Middle Level Bill

Debate between Christopher Chope and Kevin Foster

2nd reading: House of Commons
Wednesday 29th March 2017 Commons Chamber

[Kevin Foster (Torbay) (Con)]

I beg to move, That the Bill be now read a Second time.

It might be helpful for the House if I give some background to the Bill and set out the reasons why it is before us. The first point—

[Mr Christopher Chope (Christchurch) (Con)]

Will my hon. Friend give way?

[Kevin Foster]

I will make some progress and then I will happily give way.

For those not familiar with the Bill, the first thing is to ask, “What is the Middle Level?” The Middle Level is the central and largest section of the Great Level of the fens, which was reclaimed by drainage during the mid-17th century. The area is bounded to the north-west and east by the Nene and the Ouse washes, to the north by the previously drained marshland silts, and to the south and west by low clay hills. The Middle Level river system consists of over 120 miles of watercourses, approximately 100 miles of which are statutory navigations, and has a catchment of just over 170,000 acres. Virtually all the fenland within the Middle Level catchment lies below mean sea level.

The Middle Level Commissioners, together with the local internal drainage boards, therefore operate a highly complex flood protection and water level management system to balance the various water uses and requirements, and to alleviate the risk of flooding of land and properties. The efficient operation of this system is vital to the safety and prosperity of the 100,000-plus people who live and work in the area and the 26,000 properties that depend on it. But for the operations of the commissioners and the local boards, much of the fenland would be underwater for a lot of the year, access from higher ground would be cut off, and many of the current land uses would be impossible.

[Kevin Foster]

My understanding from the promoters of the Bill is that it is about the framework for the management of the levels and the waterways, rather than specific developments or projects. If the commissioners decided to pursue such things, they would have to go through the usual process to get permission. Given the historical nature of some of these sites, that could involve an extensive consideration of archaeological impact.

[Mr Chope]

Now that my hon. Friend is taking interventions, may I ask him what his status is? He is telling us about the Bill and the location with which it deals, but his constituency is nowhere near the affected area. Why has it not been possible for the promoters of the Bill to find a local MP who is sympathetic to it?

[Kevin Foster]

My hon. Friend is a doughty scrutiniser of Bills, even if they do not relate to Christchurch. I know that he, like me, takes his duties as a Member of the House very seriously when it comes to promoting and debating legislation. He rightly champions the point that there is no restriction on our debating legislation even if it does not directly affect our constituencies. Private Bills must be sponsored by Back-Bench Members, for obvious reasons, and some of the MPs directly affected by the Bill are Ministers. Given the interest that I have expressed in waterways and their consistent management, I think that it is appropriate for me to sponsor this Bill. Of course, all Members will have the opportunity to participate in the debate, and I hope that we will hear from at least one local Member who is directly affected. I am sure that my hon. Friend will also share his insights into the Bill.

--- Later in debate ---

[Kevin Foster]

My hon. Friend shows his exceptional knowledge of his constituency and the assets that support it. He is right. Fundamentally, as I will come on to say when I talk about the regulatory framework, the waterways in question were built as a drainage system, but they have gone on to be used by pleasure boats and other vessels. One of the reasons why the Bill is necessary is because some of the uses were not envisaged at the time of the 1862 Act. Clearly motorboats did not exist at the time, and the concept of canal usage was very different.

[Mr Chope]

Will my hon. Friend give way?

--- Later in debate ---

[Kevin Foster]

I will respond to those comments when I come on to the petitions. However, I agree with my hon. Friend: clearly nobody wants to pay extra charges for the same facilities, but if we do not change the legal framework, those using the Middle Level for drainage are being asked to pay for facilities for those using it for navigation, making it very unlikely that facilities will ever be developed. These things need to go hand in hand. When I move on to the petitions, I will say a bit more about the commissioners’ views about the facilities that people who are required to pay should expect in exchange.

[Mr Chope]

Is it right to say that the consultation took place at the same time as the EU referendum, the outcome of which we are celebrating today? Is it also right to say that, for example, the March cruising club, whose headquarters is almost opposite the commissioners’ offices, was not consulted, and that other petitioners were not consulted either?

[Kevin Foster]

I know that my hon. Friend would agree with me that people are more than able to deal with two issues at the same time. The EU referendum was very important and many hon. Members engaged with it—I know that he engaged passionately and put his side of the argument—but they can also deal with other things, as was true today, when hon. Members have had various items on the agenda. I would not say immediately that the fact that the consultation coincided with the referendum meant that nobody took part in it. Petitions against the Bill have been deposited, and if the Bill is read a Second time, the petitioners can be heard before an Opposed Private Bill Committee, which will scrutinise the Bill in more depth. I hope that my hon. Friend will support the Bill on Second Reading so that those points can be made, the petitioners can come along and we can consider how to work constructively and appropriately to create a modern framework of regulation, rather than continue with a framework based on the needs of the 17th, 18th and 19th centuries.

--- Later in debate ---

[Mr Christopher Chope (Christchurch) (Con)]

This debate would not be taking place if I had not blocked the Bill from going through on the nod on Second Reading. We have already heard about the benefits of having a proper Second Reading debate on a private Bill. Having spoken to some of the petitioners on the telephone, I point out that the Bill’s promoters have a serious responsibility to engage with those who take a different view or have concerns about its contents. One petitioner told me there has been no contact whatever from the authorities.

It is easy to talk about the Bill going to an Opposed Private Bill Committee. I have no objection to the Bill having a Second Reading, but it is important that it goes to an Opposed Private Bill Committee after there has been an exhaustive discussion between the petitioners and the promoters, rather than the Committee being used as the forum for that discussion, because the private Bill procedure in Committee is expensive and potentially adversarial. I wish that there had been more discussion between the promotors and the objectors.

[Kevin Foster]

When he intervened on my speech, my hon. Friend cited the example of the March cruising club. I have asked for clarification, and I am advised that the club was written to and telephoned but, sadly, there was no reply. A petition would allow further communication, but I have been advised that there was no reply to the consultation. I fully agree that there needs to be such engagement, as well as a formal Committee session.

[Mr Chope]

I am glad that my hon. Friend agrees with the need for informal engagement before the Bill goes to an Opposed Private Bill Committee, because apart from anything else, some of the petitioners are not well funded. If the Committee is prolonged and the petitioners have to be represented by counsel, the costs will be disproportionately high.

The National Audit Office published an illuminating report on internal drainage boards on 21 March—basically we are talking about a collection of drains, not canals. The report expresses concern about conflicts of interest and the need for proper oversight and assurance that the internal drainage boards will not engage where there are conflicts of interest.

I notice that there are 33 independent internal drainage districts within the Middle Level, each of which is responsible for the local drainage of its area. When we talk about giving more powers to the Middle Level Commissioners, we need to be circumspect about the checks and balances on the exercise of those powers, which I hope the Committee will be able to investigate when it meets to consider the proposals and the petitions against them.

One of the petitions is from Nigel Moore, who says that he is

“a boat owner and manager of other people’s boats on various navigations, is an adviser on nationwide legal issues relating to boating, and is currently an approved lay advocate for a boater in a High Court action wherein issues arise over the interpretation of similar clauses to that proposed in this Bill.”

He objects to the Bill because it

“entails clear abolition of private and public rights to no justifiable purpose, and will lead to unnecessary future litigation over ambiguities.”

Like other petitioners, he refers to the Bill’s wide interpretation of the term “waterways”. Schedule 1 will extend the term to a lot of areas that are not even navigable. The Bill will also extend the commissioners’ powers to adjacent waters, including private waters that are not currently within their jurisdiction. Apparently that, so Mr Moore says, has been

“a contentious point in related litigation.”

--- Later in debate ---

[Mr Chope]

Again, that is a good point, and it has been raised in several of the petitions.

Mr Moore expresses another concern, in stating that he

“objects to Clause 8(3) because the wording follows that of the contentious British Waterways Act of 1983, section (8), which has led to years of litigation as to its effect, whereas the wording of the similar clause in the Environment Agency (Inland Waterways) Order 2012 section (16) is far superior, and allows for no such ambiguity and potential attempted and unwarranted extension of powers. The wording ‘without lawful authority’ is also wholly inapplicable to refer to boats on public navigable waters, when the right to be on the waterways derives from the public right, and the proposed provisions for registration of boats does not change that. This was the burden of Environment Agency submissions in a recent case on the Thames, which was, in my submission, correct”.

So he thinks that as worded, clause 8(3) would not only be against the expressed policy of the Environment Agency, but

“would be unenforceable and ineffectual in law, contrary to the expectation of the Commissioners, and prejudicial to the rights of boaters.”

I hope that even if nothing else is sorted out in Committee, those issues raised by Mr Moore will be.

As we have heard, a petition has also come from the March cruising club, which has been submitted by Mr Harwood, the club harbourmaster. Apart from complaining about the inadequate consultation, he raises a number of issues. Following on from the history that has been outlined by a number of the participants in this debate, he says:

“Pleasure boats have had free navigational access to the Old River Nene, which forms a large navigational section of the Middle Level, from before 1215 protected by Magna Carta and many subsequent statutes and Royal Commissions. There are even Roman transcripts describing navigation along the Old River Nene as early as the 4th Century during the Roman occupation. The Old River Nene is a natural river and a Public Right of Navigation has existed since Time Immemorial and was first codified in the Magna Carta of 1215.”

[Kevin Foster]

I am not sure whether my hon. Friend is aware of the preamble to the Nene Navigation Act 1753, which describes the ancient navigation as

“being, at all times, extremely tedious, difficult and dangerous, and very frequently altogether impracticable”.

[Mr Chope]

I do not quite know what point my hon. Friend is making, because he is referring to a preamble to a piece of legislation—of course that is not an Act of Parliament. I am not sure that what he says undermines anything I have been saying in citing the submission of the March cruising club. I am sure that when the promoters engage properly with that club, they will be able to explore that issue further.

One other point made by the cruising club, which contradicts a number of assertions made in this debate, is that the commissioners already have the power to charge boats for the use of their waterways, but what they do not have is the power to charge pleasure boats. If there is a shortfall of £178,000 of unfunded expenditure, as has been alleged, there is nothing to prevent the commissioners from charging vessels that are not pleasure boats, or indeed charging for other activities. That would be consistent with the historical rights of pleasure boat owners to use the navigation without charge. The club goes on to say that the Middle Level is basically a “network of navigable drains”, so it is in a completely different category from some of the comparators that have been cited in support of the Bill by its promoters.

The club makes several other points in its submission, one of which was echoed by my hon. Friend the Member for Peterborough (Mr Jackson). It objects because

“the Bill contains no obligations under which the Commissioners would be duty bound to provide an adequate depth of water for navigation; dredging; maintenance or any facilities to boaters. Essentially, boaters would notice nothing positive, but would be subject to legislation that would: force them to pay a fee to register; pay annual licence fees; be a criminal offence to use the navigation without a licence; be forced to display a registration number; restrict access during certain times of the year; have the risk of being refused a licence and appealing the decision in a Magistrates Court. There are no advantages for boaters in return. This will destroy the Middle Level navigation and the boating community.”

There are several other detailed points in the submission, but I shall not cite them all.

Unless the issues I have described are resolved amicably between the petitioners and the promoters, the Bill will have a pretty slow passage through the House, because I am sure Members will not wish to impinge on the rights that individuals have enjoyed for many years unless there is strong justification.

Another petition comes from Mr John Hodges, who describes himself as a “member of the public” and a

“homeowner with mooring on the banks of the Middle Level”.

He says that the proposals will “directly and specially affect” his rights. That is an indication of another category of objector.

There is also a petition against the Bill from somebody called Derek Paice, whose submission describes him as living

“on a narrowboat (which, since it is not a ‘commercial boat’, most fits the description of ‘pleasure boat’ in the Nene Navigation Act 1684) on the Middle Level and this has been his home since 2011. This was the only available and affordable option after losing his home of eight years when his father died.”

His submission alleges that

“the proposals contained in the Bill will directly and specially affect his rights and interests, including allowing the commissioners new powers to seize his home and sell it on for less than its value, effectively making him homeless, destitute and an additional cost to the state.”

Mr Paice’s submission goes on to say that the Bill

“contains no protection for the homes of people who, like him, live on their boats.”

Indeed, that theme was picked up by Pamela Smith from the National Bargee Travellers Association, who said that people who have lived and worked on boats for many years but who do not have moorings feel threatened by the proposals. She estimated that between 10,000 and 25,000 people—not just in the area of the Middle Level, but throughout the United Kingdom—live on boats but not at a fixed mooring. They are a different sort of itinerant community, and she feels that they will be very much discriminated against by many of the proposals in the Bill. Those concerns are echoed by other petitioners.

Clause 9 proposes giving the commissioners more powers to make byelaws, but those commissioners already have adequate byelaw-making powers under the Middle Level Act 1874. Under the clause, the commissioners are seeking the authority to examine people’s homes, which, in most cases, amounts to an unwarranted, unnecessary invasion of personal space. There are statutory bodies, including the police, with the authority to enter people’s homes under appropriate circumstances. Requiring boaters to surrender their right to privacy as a condition of being granted a licence to navigate is unreasonable and intrusive.

There are quite significant attempts in the Bill to impose on the rights of individuals. I noticed that when the Minister gave her certification in relation to the Bill’s compliance with the European convention on human rights, all she said was that she had no reason to suppose that the assertions made by the promoters were incorrect. I am not sure whether we can be satisfied that the Government have yet explored the issues relating to human rights for their own purposes so that they can assure us that, in their own view—not just the view of the promoters—the Bill is fully compliant with the law on human rights.

My hon. Friend the Member for Peterborough has already referred to the petition from his constituent, Christopher Taylor, so I will not refer to it again. I have referred briefly to what Pamela Smith has said on behalf of the National Bargee Travellers Association. That organisation has put in a major objection to much of the Bill. It has more than 700 members and four local groups and represents the interests of an estimated 15,000 to 30,000 bargee travellers in the United Kingdom. A significant number of members of the association either live permanently on the Middle Levels or use the waterways regularly. It is therefore a matter of great regret that there has been no proper discussion with the bargee travellers on the very important issues in the Bill, and I hope that that will remedied sooner rather than later. The association says that many bargee travellers use the Middle Levels as a transit route between the East Anglian waterways, such as the River Cam, the Great Ouse, or the Wissey, and the rest of the inland waterways. There is no other inland waterway route, and there would be no choice for them but to be bound by the proposed terms and conditions and to pay the proposed charges.

I am not very familiar with this part of the fens, and, apart from having visited other people who have a narrow boat, I am not familiar with this type of recreational boating. However, I am familiar with the sort of recreational boating that happens in my own constituency of Christchurch. All I can say is that if my constituents were faced with some of the regulations and powers to invade their privacy that are proposed in relation to the Middle Level of the fens, they would be outraged indeed. We have a large number of boats moored on the River Stour in Christchurch, and they do not all have names on them. People certainly do not have to give their name and address to some passing enforcement officer.

It seems to me that a lot of the Bill should be removed before it comes back for further consideration on Report. I hope that detailed discussion, consideration and scrutiny in Committee will have that consequence and that we will be able to look back and say, “This has been a worthwhile exercise, because a not very good Bill has been much improved as a result of proper scrutiny.”

I am not going to speak at length on this occasion, but I and my hon. Friend the Member for Peterborough are concerned that the rights of the petitioners should be heard in this great home of democracy.