.

The noble and learned Lord, Lord Brightman, has explained the inappropriateness of using what is in effect a descriptive passage to make a prescriptive statement about the duty of the authority in this case. I see that the noble Lord has again made the duty primary and, therefore, the amendment is probably defective in that respect. I should be content if my amendment were not amended if that is what my noble friend Lord Jellicoe wishes.

Earl Jellicoe

My Lords, I have discussed this matter with the British Waterways Board, which is content with my noble friend's amendment.

Lord McIntosh of Haringey

My Lords, I apologise for being absent during the debate. I welcome the amendment in the name of the noble Lord, Lord Elton, and my noble friend Lord Howie of Troon. I am not qualified to say whether it goes far enough to deal with all the possibilities of misuse of land after disposal. Again, I flag that as a matter which must be given careful consideration in another place. However, it is a step in the right direction on one of my major anxieties about the Bill when it was first introduced. I am delighted that the noble Earl is prepared to accept the amendment.

Viscount Astor

My Lords, if noble Lords accept the amendment, we shall ask the British Waterways Board to consider with us whether further amendments are required in another place because the amendment may have implications which should be given careful consideration; in particular, the extent of duties placed on private citizens, whether there would be a workable means of enforcement and whether the amendment will have the exact effect intended.

Lord Elton

My Lords, I am grateful to my noble friend on the Front Bench. In the time available I could not devise a means of enforcement.

The Deputy Speaker (Lord Skelmersdale)

My Lords, before my noble friend continues, I should point out to the House that the noble Lord has not withdrawn the amendment to the amendment.

Lord McNair

My Lords, I did not move my amendment to Amendment No. 16.

Lord Elton

My Lords, although there is no means in the amendment of attracting powers of compulsion which the Government or the courts might have towards the British Waterways Board before the sale of a property for a lapse in observance of duties which the amendment imposes on a purchaser of the property, it is clear that it places a right at common law for those aggrieved by a failure to observe that duty; for example, neighbours or others with an interest. In any event, the fact that the requirements are on the face of the statute will make the position plain to planning authorities which must give permission to some of the activities which the amendments seek to discourage.

On Question, Amendment No. 16 agreed to.

Clause 25 [Extinguishment of certain rights]:

[Amendments Nos. 18 and 19 had been withdrawn from the Marshalled List.]

Lord Cornwallis moved Amendment No. 19A: Page 15, line 46, at beginning insert ("As from the day appointed by resolution of the Board in relation to any inland waterway ("the appointed day") but").

The noble Lord said: My Lords, in speaking to Amendment No. 19A I should like to speak also to Amendments Nos. 19B, 19C, 19J, 19K and 19L.

The main amendment in the group is Amendment No. 19L. It may be helpful at the outset to say what this amendment is not intended to do. It is not intended to prevent the British Waterways Board from acquiring and extinguishing those rights which may exist but which for one reason or another are not in current usage.

Clause 25(3) and (4) already protects the rights of those who have continued to exercise them on a regular basis. The problem of rights which people may have which have not been continuously used is that the British Waterways Board does not know who those people are and was apparently unwilling to find out. It is far easier to have a clause in a parliamentary Bill which sweeps them all away without the knowledge of most of the people concerned and without any compensational right of hearing.

The Country Landowners' Association, the Scottish Landowners' Federation, the National Farmers Union, the Royal Institution of Chartered Surveyors and others did not believe that that was acceptable. It cannot be right in principle for there to be expropriation of those rights without any notice whatever to the individuals concerned. Further, it cannot be right in principle for the expropriation of those rights without compensation. Standing Order 13, which applies to Private Bills, clearly states that promoters of a Bill have an obligation to serve notice on those whose rights are to be acquired.

We are not trying to prevent the board from achieving its purpose. We are asking it to take a little longer about it and to make sure that it does not unilaterally remove genuine existing rights without notice or the knowledge of the people concerned and that, where appropriate, compensation is paid. As I have already said, the amendment does not attack the principle of Clause 25, but merely ensures that the persons affected by it will be treated equitably. The registration process will be advertised by newspaper circulation in England, Wales and Scotland and by the service of notices on local authorities which include parish councils.

I must emphasise that the registration of a claimed right would not determine its validity. Registration ensures that the British Waterways Board will have certainty as to who claims what rights, and anyone who fails to register would have lost the opportunity to establish those rights. After registration the British Waterways Board would at any time be able to extinguish the rights registered where the board agrees that they are valid six months after the service of a notice. It would be obliged to compensate for the extinguishment of registered rights and any dispute on the amount of compensation will be determined by the Lands Tribunal.

There has been very considerable discussion on the vexed subject of the extinguishment of rights. I originally tabled an amendment that the board should allow a period of three years during which those owners or occupiers could register a claim to retain a right which they believed to be theirs. Representations were made to me that three years was too long and that dealing with the whole area of the British Waterways Board could involve an unnecessary bureaucracy. The present amendment is therefore tabled, with the agreement of the British Waterways Board, to limit the period of registration to one year and the notice of extinguishment to a further period of six months. It is also proposed that the extinguishment should be dealt with canal by canal by individual notice of intent. That will enable better information of the board's intention and a better opportunity for various owners' and occupiers' organisations to alert their members to what is happening.

The registration of a claim does not signify that a right exists. That would be a matter for negotiation between the claimant and the board. It also provides for the payment of compensation by the board where an agreed right is to be extinguished. I believe that to be an admirable compromise worked out after long discussions between the parties concerned and I commend it to the House.

Before moving the amendment formally I would like to pay tribute to the long hours of discussion and negotiation in which the noble Earl, Lord Jellicoe, has participated and in particular to the part which he has played in bringing so many agreed amendments before your Lordships' House. I thank the noble Earl for his unfailing courtesy during these discussions. I hope we reach a situation in which we send an improved Bill to another place. I beg to move.

10.15 p.m.

Lord Brightman

My Lords, Clause 25 of the Bill was an area of intense discussion before the Select Committee. It might be helpful to your Lordships if I summarise very briefly the effect of that clause as it now stands and then say a brief word about the amendment which I support. The object of Clause 25 is to extinguish riparian rights which are thought to be obsolete but whose theoretical existence may hamper British Waterways in its management of the canal system. The clause affects only rights created by a local Act more than 90 years ago in favour of riparian owners.

Put shortly, three types of rights are involved: first, the right to construct works adjacent to an inland waterway, for example, roads, mooring places and bridges; secondly, the right to drain water into or extract it from a waterway; and, thirdly, fishing and boating rights. Such ancient rights are, however, preserved by the Bill in four cases. The first is works in existence when the new Act is passed; secondly, rights to drain or extract water exercised before the new Act is passed; thirdly, fishing rights beneficially vested in someone when the Act is passed as distinct from fishing rights outstanding in some long-forgotten personal representatives; and, fourthly, rights which were originally created in favour of named persons or specifically identified land. What the proposed amendment does is to create a fifth exception; namely, rights which would otherwise be extinguished but have been duly registered. These rights, which may be registered, will mostly be rights originally created in favour of riparian landowners generally without specifically naming the landowner or designating the land. So riparian owners will be protected if, put briefly, the rights have been exercised, or were created in favour of named persons or land, or, in the case of fishing rights, are beneficially owned when the Act is passed, or are registered.

I should now like to speak briefly about Amendments Nos. 19D and 19H in the name of the noble Lord, Lord McNair. I see no virtue in excluding from the clause navigable cuts, wharves, quays and landing places. These will be saved from extinguishment if they are in existence or if the right was granted in favour of a named person or named land, or if registered. There are precedents with this type of extinguishment: the British Railways Act 1968, extinguishing rights in the site of abandoned railway lines and the commons Act extinguishing common rights if not registered. I suggest to your Lordships that it would be right to accept the amendments in the name of the noble Lord, Lord Cornwallis, but not, I respectfully suggest, the amendments in the name of the noble Lord, Lord McNair.

Lord Burton

My Lords, I should like briefly to say that I hope this amendment will be accepted; it is certainly an improvement. However, I have one anxiety; that to get rights registered the applicant could get involved in considerable expense. The British Waterways Board is likely to object to a registration if there is any doubt whatever. Merely to get one's right recorded, whether or not it is intended to use it at the present time, could involve one in substantial expenditure.

Earl Jellicoe

My Lords, I should like to make clear that the board has given a great deal of consideration to this issue since it was very carefully examined by the Select Committee headed by the noble and learned Lord. The board has authorised me to make absolutely clear that it accepts that compensation should be paid to those who can establish a proper entitlement to these rights in cases where the board may wish to extinguish them.

This amendment is on agreed lines and has been moved by the noble Lord, Lord Cornwallis. I am grateful for the terms in which he moved it with the full support of the board. The British Waterways Board has settled the procedure for the registration of rights by those who wish to claim or exercise them with the National Farmers Union and the Country Landowners' Association.

I understand that the period of one year which the procedure will allow for that purpose is considered by those concerned to be fair and reasonable. The board's ability to deal with those rights which it feels ought to be extinguished, on a canal by canal basis or otherwise, in tranches, will be to the advantage of all concerned. I am most grateful to the noble Lord, Lord Cornwallis, with the way in which he has pursued this matter with persistence but with great politeness.

Lord Brightman

My Lords, perhaps I may be permitted to correct, with great respect, a point made by the noble Lord, Lord Burton. Under subsection (14) on page 11 of the Bill your Lordships will see that registration, of a claim to exercise a right under a provision to which this section applies shall not be evidence that the claim has any validity; and nothing in subsections (6) to (13) above shall prevent the Board from challenging in any way whatsoever the validity of any such claim". Therefore the board can let a supposed right go on to the register without any qualms whatever.

Lord Burton

My Lords, I am most grateful to the noble and learned Lord for that information.

Lord McIntosh of Haringey

My Lords, the implication of that is very worrying because the noble and learned Lord referred to the amendments in the name of the noble Lord, Lord McNair, which are not, as I understand it, grouped with these amendments but which have now been debated. The noble Lord, Lord McNair, is seeking to exclude certain types of waterside activity. It was suggested by the noble and learned Lord in his first intervention that he need not worry about doing that because they could be registered. What the noble and learned Lord is now telling the House is that registration does not mean very much because, although it has no power to prevent registration, the board has powers to contest the validity of the claim in any way. I do not see how the two fit together.

Lord Brightman

My Lords, I do not know whether I am confused or not, but I had understood that Amendments Nos. 19D to 19H had not yet been moved. The purpose of my rising on this particular point was that it seemed to me that there was no need to exclude from Clause 25 wharves, quays, landing places and navigable cuts because they can go on the register. If they are on the register, the claimant has the right to establish their validity. The effect of registration is not to confer validity but to give a right to claim validity. If one is not on the register, one does not have the right to claim validity. It is exactly comparable, as I understand it, with the position under the commons Act.

Lord Cornwallis

My Lords, I am very grateful to the noble and learned Lord for his intervention. The period of one year is believed to be perfectly adequate because it is felt that anyone who has not bothered to register within one year either does not have very much to register or will not do so in any case. I thank the noble and learned Lord for his help with this amendment. I commend it to the House.

On Question, amendment agreed to.

Lord Cornwallis moved Amendments Nos. 19B and 19C:

Page 15, line 46, leave out ("(5)") and insert ("(14)").

Page 15, line 49, leave out ("any inland") and insert ("that").

On Question, amendments agreed to.

Lord McNair moved Amendment No. 19D: Page 16, line 1, leave out ("tramroads or navigable cuts") and insert ("or tramroads").

The noble Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 19E to 19H and Amendment No. 19M. Before doing so, I think there is a wealth of possibilities, mostly for the legal profession, in the words that the noble and learned Lord used when he said that someone registering a right had the right to establish that right. I happen to know that British Waterways will challenge any right that it so chooses —I guess that it will he most of them—and that anyone registering a right will be confronted with a legal battle. The contest is not about whether the right remains but about compensation for the loss of the right. While some wealthy landowners might relish a little light legal skirmishing, it could be a very serious matter for some of the small businesses—the independent service providers—with which I have discussed this matter.

It may be helpful if at this stage I briefly review the history of the rights the board intends to extinguish. The original Acts for the construction of the canals gave owners of the land adjoining the new canal the right to construct wharves and mooring places, and so on, which could be used without payment to the canal company. That was to encourage the use of the canal and excluded tolls—or, in today's terms, licence fees —which the company could, and which the British Waterways Board now does, charge. I believe that all those rights are still alive and extant today. Many boatyards on these old sites are still using the rights which save them from paying British Waterways a great deal of money and makes their businesses, perhaps, a little more profitable—although many of those businesses are not particularly profitable—and their sites correspondingly more valuable.

The British Marine Industries Federation believes, but cannot be sure without going to court, that new marinas built today could also own those rights. British Waterways naturally says that they cannot and charges marinas a fee, which might be illegal. The strongest evidence is that the rights exist and are valuable. I think that that is borne out by the vigour with which British Waterways has tried to extinguish them. I want things to be left as they are, pending resolution of this issue. That is why I should like all references to boatyard type facilities removed from the Bill.

It was during a meeting yesterday that the board's solicitor, Mr. Duffy, stated that any rights that were registered would immediately be challenged. I find the board's attitude morally reprehensible and would greatly prefer to see Clause 25 deleted, at least until the legal situation has been properly tested.

I should point out that the concessions made by the board to date on the matter are, in the case of many small businesses which cannot afford further legal entanglements than many of them already have with British Waterways, largely illusory. However, I shall not press the matter to a Division. I beg to move.

10.30 p.m.

Lord McIntosh of Haringey

My Lords, if the noble Lord is, as I think he is, speaking to the clause generally, I believe that he has raised matters which give rise to a great deal of anxiety. What he says about the stated intention of the British Waterways Board to oppose any applications of a certain type makes me repeat my worry at what the noble and learned Lord said when speaking to the previous group of amendments.

If all this means is the power to establish a claim and it implies no restriction whatever on the power of the board to oppose that claim or challenge its validity, then it could be an illusory power. It could be that those who feel that they have a claim would be deterred from making that claim because they fear that if they seek to pursue a claim the British Waterways Board, with its greater financial resources and legal representation, would be able to cause them very substantial costs.

I wonder whether we have, as yet, got to the bottom of the matter. I also wonder whether the very widespread power to extinguish ancient rights which is implied in the clause has been adequately examined. I read the committee's report with great care and great respect but did not find myself in agreement with the conclusion. I do not think that this is a matter that should go forward into legislation in this form.

Lord Greenway

My Lords, I am glad to support Amendments Nos. 19D and 19H which were moved by the noble Lord, Lord McNair. These are the preferred amendments of the boating authorities, but in view of what my noble and learned friend has said I think that those authorities would like to have another look at this question. Perhaps in discussions with the promoters we can see whether these amendments could be meshed in in some way with the ones tabled by my noble friend Lord Cornwallis to which we have just agreed. Another place could perhaps better deal with this matter.

Lord Howie of Troon

My Lords, I believe that the noble Lord, Lord McNair, spoke also to Amendment No. 19M as well as to those in this group. Amendment No. 19M goes rather further than the other amendments because it removes Clause 25 entirely and for that reason I support him. I say that for the following reasons. In drafting legislation it is customary to draw up a Bill with certain clear and defensible purposes and then to throw in a bombshell, which is normally described as "miscellaneous", although not in this case.

As I understand it, the main thrust of the Bill is to allow the British Waterways Board to enter land for the purposes of repair and maintenance. Those are the general, defensible and admirable powers that the board seeks. Although we have sought to end those powers on the perimeter, we have accepted the generality of the board's right to seek powers to do such things. However, in Clause 25 we find that, in addition to doing sensible things such as looking after the canal or the waterways and keeping them in decent maintenance and repair, rights that people have had conferred upon them by Parliament - by this House and by another place - are to be taken away. Sometimes people have had those rights for a long time - I dare say that some date back as far the first canal legislation in the 18th century. I do not see that it is proper to utilise a Bill of this nature, which deals with maintenance and repair and other sensible things, to take away people's rights. In that respect, I support the noble Lord, Lord McNair, especially in Amendment No. 19M.

Lord Thomas of Gwydir

My Lords, the noble Lord, Lord Howie, talks with great emotion about the taking away of people's rights, and the noble Lord, Lord McIntosh, is concerned about the extinguishment of rights that belong to individuals, but he seems to have forgotten that we are talking about rights which have not been exercised for over 90 years and which were not created for the benefit of any specific land or person. When one bears that in mind, it may well be found that the emotion that has been expressed is not apposite to this amendment.

Lord Burton

My Lords, I wonder whether the noble and learned Lord, Lord Brightman, could elucidate a little further on this. I understood him to say that there would be no question of objecting to the registration and that the only time an objection would arise would be when one wanted to implement whatever it happened to be. Therefore, the British Waterways Board would not challenge an actual registration. I am not sure whether that is correct.

The other point raised was in relation to the extinguishment of ancient rights. Circumstances change. I understand that a marked change has arisen where a piece of land has become available for development. It is worth a substantial sum of money, but to reach it one has to cross a canal. To do that one would have to exercise a right to build a bridge. Until now no one has wanted to build a bridge. A worry exists but, on the other hand, the problem may be overcome with registration, provided that each and every registration is not challenged.

Lord Brightman

My Lords, I do not know whether I can help the noble Lord. Under subsection (10) on page 10 of the Marshalled List the board registers any claim to exercise a right. That is what goes on the register; but it goes onto the register on the basis that, if and when the person registering wishes to enforce that right, he will have to ascertain whether the board accepts it. The board may accept the right, in which case it can be exercised. The board is entitled to challenge the validity of the right. To avoid unnecessary litigation, I should have thought that it was right for the amendment to be in the form of registering the claim to the right because then everything is in the open. If the time comes for the right to be registered, then it can be agreed between the board and the claimant that the right is valid; or, alternatively, if the board thinks the claim is a bad one it is entitled to challenge it. That is the system. It is the system, so far as I can remember, which works under the commons legislation, and at the moment I see no objection to it.

Lord McIntosh of Haringey

My Lords, I think that the noble and learned Lord would wish the record to say, "when the time comes for the right to be exercised" rather than "for the right to be registered".

Lord Brightman

My Lords, the validity of the right can be tested when the right comes to be exercised. I expect that it can be settled earlier. I do not know, because there are no procedural regulations about it. But it is right to say that the validity of the right will fall to be decided, at latest, when it comes to be exercised.

Lord Elton

My Lords, we must come to a conclusion fairly soon. I wish only to add my penn'orth to the conversation and say, first, that the amendments which we know will be accepted are a considerable advance on the position in which we were earlier. That should be recognised with gratitude. I should like to say now—I forgot to say it in connection with my amendment—how grateful I am to my noble friend Lord Jellicoe for his conduct of this matter. I also thank my noble friend Lord Kinnoull for smoothing the way for a great many amendments.

One is supposed to declare an interest, and I have a vestigial interest, being lord of a manor along the edge of which a canal flows. It may be presumed that I may have some as yet unextinguished rights. I have no idea what they are. It seems to me that the safeguards are addressed largely to people in my position. I regard myself as satisfied with where we are now. I hope that the advances made will not be prejudiced by trying to achieve these amendments rather than those that will be accepted.

Lord Howie of Troon

My Lords, the noble Lord, Lord Thomas, accused me of emotion, which is most unusual. I think that he said that we were dealing with rights, some of which had not been exercised for 90 years. I did not see that in the Bill but he may well be right. Is he trying to tell us that the board will not extinguish any rights which have been used with the past 90 years? If he is not telling us that, there was little point in what he said.

Lord Thomas of Gwydir

My Lords, I am certainly not trying to tell the House that. I am saying that the board has negotiated with interested people over the past few weeks and has reached an accommodation on registration. Rights will be extinguished if they have not been exercised for over 90 years, as I mentioned earlier, and if they were—

Lord Elton

My Lords, if my noble friend will forgive me, it is late at night and we are not at Committee stage, we are in proceedings after Third Reading. It is customary that each of us should speak only once. I always enjoy listening to the noble Lord, but perhaps he may feel he has done enough.

Lord Thomas of Gwydir

My Lords, I was directly asked what my views were.

Lord Howie of Troon

It was my fault!

Lord Thomas of Gwydir

In that case, I shall not reply except to say that the rights are not extinguished; the right to register is there because of the negotiations which have taken place.

10.45 p.m.

Earl Jellicoe

My Lords, I have not yet spoken on this series of amendments, so perhaps I may make three points briefly. First, I wish to associate myself with what my noble friend Lord Elton said. A considerable advance has been made since the matter was considered in the Select Committee. We owe that in large part to the noble Lord, Lord Cornwallis.

Secondly, I was concerned to hear what was said about the attitude of the board. I believe it has been misstated. Yes, the board will have the right to challenge a right when it has been registered, but there is no question of automatic challenge. It would wish to investigate it but there is no question of automatically challenging each and every right that has been registered. I speak with the authority of the board on that.

Thirdly, I feel strongly that we are in deep legal water here. Accepting that advance has been made, that does not mean that the matter could not be looked at further in another place. I believe that that could well be the right course to pursue.

Lord McNair

My Lords, I shall not detain the House much longer; we have already been speaking on the amendments for 18 minutes. I have to say, however, that the noble Earl has unwittingly illustrated one of the major problems which has been apparent since before the Bill appeared. It is the problem that independent service providers have had in their dealings with the British Waterways Board. The board is quite able and likely to say one thing to the noble Earl and another face to face with its customers. That may seem contentious but it has been asserted to me by so many different people in so many different ways that I am sure it is true.

We are not talking here about people who happen to be lord of a manor and who suddenly pop up and say, "In 1800 I had a right to do this or that". The British Waterways Board is not bothered with those rights. What it is bothered with is people who have worked hard for 20 or 30 years to develop a modest business. Part of the value and profit of the business is based on the fact that they do not have to pay large sums to the board.

The board is in a difficult financial situation. It has been told, "Do whatever you can to reduce the government grant". This is one of the things it is doing or attempting to do to reduce its dependence on the Treasury. It wants to be able to charge people for the rights they now have. I shall not press the amendments, but I am glad that we have had this debate and that the comments I have just made are on the record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19E to 19H not moved.]

Lord Cornwallis moved Amendment No. 19J:

Page 16, line 13, leave out ("any") and insert ("that").

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 19K: Page 16, line 14, leave out ("on the date of the passing of this Act").

On Question, amendment agreed to.

Lord Cornwallis moved Amendment No. 19L:

Page 16, line 42, at end insert ("(6) Nothing in subsection (2) above shall affect any right under any provision to which this section applies relating to an inland waterway in respect of which any resolution has been passed under subsection (1) above, if a claim with respect to that right has been registered under subsection (10) below on an application made in accordance with subsection (11) below within a period of one year beginning with the day appointed as the appointed day in relation to that waterway. (7) The Board shall maintain at their principal place of business for the time being a register for the purposes of registering under subsection (10) below any claim to exercise a right such as is referred to in subsection (6) above, and that register shall be open to inspection by the public at all reasonable times. (8) As soon as reasonably practicable after they pass any resolution under subsection (1) above the Board shall—

1. (a) publish the required notice in the London Gazette (if the waterway is situated in England or Wales) or in the Edinburgh Gazette (if the waterway is situated in Scotland) and, in addition, in at least one newspaper circulated in the area where the waterway is situated, and
2. (b) serve a copy of the required notice together with a copy of this section on every local authority in whose area any portion of the inland waterway specified in the resolution is situated

(9) In subsection (8) above—

1. (a) the required notice is a notice which—
1. (i) identifies the inland waterway specified in the resolution passed under subsection (2) above;
2. (ii) states that the Board is required by subsection (7) above to maintain a register of any claim in relation to that waterway in respect of which an application has been made in accordance with subsection (11) below;
3. (iii) names the place where the register can be inspected by the public at all reasonable times; and
4. (iv) sets out a concise summary of the provisions of this section; and
2. (b) "local authority" means, in England and Wales, the council of a county, district, London borough, parish or community and, in Scotland, a regional council, an islands council and a district council.

(10) The Board shall, on an application made in accordance with subsection (II) below, register any claim to exercise a right such as is referred to in subsection (7) above. (11) An application for registration under subsection (10) above of a claim to exercise such a right—

1. (a) may be made to the Board by any person claiming to be entitled to exercise the right; and
2. (b) shall specify the right to be registered and the name and address of the applicant;

and the provisions of section 17 of the Act of 1983 shall apply to any such application as they apply to any notice authorised to be served under the Act. (12) The Board may at any time in the case of a right in respect of which a claim has been registered under subsection (10) above serve on the person who registered the claim or on any person whom they, after reasonable enquiry, know or believe to be his successor in title a written notice—

1. (a) stating that the right will be extinguished by virtue of this subsection on a date specified in the notice (being a date no earlier than six months after the date of the notice), and
2. (b) explaining the effect of subsection (13) below; and thereupon the right shall be extinguished on the date specified in the notice but the Board may only extinguish under this subsection a right which would, but for subsection (6) above, have been extinguished by virtue of subsection (2) above.

(13) Where a right is extinguished under subsection (12) above, the Board shall pay compensation to any person entitled to exercise the right if a claim in respect of that right has been duly registered under subsection (10) above (whether by him or by any predecessor in title); and, in default of agreement, the amount of any such compensation shall be determined by the tribunal. (14) The registration under subsection (10) above of a claim to exercise a right under a provision to which this section applies shall not be evidence that the claim has any validity; and nothing in subsections (6) to (13) above shall prevent the Board from challenging in any way whatsoever the validity of any such claim. (15) For the purposes of this section "inland waterway" includes a part of an inland waterway.").

On Question, amendment agreed to.

[Amendment No. 19M not moved.]

Clause 26 [Power to appropriate parts of docks]:

[Amendment No. 20 not moved.]

Clause 37 [Application to Scotland]:

Earl Jellicoe moved Amendment No. 20A: Page 18, line 44, at beginning insert ("(1) Subject to subsection (2) below,").

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

Earl Jellicoe moved Amendment No. 21A:

Page 18, line 44, at end insert ("(2) Nothing in this Act shall apply to Loch Lochy, Loch Oich, Loch Ness or Loch Dochfour, the boundaries of which are shown edged in red on the plan marked "The Scottish Lochs", of which five copies have been signed on behalf of the Board by Richard Jeremy Duffy, the Solicitor and Secretary to the Board, and on behalf of the Highland Regional Council by Ronald Harley Stevenson, the Chief Executive of the said Council, and deposited respectively in—

1. (a) the office of the Clerk of the Parliaments, House of Lords;
2. (b) the Private Bill Office of the House of Commons;
3. (c) the Department of the Environment;
4. (d) the principal office of the Board; and
5. (e) the office of the Chief Executive of the Highland Regional Council.").

On Question, amendment agreed to.

10.54 p.m.

Earl Jellicoe

My Lords, I beg to move, That the Bill do now pass.

The Bill has had a long and rather arduous journey through your Lordships' House. I must confess that that journey has been far longer and more arduous than I thought when in an unguarded moment I agreed to take the Bill on board. It had its Second Reading a year ago. The Select Committee sessions were long and intensive. There were over 600 pages of evidence and submissions. Following our rather bizarre Third Reading, there has been a great deal of intensive consultation leading to some important amendments being drawn up.

I shall not go over the ground traversed this evening at any length but I wish to comment on three areas. First, I wish to comment on the recognition—that was due in large part to the persuasive abilities of my noble friend Lord Burton —of the special position of the four locks along the Caledonian Canal. I believe the amendments on that matter are an important series of amendments and I wish once again to acknowledge the contribution of all concerned. I acknowledge the contribution made by my noble friend Lord Gray of Contin, by the Highland Regional Council, which has put itself to a great deal of trouble and effort and, if I may say so sotto voce, by the British Waterways Board. All those parties have made a contribution to at least the partial solution of what I might term the Burton question.

Further, there is the important amendment which we have just been discussing on the extinguishment of rights. I do not think I need add to what has been said on that. Last but by no means least there have been the amendments concerned with entry. They bear the signature of the noble Lord, Lord Cornwallis.

On the question of entry I should like to make the following brief comments, and I do so with the authority of the, board. Except in emergencies the board will always try to negotiate rights of entry by private treaty before it exercises those powers for the purposes of undertaking repairs and maintenance on the waterways. I am glad to add that it has been agreed with the National Farmers Union and the Country Landowners' Association that a period of 28 days should be allowed for that purpose. Thereafter, if the parties have not agreed terms the formal procedures under the provisions of the Bill may then be followed. The board is determined —and I have heard the criticisms which have been made—to cultivate the best of possible terms with its neighbours and regards that arrangement as an example of the proper regulation between neighbours of their affairs.

For those reasons all the amendments of the noble Lord, Lord Cornwallis, to Part II of the Bill have the support of the board, which, in addition, has prepared a model code of practice for the exercise of its powers of entry on land. That code of practice addresses itself to the detail of what will happen in the exercise of those powers when conferred by Parliament so that farmers, landowners and others will know what to expect of the board and how their interests will be protected.

In conclusion, I should like to thank warmly the noble and learned Lord, Lord Brightman, all the members of his Select Committee and all those who have taken part in these debates and in our less public consultations. In that context, I have very much in mind my noble friends Lord Kinnoull and Lord Elton and the noble Baroness, Lady White. By the same token it would be wrong of me not to express my gratitude to all the many interested organisations, not least the BWB, which have played so constructive a part in our rather last minute but I believe useful and intensive process of consultation.

Moved, That the Bill do now pass.—(Earl Jellicoe.)

Lord Shackleton

My Lords, I do not think that I have ever before sat through such a lengthy and unusual discussion in your Lordships' House. On the whole it reflects credit on the House of Lords, although it is a matter to which I think the Chairman of Committees might pay some attention, particularly in relation to the failure to deal with some of the important issues at an earlier stage. That is why your Lordships can be pleased with the way we have dealt with the Bill.

Nonetheless there are a number of questions which have not been fully answered. Much depends on the way in which the British Waterways Board conducts its activities, particularly in relation to the amendments which have just been moved by the noble Lord, Lord McNair. I have studied the Bill closely to see whether it would be possible to lay an obligation on the British Waterways Board always to behave in an acceptable fashion. Indeed, the Government have said that nationalised industries should behave in the same way as a private citizen. However, I know of cases in which they have not.

I should like to refer to one example which has come to my attention, namely that of an individual who entered into negotiations with the British Waterways Board to acquire a property to develop as a boatyard. He happens to be a trained engineer and fully qualified to do so. He reached agreement with the board but he was gazumped. I wrote to the chairman of the British Waterways Board, who replied very courteously and made clear that it was his duty to obtain the maximum amount of money possible and therefore he could not refuse the opportunity of a better return. Indeed, he was willing to put the matter out to auction. I think that that is unacceptable. Furthermore, in Scotland it would not be legal because in Scotland an agreement which has been reached but which is not the subject of a contract may still be binding. In the case I mentioned there was no contract. Therefore the individual had all the expense. He raised the money for the purchase and is now being charged for undoing the work that he had already done. I can only say that I find that unacceptable behaviour.

I do not doubt that the British Waterways Board felt that it was its duty to do what it did and that it should not turn down the opportunity of getting good money. It may even have consulted the Government about it. But I believe that it is undesirable and I should have thought that most noble Lords, seeing gazumping in that way, would say if an individual had done it that he was not a gentleman.

There was an occasion when somebody offered me more money for a small bit of land, but I had already accepted an offer. It did not occur to me not to stand by my agreement. I am sure that that applies to all your Lordships. I believe that it is undesirable that the British Waterways Board can do so and get away with it.

It may be a matter of amending the law generally but it is relevant to some of the issues that we have been discussing quite recently, especially the points of the noble Lords, Lord Cornwallis and Lord McNair. I expect that the noble Earl, Lord Jellicoe, did not realise what he was taking on when he accepted this responsibility. I should like to congratulate him on steering it through. I believe that it is a matter to which some attention should be paid by the British Waterways Board.

Lord Lucas of Chilworth

My Lords, I return to the point at which I started in March last year, when I described the attitude of the British Waterways Board as somewhat cavalier. We come now to this stage of the Bill—as the noble Lord, Lord Shackleton, said —in a most bizarre way, which I hope will not be repeated on other occasions.

I put the blame quite firmly not at the feet of our procedures but at the feet of the British Waterways Board. I have watched and taken part in a number of discussions since March last year. I have been very upset, to say the least, at the grudging manner in which officials of that board have dealt with the many objections and points put to them. There is little doubt that some of the objectors have come a little late into the game and, as I believe the noble and learned Lord, Lord Brightman, said earlier, it might have been better had some of the points been the subject of petition. Petitioners can petition without incurring the expense of counsel. They can just stand in front of the committee and make their points, to which the committee is bound to give full and proper consideration.

That does not mean to say that I do not have admiration for the noble and learned Lord's chairmanship and conduct of the committee, which has done a splendid job. The report, which is now increasingly being used as a vehicle to advise your Lordships, still leaves some matters undone. Over the past few days I have watched the British Waterways Board back down in the face of much opposition to its proposals from my noble friend Lord Gray of Contin, the noble Lord, Lord Cornwallis, and others. It is quite reprehensible that the board should wait until that time to give way and that we are here at this hour in a most extraordinary piece of procedure, the like of which I cannot remember in many years in your Lordships' House. I blame it upon the board.

I have one other small point to raise; namely, the question of appeals. At Second Reading, in presenting the Bill to your Lordships, my noble friend Lord Jellicoe drew attention to the question of a moratorium for five years in the case of resident houseboat owners. It is the subject of paragraphs 26 and 27 of the Select Committee's report. If your Lordships consider those paragraphs you will see that there had to be a good deal of weaselling at the end of which the board accepted that there should be some arbitration panel.

When my noble friend Lord Jellicoe wound up at Second Reading, he gave me an assurance in response to my comment in that debate about an appeals procedure. That assurance is in Hansard. It is late; I shall not quote it. I know that my noble friend will accept that it is in the report of his winding up speech in March last year. But nothing has been done by way of an appeals procedure. At the end of the moratorium there is nothing whatever. There is no provision for a residential houseboat owner to appeal. I believe that that denies the outwardness, the openness, of the board's actions. I am bitterly disappointed.

I agree with my noble friend Lord Jellicoe that thanks are due to many people. I wish to associate myself with those thanks. However, as to the generosity of the board, it is a thin gruel that it has produced for us to sup tonight.

Lord McIntosh of Haringey

My Lords, it would be impertinent of me—I have done no work on the Bill —to intervene again on the merits of any aspect of it. I am conscious that my intervention has been only at Second Reading and tonight, and that a great deal of work by the noble Earl, Lord Jellicoe, the committee and many other noble Lords, including notably the noble Lord, Lord McNair, has contributed to consideration of the Bill.

I rise on the Motion that the Bill do now pass, only to say that on this occasion we have stretched Private Bill procedure to the very limit of its validity. I question whether it is possible for a Bill with so many controversial matters to go through Private Bill procedure. It must lead us to think again and to reinforce the doubts that have already been expressed about Private Bill procedure in Parliament. I cannot believe that it is in the interests of Parliament that we should go through this amount of work and end up with a Bill that still requires substantial further consideration in another place.

Lord Harvington

My Lords, I must declare an interest in the matter. I am Vice President of the Inland Waterways Association. It is, I suppose, the largest group of people who use the inland waterways for recreation purposes. I have cruised them extensively, although at this time my boat is based in Europe.

I wish to congratulate, as others have done, the noble and learned Lord, Lord Brightman, and his committee on its work. It has been a Herculean task. The committee was most fortunate to have someone of the nature and temperament of the noble and learned Lord, Lord Brightman, in the chair. The whole waterways business has benefited much from his leadership and the committee's work.

The Inland Waterways Association was advised not to petition the House in the hope that the Bill would be changed to its satisfaction in this Chamber. The association is a leading organisation in this field. It was formed by the late Robert Aickman in 1946 to promote the retention, restoration and use of the inland waterways of England and Wales.

Members of your Lordships' House were sufficiently convinced of the undesirable nature of the Bill, as drafted, to meet representatives of British Waterways about it. They were convinced that users would suffer. They believed that if the British Waterways Board was not prepared to get the main outstanding issues right in this House, it did not deserve to achieve the Bill.

I am pleased to say that the board was prepared to move its stance on a number of issues. I congratulate those noble Lords who were involved and the representatives of British Waterways for the way forward that they have indicated. They have saved the rest of us a great deal of work today.

I must pay a heartfelt tribute to my noble friend Lord Jellicoe on behalf of all the people who use the waterways for pleasure. He has worked incredibly hard not only during the past few days but for weeks to achieve a reasonable situation. That has not been easy for him. We owe him a great debt of gratitude and we shall always remember what he has done. My noble friend has brought us to a reasonable situation so that we can get on.

The association has always said that it agreed some parts of the Bill to be necessary in order for the board to manage its system properly, in particular the new power that it is seeking to give immediate access to waterside land in cases of emergency. The association fully understands the need for the power and supports the granting of the power to British Waterways. Nevertheless, the association is greatly concerned that the Bill does not give enough prominence to navigation, which is very much its business. In its view, the waterways in the board's care are fundamentally man-made features created for the purpose of navigation. Their beauty, wildlife, archaeological interest and recreational value are dependent on their management in a broadly traditional way, with navigation as an essential element. One should point out that this is the only form of transport whose use positively improves the track. The deep water maintenance boats of British Waterways, as was pointed out by the noble Lord, Lord McNair, do by their very use greatly improve the waterways. In fact, all movement of boats on waterways do positive good and not harm; that is, unless people are idiotic enough to drive them too fast. and I hope that if they do they will be dealt with accordingly.

In a number of areas the powers which would be conferred by the Bill are still excessive for their reasonable purposes and are sometimes inappropriate to the problem. They do not provide for consultation and appeal where such provisions are clearly necessary for the prevention of unreasonable interference with the liberty of the individual. The association, therefore, will be petitioning in another place to give elected representatives an opportunity to put these matters right.

There is widespread and deep anxiety among Inland Waterways Association members that, despite the real improvements in many aspects of their work in recent years, the board is currently excessively concerned with increasing revenue and reducing expenditure. That misdirection of effort is currently seen in reduced maintenance of remainder waterways —as your Lordships have heard, they are those which were so desecrated in the 1968 Act—in attempts to sell waterways under restoration, in excessive increases in some fees and charges, and in disproportionate use of time by middle management in seeking new and often inappropriate sources of revenue.

It is widely feared that the Bill in its present form will reinforce those undesirable trends. In particular, British Waterways has recently announced auctions of property in Humberside and in the South East.

The association is anxious that, despite protestations to the contrary from the board, parts of the waterway heritage have been sold off; for example, lock cottages and other historical waterway buildings. That process will continue unless steps are taken.

Owing to the pressure of time, it will obviously be more appropriate for those steps to be taken in another place later this year in a new Parliament. Of course this Bill can carry over into a new Parliament because for this purpose dissolutions do not matter.

In addition, some buildings which are not of great interest are being sold for a quick monetary return at a time when the property market is heavily depressed. If the British Waterways Board is so starved of funds that it cannot keep those properties and obtain a continuing rent from them, it should at least wait until there is a chance of achieving a better market price. There are some indications that British Waterways may become more open. If that is so, that is to the good. I cannot emphasise too strongly that if it had consulted the Inland Waterways Association and other waterway interests before promoting the Bill, it would have had an opportunity to amend it to everyone's satisfaction before it was published, thus saving the taxpayer a great deal of money. Your Lordships will know well that it always pays to roll the pitch.

On the whole there have been good relations since the dissolution of the British Transport Commission. When the Minister of Transport, Mr. Ernest Marples, decided to create the British Waterways Board in 1962 the work was carried out by the Government and those of us who were trying to get things done throughout the late 1950s. It fell to the noble Baroness, Lady Castle, then Mrs. Barbara Castle, Minister of Transport, to put the arrangements in legislative order. An entirely new atmosphere came into being.

The British Waterways Board was created under its chairman, Sir John Horton, who had the task of taking over a thoroughly run-down organisation. Our confidence in him and his ability to raise the low morale at the time was thoroughly justified. Before he retired we saw the board much as we see it today. I should not like to think that, after such a long period of good, a substantial error may be made today. I speak with 30 years' experience of our inland waterways system.

I am sure that when the Bill reaches another place there will be those who make the final adjustments to put it right, as I am sure the board will do itself, given time to consider what I have said and, indeed, what others have said better than I could this evening.

As the House knows, I do not very often take up its time, but as this has always been my subject I felt it right to join in the debate this evening. I see that the Chief Opposition Whip does not altogether agree with me but I cannot help that.

We must remember that our waterways are a great national park which take up no room at all. They are a great asset to the country which people are enjoying in ever larger numbers. Those who know anything about canals will know that what was done in the 1960s has been of enormous benefit to the users of our system.

11.15 p.m.

Lord Brightman

My Lords, I promise to be brief. I thank your Lordships for the kind words spoken about the work of the committee.

As regards consolidation, there is an urgent need to consolidate the various Acts of Parliament which define the rights and duties of the British Waterways Board. As the committee said in its report, legislation concerning British Waterways has developed piecemeal over the past three decades resulting in a confusing web of provisions. There was a total of seven Acts of Parliament passed between 1954 and 1983 which govern the activities of the board, often in minute detail. Now there will be eight. That is not a satisfactory situation.

Waterway users are not people who have ready access to lawyers. There were 19 petitions against the Bill and not one of the petitioners who ultimately appeared before us was represented by a solicitor or counsel. If this Bill is to receive the approval of Parliament it should be on the clear understanding that the next Bill which comes, promoted by the British Waterways Board, will be consolidated to put together a multitude of enactments in some readable form.

As regards public relations, there is no doubt at all in my opinion that relations between the board and its customers, the river and canal users, are not universally good. That was clearly evident to the committee in the course of its hearings. I do not seek to attribute blame. What is needed is some central department to which waterway users can take their complaints if they cannot get satisfaction locally. There will be some need for finance but in my opinion it will be money well spent. That is dealt with in paragraph 54 of our report.

I wonder whether this saga should be looked at by those who are concerned with the business of this House. Is it right that your Lordships should be inflicted with some 47 possibly hostile amendments at this stage in the passage of the Bill? Ought not protestors to petition in the usual way so that your Lordships have the benefit of the Select Committee's opinion reached after evidence has been received and probed?

I should like to pay tribute to the great assistance given to the committee by the 14 petitioners who ultimately appeared before us. The hearings were a sterling effort on the part of the petitioners who in many cases took great trouble to back up their oral evidence with printed and illustrated texts. Although we did not always accept their representations, at least we were fully enabled to appreciate their points of view. I should also like to pay tribute to the assistance given to us by the committee's clerk who had the difficult, almost impossible, task of distilling a readable report out of a mass of detail. I believe that the Bill is as good as we can expect. I hope that it will have a fair wind in another place.

Baroness White

My Lords, in the circumstances I am not going to read out the speech that I have prepared. But there is one question which I wish to ask the Government Front Bench which arises from the remarks made by the noble and learned Lord, Lord Brightman, and my noble friend Lord McIntosh of Haringey. We have had great difficulty over the Bill processes in this particular example. As a House are we to have the opportunity to discuss the cognate Bill which I believe has just completed its passage today in the other place? I believe it is the Transport and Works Bill. It purports to change the whole balance of a Private Member's Bill and the other ways of dealing with the kind of problem we have been discussing today. Is that Bill coming to this House and, if so, when?

Lord Elton

My Lords, I shall also be brief. I have played a very small part on this Bill. As I live many scores of miles from the manor that I mentioned earlier, my only interest is in the procedure which the noble and learned Lord and the noble Baroness have drawn to our attention. The fact is that the Bill came to Third Reading in a state which meant that there were sufficient of your Lordships who felt that it should not pass and put it in peril. The choice had then to be taken either magnanimously to try to put it right or petulantly to reject it. In the circumstances I believe that noble Lords were right to do as they did. With the noble and learned Lord and most other noble Lords, I believe that some means should be found of sweeping objections into committee and not allowing them to surface later. On this occasion the only comfort is that we are not the revising House and therefore the imperfections which are bound to result from this hasty procedure can be remedied.

Lord McNair

My Lords, I dealt in some detail with certain aspects of the Bill so I shall not go into those again. I begin by saying that my overall impression of the board's behaviour both during the passage of this Bill and in other respects is that it is not worthy of the custodian of such a large part of our national heritage. In his evidence to the Select Committee the board's chairman, Mr. David Ingman, made some significant remarks. He was, surprised by the potential that lies in the waterways". Again, he said: and if I were to capture a sentence it would be to develop it into one of the most valuable environmental assets in the UK". The word that startles me is "into". Surely the canal network is already a great environmental asset. In his next answer all is made very clear. One of his aims is to provide, an attractive setting for living and working". In other words, a view of the canal, not a view from the canal. That is the crux of the matter.

I am sure that underlying the controversy and the bad relations which this Bill has caused and which existed before the Bill came into being is the clash of cultures between the board's top management, many of whom have been imported from industry, and those who own small businesses which provide services to those who own boats or want to hire them. Very few of these independent service providers have what many "proper business people" would consider a successful business. They probably have a small return on capital but an extremely satisfying lifestyle. That is what they want. The board's policy appears to downgrade the Inland Waterways Amenity Advisory Council and consult individual user groups, a technique otherwise known as divide and rule, as practised by a certain Roman emperor whose name I cannot remember.

During one such consultation two representatives of the Association of Pleasure Craft Operators visited Mr. Ingman at British Waterways' Little Venice office. I am told that he said to them that he was glad of an opportunity to consult and that he would start by explaining what he meant by consultation, which was that he talked and they listened. He proceeded to lecture his hapless audience of two people for more than an hour with the aid of a flip chart. This arrogance is found in countless contacts which British Waterways Board has with service providers. I have pages and pages detailing appalling abuse of power. In one case British Waterways tried to prevent the owner of a boatyard from obtaining planning permission to extend the kitchen of a pub he owned on the same site unless the owner repaired the canal wall on the opposite side of the canal, which he did not own and which was nothing to do with him.

Several reports concern the commercial manager of the north west region. One in particular concerns a company called Wixall Marine. There was a meeting at which four people were present. They have all sworn affidavits about the fact that the meeting took place and about what was decided at the meeting, apparently amicably. British Waterways Board denied that the meeting ever took place. That is very strange.

The process of downgrading IWAAC is not entirely separated from the fact that the board has already removed from that body one of its most vociferous critics. This person was referred to by the chairman of the IWA in these terms: That they chose to prosecute"— for a protest withholding of dues— someone whose love and respect for the waterways is legendary is hardly likely to endear British Waterways to its customers". I feel that a new position must be created of an ombudsman for the waterways. I also feel that the Monopolies and Mergers Commission, which suggested in its last report on the waterways that another report should be prepared—the last one was 1988—should have another look. Perhaps it is also time for the Environment Select Committee of the House of Commons to do the same. What I would really like to see is a Royal Commission on the inland waterways. There is obviously great scope for improvement in British Waterways' maintenance activities and I feel sure that opening up these activities to competitive tendering would make the most of available resources.

On that there are two specific points which I should like to raise. First—this is based on information I received today—when comparing costs with outside contractors I understand that British Waterways chooses to ignore its own labour costs, thus making any quotations it receives from outside contractors appear uncompetitive. Secondly, I understand that British Waterways engaged someone specifically to develop its competitive tendering activities. However, I also believe that this person is no longer with British Waterways. I am not sure why, but I hope that it will move in that direction. It is quite apparent that many unsavoury things are going on. We need to find out exactly what they are before the service providers and the board can proceed in a spirit of constructive co-operation, which is what everyone would want.

There is a further issue regarding maintenance which concerns the disposal of waste. This is a neutral point but it is a nettle which must be grasped in order for maintenance to be carried out properly. British Waterways recently sold its Bull's Bridge maintenance depot to Tesco and then found that it needed another one but had not allowed sufficient funds for its creation. That is very strange and lacking in foresight. The problem is that tipping licences are now required for tipping dredging spoil. Tipping a largely clay sludge on the towpath, as the board's solicitor suggested to me the other day as the solution, is unlikely to endear British Waterways to walkers, boaters or anglers.

That brings me to one final point. British Waterways states that it should be able to capitalise its assets. Does it always try to get the best price for a property? This point has been raised before in our debate but I should like to be sure that, for example, property is not disposed of at a discount to board employees or anything of that kind.

I should like to endorse most of the congratulations and thanks expressed by other speakers and to apologise to the noble Earl if my comments have upset him. I assure him that there was nothing personal there.

Lord Greenway

My Lords, I hesitate to intervene again but I shall do so only briefly. It is quite clear that a number of areas of concern still remain. I can only hope that these will be given due and careful consideration in another place. I should like to place on record my thanks to the noble Earl and to the board for the considerable movement they have made towards meeting the concerns of the boating authorities. As a result, the Bill has certainly been improved. Having said that, I am bound to say that the way in which the Bill has been handled—I bear no disrespect to the noble Earl in person—has to some extent, I fear, dented the trust previously placed in the board by the boating fraternity. That must be a matter for regret.

Lord Burton

My Lords, I should like to thank my noble friend Lord Jellicoe. I should also like to draw attention to the report of the House of Commons Environment Select Committee of July 1989 on the British Waterways Board. It stated: To proceed by agreement where sensitive local issues are involved is clearly the most desirable course and we recommend that the board should do so wherever possible". I think that all those present must agree that that has not been complied with. The noble Lord, Lord McNair, referred to a meeting that it was alleged did not take place. I am pleased to say that the meeting we had in Spean Bridge which was widely attended was tape recorded. An allegation was thrown at us later on that a statement had not been made. We were able to produce the tape to show that it had been made.

There is enormous dissatisfaction with the management of the board. That has been unanimous from all those who have spoken tonight. The report of the noble and learned Lord, Lord Brightman, made an interesting point about having a central body for public relations. We used to have a committee which met in Inverness. It was obviously a long way away from board headquarters. All the people interested —local authority members, the owners of fishing boats and so on—could attend. We found that this was most useful. The chairman came from London and he was able to take straight back to the British Waterways Board what the committee had recommended. However, this has now been done away with. I do not know why. Perhaps it was not to the liking of the board that we should have a roundabout method like that.

Finally, perhaps I may make one suggestion for a way forward out of a part of this dilemma. The Monopolies and Mergers Commission reported on the board in 1987 and recommended that another report should be published in five years' time. That time falls due this spring. I have asked my noble friend the Minister kindly to let me know whether it is the intention that the commission makes a further report. She has told me that it is the intention to have one this summer. It produced some very good recommendations in its last report. Therefore, if we can have a further report on the board that may produce a way forward on this occasion.

Viscount Astor

My Lords, a few points were raised to which I think I should respond. The noble Baroness, Lady White, asked me about various policies with regard to future Bills. I cannot answer that this evening. But I shall draw the point she made to the attention of my noble friend the Leader of the House.

The noble Lord, Lord McNair, mentioned the Inland Waterways Amenity Advisory Council. My right honourable friend the Secretary of State must take into account the general fitness for serving on public bodies of people appointed to the council. I believe—

Lord McNair

My Lords, I trust that the noble Viscount will allow me to intervene. I have had sight of a letter in which it is alleged that a member of the legal department, or whatever it is called, of the board has said that it was out to prosecute the person because—

Viscount Astor

My Lords, I must point out to the noble Lord that he is out of order; indeed, he has already spoken once. Perhaps I may finish my point. I believe that the person to whom he was referring was a director of a company which was convicted of failure to pay the British Waterways Board licence fees. The Government cannot condone deliberate failure to pay charges that are legally due.

Many noble Lords this evening have mentioned the customer relations with the British Waterways Board. The Government are anxious that there should be good relationships between the board and the users of waterways—not only boaters but anglers, walkers, canoeists, nature watchers and all others. That is in accordance with the principles of the Citizen's Charter. We hope that there will be good relationships between everyone. In conclusion, I trust that the Bill will now be able to proceed to another place.

Lord McIntosh of Haringey

My Lords, I have no desire to delay the House. But before the Minister sits down will he comment on the specific point that the Private Bill procedure is being stretched to or even beyond its limit if such major issues of public policy are introduced in Private Bills? That is what I want the Government to respond to.

Viscount Astor

My Lords, I can only say, as I said earlier, that I shall bring the noble Lord's remarks to the attention of my noble friend the Leader of the House.

Earl Jellicoe

My Lords, I think that it may be agreeable if at this comparatively late hour I were to confine my concluding narration to the following few words: I commend the Bill to your Lordships.

On Question, Bill passed, and sent to the Commons.