Water Resources Bill

Part of Second Reading Committee – in the House of Commons at 12:00 am on 13 March 1968.

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Photo of Mr John Temple Mr John Temple , City of Chester 12:00, 13 March 1968

There is no need for me to upset unduly the tranquility of these proceedings, and, as the Parliamentary Secretary has just said, it is a very pleasant morning. The only advantage in being in Opposition in this Parliament is that sitting on this side of the Committee I have the pleasure of watching the Thames flow by, rather than watching a blank wall. When one is considering water legislation, the fact that one can see the Thames flowing by tends to concentrate one's mind a little and rather relaxes the whole situation.

As I walked along the Embankment this morning I wondered why the Government had decided to bring in such a narrow Bill, dealing with only one specific point. The Parliamentary Secretary has told us that there is a shortage of Government time. That is the Government's fault, because they are neglecting what I call the bread-and-butter procedures of this House for the rather esoteric and ideological procedures which motivate the Party at present in power. I deprecate that very much. It is a very poor excuse.

The other excuse which the Parliamentary Secretary gave was that he lacked expert advice. Looking at the Members of this Committee and remembering the Members of the Committee which studied the Water Resources Bill when it went through Parliament in 1963, I find that I am the only veteran of that Bill who has been appointed to this Committee. I probably spoke more on that Bill as a backbencher than any other Member on either side of the Committee. As I walked along the Embankment this morning I said to myself "There must be some important reason why the Government have only dipped their little toes in water legislation". Incidentally, I understand that this is the first water legislation which this Government have brought before the House.

The Parliamentary Secretary, who gave a fair description of the Bill, did not mention the immense part which the present Secretary of State for Wales played in the proceedings on the Water Resources Bill, in 1963. If hon. Members care to look up the report of the Committee stage they will find that none other than their right hon. Friend the Secretary of State for Wales queried Clause 27, and drew attention to the fact that that Clause—which is now Section 27 of the Water Resources Act—might be defective, and he pointed out the very point which the Government are now going to put right.

I congratulate the right hon. Member for Anglesey (Mr. Cledwyn Hughes). It shows how valuable Oppositions can be. Sometimes Oppositions are right, as on this occasion was the right hon. Gentleman who is now Secretary of State for Wales. It is amazing how a success in Standing Committee can accelerate promotion, since he got promotion from the "effluent society"—a society into which I was put by my noble Friend, Lord Nugent—the then Member for Guildford. He promoted me to be a member of the "effluent society", for what he called my staunch work in water legislation.

During the passage of the 1963 legislation the Secretary of State for Wales put forward a rather controversial point. I believe that this is why the Government are not today legislating on a wider basis. This point will interest the hon. Member for Ebbw Vale (Mr. Michael Foot), who was not on that Committee but who no doubt has read the report of the proceedings of that Standing Committee. In Committee on the 1963 Bill the Secretary of State for Wales made a most important point. He said that there ought to be a Water Board for Wales.

I should like to know whether the Government have departed from the policy laid down in 1963 by the right hon. Member who is now Secretary of State for Wales. Perhaps the truth is that the Government dare not bring in a more extensive amending Bill because they are frightened that if they open the door in this way they will be pressed to agree to a Water Board for Wales, in which case the proposals that the present Government made when in Opposition would be extensively questioned, and the conclusion would be drawn that yet again there had been a volte face in their major policies.

I thank the Parliamentary Secretary for his careful explanation of the Bill. I have no cause to dissent from the explanation which he has given. I know from studying the Committee proceedings on Clause 27 of the 1963 Measure that the object of that Clause was to preclude frivolous or mischievous applications for a licence to abstract water.

I admit that my hon. Friend the Member for Gloucestershire, South (Mr. Corfield), who was Parliamentary Secretary at the time, was responsible for giving advice which, in the light of subsequent applications to the Court, proved erroneous. This highlights the difficulty of water legislation. It will be unfair to the Government if I do not accept a degree of liability in respect of what has proved to be a defective aspect of Section 27 of the Water Resources Act, which the Bill seeks to amend.

I want to give one short quotation from the remarks of my hon. Friend the Member for Gloucestershire, South, in the Standing Committee, on 28th May, 1963. He said: My advice is that the existence of an Order under the 1945 Act would definitely bring water undertakers into subsection (4) under the heading of negotiations having been started, even if the Order had not confirmed that the compulsory powers were available."—[OFFICIAL REPORT, Standing Committee F, 28th May, 1963, c. 380.] My hon. Friend took advice on this matter from the experts in the Water Division, but at that time those experts were breaking fresh ground. The Parliamentary Secretary said that Parliament was bringing in an entirely new licensing procedure. That is quite true. What he did not say is that Parliament was also bringing in an entirely new charging procedure.

In passing, I want to make a brief reference to the charging procedure, which was not mentioned by the Parliamentary Secretary because it runs concurrently with the licensing procedure, which the Parliamentary Secretary did mention. The charging procedure is also under question at present. A charge is fixed for all abstractions, including abstraction for spray irrigation, and although the abatement procedure is operated in times of low rainfall, there is no provision for abating the charging of spray irrigators when their operations are held up. Unfortunately, they go on paying the same standing charges. This is another small matter which the Parliamentary Secretary may be able to put right by administrative rather than legislative means, but it is a matter which should not be slid over.

I have a modest knowledge of what went on in the formulation of the 1963 Act. It was breaking fresh ground, and I have more than degree of sympathy with the Parliamentary draftsmen. The Parliamentary draftsmen would probably have liked to bring in a much more comprehensive statute than that which was actually produced, but we, as Parliamentarians, understand the great difficulty of getting massive Bills through the House. We live in an era of very complicated, necessarily lengthy legislation, but there is a limit to lengthy legislation and even to non-controversial lengthy legislation such as water legislation. Therefore, I exempt the Water Division of the Ministry of Housing and Local Government—whose staff I happen to know well and whom I respect very much—from any charge in this matter. It was a natural error in a new departure.

Many other errors have become apparent in the working of the Water Resources Act, 1963. I was therefore surprised to hear that the Government, in a non-controversial matter, had decided that time was the governing factor in their decision not to put right other anomalies. The anomaly the Bill seeks to correct is a relatively pressing one. I would not put it much higher than that, since it can be got round by the use of the Private Bill procedure. No one wants that, and therefore we welcome the amendment to the principal Act which is proposed in the Bill.

But there is another amendment which should be made, and I cannot understand why it was not made in the Bill. This relates to Section 27, regarding abstractions of underground water. All the provisions relating to water legislation are somewhat complicated, and I shall shortly refer to the situation concerning the abstraction of underground water in connection with Section 27.

The Parliamentary Secretary explained, in a moderately brief but adequate manner, that he sought to bring about this alteration to Section 27. But there is an additional reason which makes amendment necessary, namely, the procedure envisaged, under directions by the Water Resources Board, for the transference of water between river authorities. Some people imagine that the Bill is designed to help the statutory water undertaker to initiate compulsory purchase proceedings and, at the same time, to be able to satisfy all the other interests concerned that at the end of the day they will have a licence to abstract water from a certain stretch of water.

This was what was called in question in the case of the intake order put forward by the Tees Valley and Cleveland Water Company. I understand that owing to defective legislation the intake proposed was shifted to another part of the river to avoid the Private Bill procedure. The intake now operates from a different part of the river. This action was taken because of a possible challenge in the courts, which the Minister was advised might succeed. It involved a statutory water undertaker who sought to place an intake in a river at a certain point.

There is a much broader point with regard to the transference of water between river authorities. It has always been anticipated that England and Wales would become a sort of water network and that river authorities in one part of the country would make water available to river authorities in another part of the country. It was not thought that a river authority would have any difficulty in getting a licence to abstract, possibly having begun compulsory purchase negotiations, but this would prove to be the case unless the Bill were accepted by Parliament.

So far as I can see the Bill is entirely acceptable. My only object is to point out certain additions which come within the Long Title and also to ask the Government why, when they were opening a chapter of water legislation, they did not put right a number of other known defects in the 1963 Act. I do not think that, in the nature of Parliamentary proceedings, these matters would become unduly protracted. We would offer the Government reasonable facilities for bringing forward amending legislation.

I turn now to the accepted defects in Section 27 which are not covered by the Bill. The Section relates to the abstraction of underground water. I should like to give an example which may help the Committee to understand the point. A large gravel pit or series of gravel pits may be in the ownership of an organisation specially interested in gravel. The pit may contain a good deal of water. The water in the gravel pit may come wholly or mainly from underground—which is normally where gravel pit water comes from. In those circumstances water undertakers or river boards may wish to abstract that water, but they would not wish to have—nor would the owners of the gravel pit desire them to have—an interest in the land covered by the water, namely, the gravel pit. They would merely require a right of access.

There is an extraordinary anomaly in Section 27. In the case of overground water right of access is all that is needed by the statutory water undertaker to take water out of a river. Many experts have considered this point, but nobody can understand why the Department differentiated between overground and underground water.

I am Vice-President of the Association of River Authorities and have seen the correspondence between the Ministry and the Association. It would be fair to say that the Government accept that there is a defect in the provisions concerning the abstraction of water from underground. This is the first occasion on which the Parliamentary Secretary has had charge of a water Bill and I hope that it will be an encouraging experience for him. I hope that he will be able to confirm that the Department will produce an Amendment to cover the question of underground abstraction.

My advisers and I will have a shot at producing an Amendment in Committee. I know something of the Departmental mind, however, and realise that no matter how good a shot we have it will not be acceptable. The Government will make polite and probably helpful noises, and say that they will consider it and bring forward a more satisfactory Amendment on Report. I have no wish to protract the proceedings on the Bill, and therefore suggest that if the Government want to economise on time they should produce an Amendment themselves. I would be in a position to accept it, and we might thereby eliminate the Report stage. That is purely a suggestion, which I put to the Parliamentary Secretary in order to encourage him to get the Bill through quickly. We could have almost a nil Report stage.

There are other matters which should undoubtedly have been incorporated in any amending legislation to the 1963 Act. We are now considering a minimini Bill.

There are defects in Section 32 of the Act. My right hon. Friend the Member for Leeds, South-East (Sir K. Joseph) speaking on behalf of the Government at the time, gave an undertaking on 18th July, 1963, that the Law Society would be consulted with regard to the regulations to be made under Clause 32(3). Those regulations would have been laid before Parliament. This may seem a long time ago, but I have no reason to suppose that the present Government have not assumed the responsibilities which my right hon. Friend gave up.

A long story is attached to these regulations. I have had the opportunity of consultations with the National Farmers' Union on the question of Section 32(2). The Parliamentary Secretary will doubtless agree that there is a defect in this subsection, which deals with successors to licences. These regulations have been delayed, because the Section is defective. This is a serious matter.

I have a copy of the draft regulations which the Minister wisely did not promulgate. They run to an enormous number of sheets of paper and are terribly complicated. They have been put into my hands by the Law Society, and the explanatory memorandum has inadvertently been filed upside down. Even if it were the right way up it would be almost as complicated as the regulations. I am not surprised that the Parliamentary Secretary, in one of his first essays into water legislation, did not particularly want to bring before the House the Water Resources (Succession to Licences) Regulations, 1966, a draft of which I have in my hands. If the Government would like to change the Long Title of the Bill, which they are entitled to do, and bring in amending legislation to Section 32, it will be given a fair wind by this side of the Committee because the successorsto-licences position is in a terrible mess. That is the responsibility of the Government. The only way they can get out of it is by amending the Long Title and bringing in the regulations. I would not like to have the task of dealing with these regulations in the proposed form if they ever come before Parliament.

I always like to tell the Parliamentary Secretary when he has a fair wind, and he has a fair wind on this Bill from the Association of Municipal Corporations, of which I also happen to be Vice-President. But he has a rather more dicey wind from the National Farmers' Union. Yesterday I had the good fortune to have a reasonably long consultation with its representative, a man for whom I have a high regard and who seems to be able to comprehend these extraordinarily complicated matters.

I want to draw attention to the effects of Section 56(5) which deals with the validity of licences and the right to extract surface water for spray irrigation. This matter was looked at carefully in the Year Book of the Association of River Authorities for 1966. Page 154 is entitled "Notes on Cases" and refers to the action between the Rugby Joint Water Board and Walters relating to the extraction of water for purposes of spray irrigation. The Parliamentary Secretary and other interested parties will be aware of the decision of the court, but they may not know that there is a proposal by the South Warwickshire Water Board to issue a series of writs which may or may not be successful.

If they were to be successful they would have an unfortunate effect on the rights, or presumed rights, of spray irrigators. This was not the intention of the Water Resources Act, 1963. Under Section 45 of that Act river authorities already have the power to ration abstractions in dry spells. The procedure under which a statutory water undertaker takes out writs was not envisaged. It was outside the mechanism proposed, and the concept of the principal Act. It is a matter which requires amending legislation.

Section 29(2) of the Act was gone into extremely closely in the Year Book of the Association, and an interesting explanatory article was written by Mr. J. E. Maher, Assistant Secretary to the Country Landowners' Association, dealing with the derogation of protected rights. He was very fair to Parliament. He said that an Act of Parliament is not produced in a sort of Utopia where Solomon is the King. Mr. Maher knew a great deal about Parliamentary procedure. He went on to excuse the Department for making certain errors of judgment at the time when the principal legislation went through. But that does not excuse the Department, when it is opening a chapter of amending legislation, for not taking the opportunity to go a little wider and deal with these technical points. They need to be dealt with here and now.

I have a great deal to do with water and am very interested in all aspects of water legislation. I know many interests on all sides and find them an extremely adaptable, happy and helpful crowd. River authorities work with local authorities and the Ministry, and a very happy approach is always made to all water legislation. There is a determination to make the legislation work. Nobody looks for pitfalls, or sees whether he can make difficulties between various authorities. He tries to make the concept of the Parliamentary draftsmen work.

Later in his article Mr. Maher said: I am unashamedly an empiricist but the weakness of the empirical approach is that the occasion inevitably arises when the bloody Act cannot be made to work and I suggest that Section 29(2) of the Water Resources Act which inhibits a river authority from granting a licence authorising abstraction so as to derogate from protected rights provides one of those occasions. He was fairly forthright. I will make no more reference to his colourful language. It certainly was pretty colourful for a report of the Association of River Authorities. These rights cannot be made to work, and the Section requires amendment.

I think that he is right. His view is endorsed by the National Farmers' Union, and among experts in the field of water I have not met anyone who dissents from it. So from what the Parliamentary Secretary has said it looks as though it will be an inordinately long time before the Government get round to amending this defective legislation. It was the legislation of a Conservative Government, and we take responsibility for it. Mr. Maher made one other sensible suggestion. He said that a close season entirely devoted to amending Acts passed three sessions before … should be envisaged.

My goodness—we should need a terrifically long close season after some of the legislation which has been going through in the first three years of the present Government. We should need a close season of three years. But we should have a close season to deal with some of these points. If I raised all the points which have been brought to my notice I should have to speak for a long time. I am dealing merely with the highlights.

The last highlight which was brought to my attention by the National Farmers' Union concerns Section 24 of the principal Act. I have a marginal note to remind me what that Section is about. It is a long time since 1963, and one cannot tax one's memory too much. I do not claim equality with the Prime Minister in terms of an encyclopaedic memory.

Section 24 should be read in conjunction with Section 57(4), which concerns the power of the authority to make an abatement with regard to licences. I live in the countryside, although not in the hill country. It is the custom for hill farmers to draw their water from rivers and streams which are often a considerable distance above their own holdings. We have all walked through the hills at times and seen the intakes of water for farms in the valley below. In many cases the valley farmer does not own the land on the hill. By an extraordinary mistake in the Principal Act, if the owner has a prescriptive right—or "licence of right", which I think is the terminology of the Act—to abstract water, he is allowed to pay a licence fee at the rate of one-fifth of the licence fee he would have paid if the water had been on his own land.

The owner has always had this prescriptive right but, again due to the mistake in the legislation, the river authority is not allowed to make an abatement in the licence fee, because he is drawing the water from land which is not in his own ownership, although he has always drawn the water from it. Much as the river authorities would like to make this abatement, they are not allowed to do so. I am bringing this matter to the attention of the Government. I can do so in the Second Reading debate, whereas I cannot at later stages.

I have tried to draw aside the curtain concealing some of the defects of the 1963 Act. On the whole the Act is working well, because all concerned with water are determined to make it work well. No one would claim that it is a perfect statute, and certain defects in it are holding up proceedings.

I draw special attention to Section 32. concerning the successors to licences. That is a case where the Minister of the day promotes regulations. The regulations were drawn a couple of years ago, found to be impracticable, withdrawn by the Government, never saw the light of day again, and will not do so until Section 32 is amended.

I draw the attention of this Committee to these factors. The Association of River Authorities has a list of other extraneous factors. I do not want to depress the Parliamentary Secretary; I want to encourage him. He has a lot to do, but he also has a well qualified Water Division, which should be asked to get busy. I feel certain that legislation such as he would propose would be regarded as non-controversial and might well come to a Second Reading Committee such as we are having the privilege of attending this morning. The underlying idea behind Second Reading Committees is that they can cope with Bills that are necessary, but will not excite Parliament, and which, although not receiving any notice in the Press, will be useful throughout the country.

We find this Bill entirely satisfactory in its extraordinarily limited way. I shall have to try to deal with the position of underground water if the Ministry does not pre-empt me. I hope very much that it will, because I do not want the proceedings on the Bill to be unduly protracted.

I thank the Parliamentary Secretary for an entirely satisfactory explanation. The limited provisions of the Bill will have our support in Committee, but we may put down one or two small Amendments.