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Clause 3—(Supplementary Provisions As To Powers Of Local Authorities)

Volume 643: debated on Tuesday 4 July 1961

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Lords Amendment: In page 3, line 37, at end insert:

"(4) Nothing in the foregoing provisions of this Act relating to maintenance and management operations shall authorise the carrying out by a local authority of any such operations so as to affect injuriously any works or property belonging to, or the carrying on of their statutory undertaking by, any statutory undertakers, except with the consent in writing of the statutory undertakers:
Provided that consent for the purposes of this subsection shall not be required if it is withheld unreasonably, and any question whether any such consent has been withheld unreasonably shall be referred to and determined by the Secretary of State."

I beg to move, That this House doth agree with the Lords in the said Amendment.

The purpose of the Amendment is to ensure that statutory undertakers, such as docks and harbours and railways and canal authorities, should have an opportunity to advise on any maintenance and management operations likely to affect their interests. Operations under flood prevention schemes are already covered by the procedure of the Second Schedule, but, as the Bill stands, a local authority can carry out maintenance and management operations simply by giving due notice of entry. Under the Amendment, local authorities will be required to consult the statutory undertaking concerned, and any disputes can be settled by the Secretary of State for Scotland. Local authorities are familiar with the procedure and there is ample precedent for the provision.

This is something entirely new. The strange thing is that there was no discussion on this issue even in another place. It passed without comment. The Government owe the House an explanation of why it was not until the very last lap on Report in another place that the Government saw fit to make this Amendment.

I am not entirely convinced of the need for it. The Amendment is strictly limited to maintenance and management operations. That presupposes that there are watercourse barriers and the ancillary apparatus to be maintained. Statutory undertakers already know of the existence of such things and must know that they have to be maintained. We then have to appreciate what is to be done about cleansing and repairing and otherwise maintaining in what are relatively minor operations, matters which throughout our discussions in Committee and on Report the hon. Gentleman spoke of as routine matters. One wonders why we now need a subsection devoted to safeguarding the interests of statutory undertakers when those safeguards are not given to others with interests in the same maintenance operations.

The new subsection uses the words:
"…so as to affect injuriously any works or property belonging to…"
Those are important words. They mean that a local authority has to have the written consent of a statutory undertaker before carrying out this work. If there is any disagreement between the two, we bring in the Lord High Commissioner himself, the Secretary of State for Scotland, the great centraliser, the approver, the disapprover and everything else for what goes on in the life and living of the people of Scotland.

Why is this provision necessary when we already have existing safeguards? Due notice has to be given. If at any time a local authority wants to enter anybody's land, whether that of a statutory undertaker or not, fourteen days' notice has to be given. There is no right as such to walk on to somebody's land and begin operations. If the person concerned is not satisfied, the sheriff adjudicates on whether the request for entry is reasonable.

Another safeguard for the interests of statutory undertakers, as for anybody else, is that if the authority does anything wrong it has to pay compensation. Thus, there are already three safeguards applying to statutory undertakers and to everybody else. I would have thought that that was sufficient without segregating the statutory undertakers and giving them additional protection.

Who are the statutory undertakers? I do not suppose that docks and harbours come into the matter, because they are already covered by the provisions dealing with coast protection. We are dealing with railways and with electricity and gas boards. We are making a mountain out of a molehill by dragging in this subsection, especially since it has had so in adequate an explanation. The last thing to be done is to drag in the Secretary of State. He is busy with other things and there is no reason why he should adjudicate on the issue of withholding permission.

The time factor might arise and the authority concerned might want to get on to the work quickly. If it has to go through all this routine, some of the provisions safeguarding emergency action will be destroyed. Has the Under-Secretary even thought of the effect on emergency cases? Is this right to be given in respect of an emergency case?

It would have been better if the Amendment had been suggested earlier when it could have been discussed in Committee so that we could have made it possibly more workable, as we have done with other provisions. I hope that the Lord Advocate or the Joint Under-Secretary will be able to persuade us that what is being done is justified.

Surely the hon. Gentleman will reply to the cogent arguments of my hon. Friend the Member for Kilmarnock (Mr. Ross), who asked a number of questions deserving some reply. I agreed with a great deal of what he said, although I was not certain that I went all the way with him. There might be cases where maintenance of a canal, for instance, might affect mines, for instance. However, my hon. Friend asked a number of questions concerning the other safeguards which affect statutory undertakers as they affect others. As those safeguards are applicable to everyone concerned, we ought to be given some reason why it was thought necessary to have a special subsection to cover statutory undertakers.

By leave of the House, I did not rise before, because I did not want to deprive the hon. Member for Edinburgh, East (Mr. Willis) of the opportunity, which he clearly desired, of raising his voice.

The hon. Member for Kilmarnock (Mr. Ross) suggested that we were making a mountain out of a molehill, but I suggest that he is. Local authorities are responsible bodies and will act responsibly in these matters. They are not likely to undertake maintenance operations in a way which would adversely affect statutory undertakers without having consulted them. However, one must be careful because there may be specialised technical problems—for example, a culvert under a railway which is the responsibility of the statutory undertaking—where it is clearly desirable that there should be the closest liaison between the local authority and those who have intimate knowledge of the problems concerned. It is only to provide that liaison that the Amendment has been put forward. I hope that that explanation will satisfy the hon. Gentleman that there is no suspicious or ulterior motive behind the Amendment.

If the culvert or bridge were the responsibility of the statutory undertaker, it would not be covered, because we are here dealing with watercourses which are at present not maintained by anyone and which are not anybody's responsibility. It would still be the responsibility of the statutory undertaking to keep it cleansed and so on.

Question put and agreed to.