Middle Level Bill

Kevin Foster Excerpts

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.

[John Howell (Henley) (Con)]

The levels are very important because they often have quite sensitive archaeology. Would the Bill affect that in the slightest?

[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.

[Sir Henry Bellingham (North West Norfolk) (Con)]

I am not directly affected by the Bill, but the drains and waterways in question are adjacent to my constituency. I support the Bill 100%, and I am delighted that my hon. Friend is sponsoring it. I think it is appropriate for him to do so, because a local MP might encounter conflicts of some kind. It makes a great deal of sense for an MP from another part of the country to sponsor this important Bill to give the commissioners more powers, and we are grateful to him for doing so.

[Kevin Foster]

I thank my hon. Friend for his intervention; I could not have put it better myself.

Why do we need a Bill? As many hon. Members know, I regularly make the point on Fridays that legislating is not something to do for the fun of it or a unique form of parliamentary sport. For a Bill to be worthy of parliamentary time, there must be a clear need for it. This private Bill is being promoted by the Middle Level Commissioners, a statutory corporation constituted under the Middle Level Act 1862. The commissioners provide flood defence and water level management to the Middle Level area, and they are the navigation authority for the Middle Level river system. The legal framework that governs the commissioners’ navigation function is made up of several 18th and 19th-century Acts that regulate the use of these waterways, which were mainly laid out in the 17th century.

[Mr Stewart Jackson (Peterborough) (Con)]

May I, through you, Madam Deputy Speaker, offer my sincerest apologies for my lateness? I was detained coming into the Palace.

Does my hon. Friend agree that the area covered by the Middle Level Commissioners is not strictly analogous to that of other navigation authorities, in that the Middle Level area consists essentially of interconnected drainage basins rather than stand-alone, bespoke rivers and canals?

[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 make some more progress and then I will be only too happy to give way again.

The regulation of these waterways, which were mainly laid out in the 17th century, is considerably out of date and does not align with modern requirements or the statutory framework applicable to other navigation authorities, including neighbouring ones. In particular, the current legal framework that governs the commissioners does not include adequate provision for the registration of vessels using the waterways or the levying of charges for the use of the waterways and associated facilities. In my briefings with the promoters, it was remarked that the framework means that the exemptions are for pleasure craft and those transporting manure. As a result, the commissioners currently do not receive any income from the navigation of the waterways, so money raised through drainage rates and levies has to be used to fund navigation, rather than flood defences. In the financial year ending on 31 March 2016, this amounted to £178,929.06 of unfunded expenditure. The commissioners are therefore seeking to update and clarify their powers to enable them to regulate and fund their waterways properly.

The powers sought are similar to those already used by other large inland navigation authorities, such as the Canal & River Trust, the Environment Agency and the Broads Authority. In essence, the future maintenance and management of the waterway will be funded in a similar way to others, not based on one set of users, and those who benefit can be asked to contribute.

Why do we have a private Bill? The commissioners originally proposed to update their governing legislation in the 2000s using a Transport and Works Act order. They approached the Department for Environment, Food and Rural Affairs, which rightly considered that the introduction of the proposed registration and charging schemes would be outside the powers of a TWAO, so the proposals did not proceed any further. Having consulted on updated proposals, the commissioners approached DEFRA again last year, but in October 2016, the Department confirmed that its position had not changed and that a TWAO could not be used. Its reasoning was that a TWAO could not be used to impose charges on navigation governed by primary legislation that does not itself contain charging provisions, as is the case for Middle Level navigation. It was therefore suggested that the commissioners should pursue a private Bill to update their powers.

I am sure that Members will agree that this is the right approach. It is welcome that we can debate these important subjects in our consideration of the Bill. Although this is the first opportunity for a wider debate in the House on this matter, the proposals will not come as a surprise to those who might be affected, as there has already been a wider consultation.

[Mr Jackson]

My hon. Friend is making a very good speech. May I put it to him that, at first sight, the Bill is an attempt to regularise the Middle Level vis-à-vis legislation for other navigation authorities, but what is missing from it—this might be different with secondary legislation—is any commensurate commitment to upgrade facilities that are similar to those of other navigation authorities? That is the Achilles heel of the Bill, and it is where it might need to be looked at again by this House or the other place.

--- 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.

[Sir Henry Bellingham]

My hon. Friend is being generous in giving way. He made the key point earlier to my hon. Friend the Member for Christchurch (Mr Chope), which is that the powers need to be brought up to date, made more fit for purpose and more modern, and brought into line with similar powers over other waterways, as exercised by the Environment Agency, the Canal & River Trust and the Broads Authority, which is near my constituency. An update is long overdue.

[Kevin Foster]

I thank my hon. Friend for putting succinctly the exact points that need to be made. The current system of regulation dates from another era and it needs to be brought into line with the successful system elsewhere. The House is not being petitioned to revert other areas to the old system, but there is a demand for change.

It might be helpful if I go through the consultation that took place between February and June 2016. The commissioners notified affected parties, including those with navigation interests, land drainage interests and local authorities, and published newspaper notices and placed details on their website. Of the 23 responses received, 18 were supportive, three neutral and two opposed.

It might be helpful if I list the supporters. They include the Inland Waterways Association, the East Anglian Waterways Association, the Association Of Nene River Clubs, the National Association of Boat Owners, the Middle Level Watermen’s Club, the Residential Boat Owners’ Association, the Association of Waterway Cruising Clubs and five local councils. My hon. Friend the Member for North West Norfolk (Sir Henry Bellingham), who represents a nearby constituency, has also indicated his support.

It is also right that I mention the concerns. Six petitions against the Bill have been deposited by individuals with varying interests in the navigation of the waterways, including the March cruising club, which my hon. Friend the Member for Christchurch (Mr Chope) has mentioned, and the National Bargee Travellers Association. The commissioners have been considering the points raised in the petitions. As I touched on in response to my hon. Friend’s intervention, if the Bill is given its Second Reading the commissioners will respond to those points prior to the Opposed Private Bill Committee. Both the commissioners and the petitioners will then have the opportunity to give evidence directly supporting their case to the Committee, which will determine the line-by-line detail of the Bill and whether its principle has been proved.

The Bill is long and complex and, for the benefit of Members, I do not intend to go through every aspect of it or of the petitions. There are, however, two issues that I think I should cover to assist the House. The first relates to houseboat owners. For some, the Middle Level is their home, not just a pleasure watercourse. I acknowledge, therefore, that one of the petitioners is the National Bargee Travellers Association. I have raised that issue in relation to the Bill’s powers and have been advised that the commissioners are a public authority bound by the Human Rights Act to comply with the European convention on human rights. If removing a vessel would interfere with its owner’s article 8 rights—namely the right to respect for private and family life, home and correspondence—that could be done only if it is proportionate to do so. The courts have indicated that it is more likely to be proportionate if a vessel plainly fails to meet safety standards or its owner consistently refuses to show that they have insurance, but it is not likely to be proportionate if there is a genuine dispute about breach of licence conditions.

The commissioners can spell that out in more detail in registration byelaws, if the Bill is passed. Of course, those byelaws will also be subject to ministerial confirmation. We could also explore the issue in more detail in the Bill Committee. Ultimately, those who make the place under discussion their home could also benefit from gaining better facilities and a more secure future via a modernised system of regulation and a modernised legal framework for the Middle Level.

My hon. Friend the Member for Peterborough (Mr Jackson) highlighted the second point, which is the idea of people paying more but not getting any facilities in return—in other words, a tax on using this stretch of water. I accept—I hope that the Bill’s promoters do as well—that this has to be a two-way street. Those who navigate cannot be charged more if they are going to receive a pretty similar service. There has to be a clear benefit. I have raised the issue with the Bill’s promoters and they have advised me that the commissioners recognise that navigators being asked to pay charges will have to get something in return for their money—there is no two ways about that. They have agreed with the Inland Waterways Association, the East Anglian Waterways Association and the National Association of Boat Owners that they will set up a users’ panel, if the Bill is passed and the framework modernised. The panel will be able to discuss an annual programme of maintenance improvements before each year’s charges are set. The precise arrangements for the panel have not yet been agreed, but the commissioners could certainly set out more detail before the Bill Committee if that would be helpful.

I hope that that provides some reassurance to the House, but again this is a matter we could explore in some depth in Committee. I would just make the point that, as with the older regulatory Acts, we may wish to consider carefully how much we want to put on the face of a Bill and how much could sensibly be left to allow some flexibility for the day-to-day management of the levels.

There is a lot of detail I could go into, particularly in relation to the patchwork of rather elderly Acts that regulate this waterway. To allow time for debate, I will not go through them all. I am, however, happy to respond to points raised during the debate and I look forward to the Minister’s comments. I hope that the Bill receives its Second Reading, so that its promoters and petitioners can make their case in Committee, and the Middle Level can have the modern, up-to-date system of regulation it deserves.

--- 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.

[Kevin Foster]

It has been a pleasure to sit through this debate. I will not detain the House any longer by going through the individual comments we have heard, but I thank my hon. Friends the Members for Peterborough (Mr Jackson), for Aldridge-Brownhills (Wendy Morton) and for Christchurch (Mr Chope) for the detailed scrutiny and consideration they have given the Bill. There are certainly elements that we can take from the debate and deal with in Committee. In particular, we can deal with the byelaw powers and the question of engagement.

Question put and agreed to.

Bill accordingly read a Second time and committed.

Middle Level Bill

Kevin Foster Excerpts

Report stage: House of Commons
Wednesday 28th February 2018 Commons Chamber

[Sir Christopher Chope]

The background to new clause 1 is the principle of quid pro quo, because the petitioners are concerned that new charges and obligations are being brought in without their getting anything in return. Before I expand on that, I should say that all the new clauses and amendments are grouped as one, so we are effectively discussing the Bill as a whole. I think that every part of the Bill is included in one or other of the amendments.

[Kevin Foster (Torbay) (Con)]

indicated assent.

[Sir Christopher Chope]

I am grateful to my hon. Friend for confirming that that is the situation. It would therefore be apposite for me to make a few introductory remarks by saying that I, the petitioners and others much appreciate how the Bill’s promoters have responded positively to many of the points that have been made. A series of good points are set out in the promoters’ statement. My hon. Friend the Member for Solihull (Julian Knight), who was an assiduous member of the Committee, is present, and everybody agrees that it is a credit to the House that the Bill has been considered in such detail.

Several points were made on Second Reading, the commissioners responded to them, and some of those responses were reflected in amendments in Committee. When the petitioners had the chance to be heard—I think over three days—many of their points were also accepted. The stage that we are at now is the consideration of the amendments that were proposed as a result of those representations. There are questions over whether the amendments go far enough, whether they could be tweaked in some way and about what signals could be sent to the other place, which has yet to consider the Bill. When the Bill goes to the other place, I am sure that there will be petitions against it.

We will be able to see the extent to which the petitioners’ arguments are accepted today, because it is obviously open to the Bill’s promoters to say at any stage, “Well, I think that’s a good point. We hadn’t thought of that.” My hon. Friend the Member for Torbay (Kevin Foster), who is sponsoring the Bill on the promoters’ behalf, is a good listener, and I sure that things will go well in the future. If the Bill had never been objected to, it would have gone through as it was originally, but it is now much better. However, “much better” does not mean that it is not capable of being improved further. That is the whole purpose of putting forward these new clauses and other amendments this afternoon.

Paragraph 2.3 of the statement on behalf of the promoter, the Middle Level Commissioners, in support of the Bill makes it clear that

“the Commissioners currently do not receive any income from navigation of the waterways.”

With the passage of the Bill, they will receive such income. New clause 1 is designed to ensure that the quid pro quo is that if the waterway is not navigable, those charges should not apply. The petitioners believe that under case law in the case of Brett v. Beale and others, the commissioners must provide something beyond what is already provided in return for making additional charges. I am sure that my hon. Friend the Member for Torbay will accept that that is a reasonable proposition.

The March Cruising Club is of the opinion that if boaters can be charged to use the system for navigation, it is essential that boater facilities are maintained and that an adequate depth of water is introduced as a minimum standard. Where that does not apply, any requirement to pay charges should be waived.

--- Later in debate ---

[Sir Christopher Chope]

We have not yet reached that stage. That might be my fault, because I have not sat down with the Bill’s promoters to discuss these issues in detail. I understand that there was quite a lot of discussion of such issues in Committee. For the reasons that I have set out, the petitioners are still unhappy and feel that there should be a new clause to incorporate this provision.

[Kevin Foster]

I am finding my hon. Friend’s speech of some interest. He might be interested to know that clause 4 was amended in Committee to make it clear that revenue from navigation would be spent only for navigation purposes. That was done specifically in response to the petitioners’ concerns, to ensure that they could be confident that, although they are currently getting something for nothing, they will get something for what they pay—the navigation fees will go on navigation facilities and costs.

[Sir Christopher Chope]

I am grateful to my hon. Friend for his intervention. We will come to clause 4 and the amendments to it later. I shall say nothing other than that the petitioners and I were pleased that clause 4 was introduced in Committee in response to the concerns that were expressed. As I mentioned at the outset, just because it was introduced at that stage, that does not mean that it is perfect, which is why we are dealing with these new clauses and the amendments to clause 4, to which I shall come in due course and in order, because it is much easier for people to follow proceedings if people start at the beginning and go through clause by clause.

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who have “other navigation interests” and so on? Why use such a circumlocutory expression when plain English would suffice?

[Kevin Foster]

I thank my hon. Friend for the points that he is making. However, does he agree that the slight danger with this amendment is that it would say that the persons are representative of all the interests, when the whole point of a representative committee would be to have people who represent different interests, just as we in this House all represent different constituencies even though we have the same duty as Members?

[Sir Christopher Chope]

My hon. Friend makes a brilliant point, but it is nothing to do with this. It is not a question of what the persons are representative of, because that is spelled out, but a question of whether they are representative of the groups listed or appear to the commissioners to be representative of them. It should be quite easy to establish whether somebody is representative of these interests rather than appearing to the commissioners to be representative of them.

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[Holly Lynch]

I understand the hon. Gentleman’s point, which is a valid one, and of course we want to improve accessibility so that everyone can enjoy our waterways. It is certainly something we would consider further in later discussions on the Bill, but it is not something we would vote for later today.

Taking everything into account, we are satisfied that the Bill is sensible in updating the legal framework setting out the role of the Middle Level Commissioners and bringing them into line with what is now standard practice across comparable waterways. Despite its unusual journey through Westminster, we have no problem supporting it this afternoon.

[Kevin Foster]

It is a pleasure to get another opportunity to speak on the Bill. Given that it has already had its Second Reading, I will focus my remarks on today’s amendments and the changes made in Committee.

As the hon. Member for Halifax (Holly Lynch) just mentioned, a number of positive changes were made to the Bill in response to the petitioners’ concerns, and I was grateful to hear my hon. Friend the Member for Christchurch (Sir Christopher Chope) say that changes had been made and that people had listened. It is appropriate, however, that I say briefly why I do not think it would be appropriate for the amendments and new clauses to be accepted.

New clause 1 would set a minimum navigation depth actually lower than the one in current legislation. New clauses 2 to 5 refer to specific facilities that could be provided. As suggested in an intervention, it does not seem logical to specify in statute things such as coin-operated water showers. Were that to sit in primary legislation, it would run the danger of the Bill becoming completely outdated. It also makes sense for users, via the mechanisms proposed in the Bill, to be able to discuss what are appropriate facilities. The inclusion of some of these items might also render particular powers ineffective where planning permission is refused. I therefore urge the House to reject all the new clauses.

[Philip Davies]

I take my hon. Friend’s point about the specific items, but new clause 5 does not mention anything specific; it just maintains that something should be in “good repair and working order”. If that new clause is not accepted, what would the appropriate remedy be for boaters to ensure they did not pay for something they cannot use?

[Kevin Foster]

Clause 4, as amended, means that incomes can only be used for navigation purposes. Ultimately, this becomes a chicken-and-egg situation: money will have to be raised if the commissioners are to provide the type of facilities people want on the Middle Level in consultation with navigation users. The alternative is to ask those who are paying for drainage to pay for those facilities to be provided initially via their council tax bills, which seems neither fair nor equitable. This cannot be a money-raising exercise. The purpose of any moneys raised by navigation must be absolutely clear. People are already paying for drainage via council tax and a levy.

[Fiona Onasanya (Peterborough) (Lab)]

Would the historical public right of navigation and extending the powers to privately owned waters and marinas give the Middle Level Commissioners complete control and enable them to charge boats licence fees?

[Kevin Foster]

An amendment was made in Committee making it clear that the powers would not be extended to someone who owns the waterways and the frontage of a property. The promoters have confirmed that the owners of the marinas wish to be included in the powers of the commission. There is no specific definition. We are not talking about a lock or a quay; we are talking about an open waterway. The aim is to manage it as a whole system, with registration applying throughout, and without different safety standards or insurance requirements. That should benefit the hon. Lady’s constituents.

Amendment 1 would extend the time between the passing of the Act and the date on which it would come into effect. A 12-month transition period applies to many of the provisions relating to construction and use, but it does not make sense to delay all the provisions—such as the commissioners’ new duty to have regard to the interests of boat dwellers—to that extent.

Let me now deal with amendment 2. My hon. Friend the Member for Christchurch asked where the words “any other offensive” had come from. The wording is actually similar to the requirements under the Environment Agency’s powers to control discharges into water for works purposes under section 163 of the Water Resources Act 1991. It is a well-established definition, and I hope that that will reassure my hon. Friend.

My hon. Friend said that amendment 3 was a probing amendment. Adding a reference to electric vehicles to a provision that also includes vehicles under sail does not take into account the direction in which technology could well move. Electric motors are becoming much more powerful, certainly far more powerful than a sail vessel. However, as I have said, my hon. Friend did say that this was a probing amendment.

The promoters would find amendment 4 unacceptable, because it would potentially remove the need for a static vessel to meet construction and safety standards or insurance requirements. I think that, given the issues that we have been debating over the past year, few of us would consider it sensible for those requirements not to apply to houseboats.

Amendment 5 would extend the commissioners’ powers in quite an odd way, and could require them to dig out virtually every watercourse in the area that is not a navigable course. It suggests the idea of a sort of waterway statutory off-road notice. This has already been taken care of by a change that was made in relation to boats that people own that are on their own property and used only by them. Parking a boat in a marina, for example, would be the equivalent of parking it in a public car park.

I made a point about amendment 6 in an earlier intervention. As was pointed out by my hon. Friend the Member for Shipley (Philip Davies), replacing the words

“appear to the Commissioners to be (taken together)”

with the word ”are” could allow a challenge over who had been appointed if someone felt that an appointee did not represent them. I do not feel that that would be an appropriate or helpful addition to the Bill. Such a challenge to the advisory committee could potentially frustrate its establishment.

I oppose amendments 9, 16 and 22 because the point of introducing a practical power is to provide for a simple registration plate that can be enforced. Getting into an argument about whether a boat has been used or not seems neither sensible nor appropriate, particularly if we are talking about looking to have basic construction and safety standards and insurance standards. In exactly the same way as if we park a car on a public road, it does not matter whether we are driving it or not as it still needs to be roadworthy and have paid vehicle tax. There are therefore similar precedents in other areas of legislation, so again I suggest that these amendments are both unwelcome and unnecessary.

As for amendments 10 and 11, the Bill makes it clear how the income from navigation will be used to fund benefits for navigation so, again, neither of them is necessary. On amendments 12 and 13, it does not seem unreasonable to allow commissioners to set conditions on the use of facilities such as, for example, cleaning showers and not abusing waste facilities. Indeed, it could undermine the purposes of providing those facilities if they were not able to provide a basic regulation system for how they were used, which is common in many other environments.

On amendment 14, I appreciate the passion of my hon. Friend the Member for Christchurch for ensuring that disabled people have a strong voice in this Chamber, along with my hon. Friend the Member for Shipley, who is a passionate advocate of equalities, hence his membership of the Women and Equalities Committee. However, this amendment is flawed as it refers to a register of disabled persons when that register was abolished by the Disability Discrimination Act 1995, so again I suggest it would not be sensible to bring that in.

[Philip Davies]

I appreciate my hon. Friend’s ability to find a technical reason why he should not accept the amendment, but does he accept the principle behind it?

[Kevin Foster]

We are on Report, whose purpose is to look at the technical detail of the Bill and satisfy ourselves it would be appropriate. In terms of whether I support the principle, my council does not offer a parking fee concession for those who hold a blue badge, only the ability to use reserved spaces that are very close. Again, that principle is established in many areas, so I do not think the principle of this is one to take forward. This is not about someone needing an extra facility because they are disabled; this is about a boat and navigation and whether people pay the same charge as everyone else and are effectively treated exactly the same.

On amendments 15 and 16, it does not make any sense to remove the ability to promote reciprocal arrangements, and it could end up costing boat owners more if they have to have separate licences and registration and different standards, so I urge the House to reject these amendments. On amendments 17, 18, 19 and 20, a protocol will be put in place, so I do not accept the suggestion that the existing powers would be oppressive. A houseboat would only be removed in the last resort and where it was proportionate to do so.

On amendment 23, it makes little sense to apply this cap only to the application fee; it does not apply it to the registration fee. This could produce perverse effects in the long run, and I again suggest it should be rejected.

My view and that of the promoters is that amendment 26 this would cause confusion: if things are done in “conjunction” with, rather than through “consultation”, and someone wishes to take legal action, whom do they take it against? They could end up taking it against members of the navigation advisory committee which actually just got involved to represent people, so this could act as a deterrent for anyone wanting to be involved.

There are many good reasons for this Bill to be passed. It has been examined in great depth in the Opposed Bill Committee and on the Floor of the House. I thank my hon. Friend the Member for Christchurch for his great interest and the scrutiny he has given this Bill, but I urge the House to reject all the new clauses and amendments, if necessary.

[Dr David Drew (Stroud) (Lab/Co-op)]

I am pleased to be able to make this short speech in support of the Bill, unamended as it is. I congratulate the hon. Member for Torbay (Kevin Foster) and those who sat on the Committee. They seem to have done a great deal of clever and thoughtful work. I know very little about the Middle Level Bill, but I do know a lot about the Gloucester and Sharpness canal, where we had similar issues relating to the need to update and to who should be able to moor and therefore be charged for facilities. That was resolved, although not without difficulty, because there was some opposition. Eventually, however, people saw sense on issues such as shutting the canal on certain days when there is limited need to use it, to allow people easier passage over its many bridges. It is right and proper that such arrangements should be revisited from time to time, to ensure that our canal system and the waterway system in general are fit for purpose. I should like to add my congratulations on the work that has been done, and I hope that the Bill will pass without amendment.

--- Later in debate ---

[Kevin Foster]

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

I thank all hon. Members who have come to support the Bill, which is a needed piece of legislation that will reform an outdated system of regulation of this waterway. I hope that all Members will support it receiving its Third Reading.

Bill accordingly read the Third time and passed.

Middle Level Bill

Kevin Foster Excerpts

Consideration of Lords Amendments to the Bill: House of Commons
Tuesday 16th October 2018 Commons Chamber

[Kevin Foster (Torbay) (Con)]

I beg to move, That this House agrees with Lords amendment 1.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to consider Lords amendments 2 to 20.

[Kevin Foster]

This debate marks the end of a detailed process of parliamentary scrutiny of the Bill, which has both been welcome and led to significant changes and improvements to it. That process has been followed tenaciously by my hon. Friend the Member for Christchurch (Sir Christopher Chope), who is in his place today and who I am sure will again give us the benefit of his thoughts on their lordships’ amendments. It must be said that the Bill is better for the scrutiny it has had in both Houses, with its Opposed Bill Committee in the other place having been chaired by Lord Thomas of Cwmgiedd, a former Lord Chief Justice.

Today’s debate focuses on the 20 amendments made by their lordships, resulting from the concerns raised in the Opposed Bill Committee, further to refine the Bill to ensure that its purpose is clear, that the powers it grants are proportionate and that the needs of all users of the Middle Level, including those who rely on it for drainage and for whom it is their home—that has been a particular issue of debate throughout the process—are properly considered. I have spoken at length with the promoters, and they support the Lords amendments and urge Members to accept them.

To give a brief history of the Bill for those who have perhaps not followed it quite as closely as I have had the pleasure of doing, it was originally introduced to the House in November 2016 and had its First Reading on 24 January 2017. It was debated on Second Reading on 29 March 2017, when my hon. Friend the Member for Christchurch and I had the opportunity to debate it at some length. A motion to revive the Bill in the new Session of Parliament followed the general election and was agreed by this House on 17 October 2017, and the House of Lords agreed to the revival of the Bill on 25 October 2017. The Bill went before an Opposed Bill Committee of the House of Commons on 15 to 17 January 2018, and consideration of the Bill as amended in Committee took place in this Chamber on 28 February. On Third Reading, the Bill passed without a Division.

My gratitude goes to my hon. Friend the Member for Solihull (Julian Knight)—sadly, he is not able to join us for this debate—who chaired the Opposed Bill Committee of this House and made some valuable contributions. In fact, my hon. Friend the Member for Christchurch highlighted on Third Reading how valuable it had been to hear on Report the contribution of the Chairman of the Opposed Bill Committee, as it meant that we could further explore some of the issues that had been presented there.

The passage of the Bill in the other place has been slightly quicker, as there was no intervening general election to cause an issue with its consideration. Its formal First Reading in the other place took place on 1 March this year and its formal Second Reading on Thursday 22 March. It was then considered for five days in June by an Opposed Bill Committee, chaired by the eminent jurist Lord Thomas of Cwmgiedd. He and the Committee brought a good level of scrutiny to it, ensuring that we have a very good Bill. I think that we can have every confidence in agreeing with their lordships today and then seeing this legislation enacted.

My understanding is that the Committee in the other place heard evidence from four of the seven petitioners against the Bill. Two of the petitioners had withdrawn their petitions and one was held not to have a right to be heard by the Committee, although I understand from speaking to the agents of the promoters that that person was still able to speak by providing evidence on behalf of one of the petitioners. To be clear, everyone has had a strong chance to put their views. Three of the petitioners had also appeared before the Opposed Bill Committee of this House.

The Middle Level Commissioners proposed amendments to the Bill in response to the concerns raised by the petitioners and members of the Committee. They also gave the Committee a number of undertakings that are not part of the Bill. However, I will turn to them in a few moments, because Members may find it helpful to know the reasons behind some of the undertakings given, as well as the reasons why they were given as formal undertakings to the Committee rather than incorporated as amendments to the Bill.

The amended Bill received formal Third Reading in the other place on 12 September this year, and we are now here to consider the Lords amendments. The promoter considers that the amendments do not extend or materially change the substance of the proposals in the Bill as earlier passed by this House, but they do provide some advantages.

Lords amendment 1 addresses a concern regarding small unpowered pleasure vessels. People may wonder what on earth that might mean. The amendment provides that vessels such as canoes and kayaks should not be included in the charging regime introduced by the Bill. However, when I speak about one of the other Lords amendments, I will explain that there may be a reasonable way—comparable with a similar system used on other waterways—to seek a contribution from those using the waterway for such purposes towards the costs of maintaining the waterway for navigation. This amendment is part of ensuring that the Bill is proportionate, and—to be blunt—to ensure that someone using a canoe or kayak does not find themselves being charged as if they were putting a pleasure boat down the waterway. It speaks to the socially inclusive nature of the use of the Middle Level; it is not just about those with large motor boats or significant amounts of money.

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)]

I am very conscious of what my hon. Friend says, and we want to encourage people to be active in their recreation. Have the commissioners considered a case whereby such vessels may be part of a commercial operation, with kayaks being rented out or training taking place? Have they recognised that the Lords would not want such cases to be covered by this provision?

[Kevin Foster]

I thank the Minister for her intervention. Yes, that is partly why Lords amendment 7 allows an ability to provide some charge for a more commercial operation. It could perhaps be a block charge to British Canoeing for those who are using the waterway, so that people pay a membership fee to British Canoeing before they are able to use particular waterways rather than paying individual fees to each individual operation. I see some nodding from those in the Under-Gallery. It is about trying to avoid a situation where a person with a canoe finds themselves having to register as a boat user to get on the water and pay a fee as if they were a large operation. They will not be completely barred, but they will be in a different charging regime from the standard one for the major pleasure boats and crafts using the waterway.

As the Minister will be aware, the current system of regulation means that fairly large pleasure and commercial boats can use the Middle Level with absolutely no charge at all. That is severely hindering its development and opportunities. Most worryingly of all, the current legislation does not provide for a modern system of safety regulation. This Bill does, hence why the commissioners are very keen to get it in place so that they can ensure that there is a modern and recognisable standard of boat safety on the Middle Level.

[Bob Stewart (Beckenham) (Con)]

Could I be quite clear about this, because I am slightly worried? There is no question, is there, of a family taking a canoe out having to pay when they go on these waterways? That would seem excessive.

[Kevin Foster]

I thank my hon. and gallant Friend for his intervention. The Lords amendment that I have just briefly covered is designed to deal with some of those concerns. It would be quite common on other waterways to have a system whereby if someone was a member of the British Canoeing Society, that membership fee would cover the cost. The commissioners may also put in place some restrictions regarding, for example, children wearing life vests. I think most of us would feel that that would be a sensible form of regulation on the waterway.

The general intention of the Lords amendment is to recognise that the Middle Level is a key part of the local community. Many use it informally. Although we need to bring in a form of safety regulation, it is not intended to bring that into the main scheme, although, as on other waterways, there might be a requirement to be a member of a recognised organisation that then contributes to the upkeep of safety equipment and other areas. There would then not necessarily be an additional charge to go on the Middle Level.

Lords Amendments 2, 3 and 4 deal with some of the issues that were raised on the membership of the navigation advisory committee and how it would work. Lords Amendment 2 would be familiar to anyone who has served on a local authority, with the idea that one should declare any personal interest or any matters that would be relevant to one’s decisions. Some of the petitioners raised a concern that the navigation advisory committee must fairly represent the users. In essence—the promoters may not thank me for saying this—it should not be the case that, for example, the commissioners’ mates or one particular group end up finding themselves on the navigation advisory committee.

However, the promoters were happy to accept the idea that relevant interests should be declared and that there should be clear processes for how that works. I do not think that any of us would see it as unreasonable that someone appointed to a representative body should declare to those they are representing what potential interests they may have that are relevant to their position on, in this case, the navigation advisory committee. They would not have to give a life story of their entire business affairs, but they would certainly have to declare anything that was relevant to their being on that committee—for example, what their interest is in the Middle Level, what they are doing there and how their business might operate. Those using the waterway for navigation could then satisfy themselves that there was a broad range of people represented there.

--- Later in debate ---

[Eddie Hughes (Walsall North) (Con)]

I am perplexed by the term “a relevant interest”. Will my hon. Friend elaborate on that, so that I can understand what a relevant interest might be?

[Kevin Foster]

I thank my hon. Friend for his interest. The amendment responds directly to concerns raised by petitioners in the Lords Committee about how the commissioners would not be sufficiently accountable to navigation interests. It gives boat owners on the Middle Level the same right to scrutinise the commissioners’ navigation accounts, and to challenge them if necessary, that local government electors have in relation to local authorities. In effect, boat owners using the Middle Level can act in the same way as a local government elector. I hope that answers my hon. Friend’s question.

Lords amendments 18 to 20 are more technical in nature, and I do not intend to talk about them unless Members have a particular query. A number of undertakings have been provided, and I can certainly make them available to Members who wish to see them in more depth. I would flag up the third undertaking given in relation to the advertisement of byelaws. In effect, an undertaking has been given to advertise byelaws in the same way as traffic orders—for example, in the local newspaper or, in this instance, in a magazine of interest to boaters. That is not in the Bill because, as many of us would accept, 40 or 50 years ago the local newspaper was the obvious place to go to for relevant news and information. If we begin to codify that in legislation, it could become out of date.

A specific undertaking is given on the registration fee for static houseboats and the publication of the removal protocol. That is a particular issue, and it will be treated as if it were a byelaw. The final issue of note is the undertaking to return to a residential mooring strategy and looking at how we could use the Middle Level to provide more opportunities for residential use, but that is an undertaking to try, rather than a statutory “must”, because ultimately the mooring facilities are determined by the local council.

The Bill has returned to the House in an excellent condition from the other place. We should accept the Lords amendments, as they strengthen the Bill and make it a measure that the whole House can accept.

[Several hon. Members rose—]