Page published 20 December 1999
Reforming the MLC
This page contains the text of a paper, written in 1986 but still current, which explains much of the legal situation in which the Commissioners find themselves.
Joint Opinion on mode of Electoral Reform of Middle Level Commissioners
The Middle Level Commissioners is a statutory corporation (Section 54 Middle Level Act 1862) whose present constitution is as a result of a series of Acts of Parliament dating from the mid-17th Century to the latter part of the 19th Century.
Except for the levying of rates, management of the statutory corporation is carried on by the Middle Level Board, usually together referred to as the Middle Level Commissioners, elected from and by those holding the qualification as a Middle Level Commissioner. (Section 15 et seq. Middle Level Act 1862)
For the sake of clarity, in this opinion:-
"The Middle Level" - is used to denote the statutory corporation.
"The Board" - is used to denote those persons elected to manage the statutory corporation's affairs from amongst the Commissioners.
"The Commissioners" - is used to denote those persons presently qualified as electors of the Board of the Middle Level.
There are two distinct functions bestowed on the Middle Level by the Various Acts of Parliament. First, there are land drainage powers and duties originally inherited from the Bedford Level Corporation and the Middle Level Drainage Commissioners and, second, navigation functions derived originally from the Nene Navigation Act 1753. Those land drainage functions and navigation functions continue to be exercised by the Middle Level and there exists no distinction under the present constitution between the persons entitled to be elected or to elect members of the Board to exercise either or both land drainage or navigation functions.
In practice, the navigation functions of the Middle Level are not income producing and the present powers to levy tolls on certain goods are of no practical value, since they relate to a time when the primary use of the navigation was a commercial waterway.
Thus, the navigation function is entirely dependent upon the land drainage income of the Middle Level.
Whilst power exists for the Middle Level to apply for power to levy charges on pleasure boats by Order under the Transport Act, such a course would be likely to meet strenuous opposition from users of the waterway.
The Ministry has also indicated that it would not readily countenance a separation of the navigation from the land drainage functions so as to create a further independent Authority.
There are also anomalies within the present Acts creating the Middle Level between the respective functions, thus it is for the Middle Level as a Drainage Authority to maintain the navigation levels. (See for example Section 52 Middle Level Act 1848).
The present qualification as a Commissioner is ownership of 100 acres and a Commissioner, if elected, to the Board, may with the concurrence of his fellow board members exercise both land drainage and navigation functions.
The Board have indicated only negative support for any change in the electoral qualification in that they would not object to a proposal by Anglian Water to amend the electoral provisions and qualifications to coincide with the model contained in Schedule 2 to the Land Drainage Act 1976.
That model, if adopted, would extend the category of person eligible for election to owners of as little as ten acres and to occupiers of land of not less than 20 acres in area and would extend the franchise to owners and occupiers of all rated land.
Whilst in theory this means that there would be a bigger pool of potential Board members, in practice there is unlikely to be a rush of new blood to the Board. Nonetheless, it remains that the Land Drainage Act does provide its own scheme for elections and electoral qualifications and it was clearly the intent of Parliament that all newly created internal Drainage Boards, and, when opportunity arose, reconstituted Drainage Boards should be created with or have incorporated into their legislation the second Schedule provisions.
However, the mechanism that was provided for such incorporation (Section 11 Land Drainage Act 1976) clearly did not have in its contemplation that Drainage Boards existed which had powers and functions in addition to land drainage powers and functions and therefore speak exclusively of the constitution of "Internal Drainage Boards".
Thus, as the Middle Level is not only an Internal Drainage Board but also a Navigation Authority, the power to reconstitute under Section 11 does not extend to the whole of the functions of the Middle Level but only those which it holds as a Drainage Board.
Whilst no approach has been made to the Ministry to canvass their present view, previous indications from them have been that they would prefer to see promoted a scheme whereby all the functions of the Middle Level we're dealt with simultaneously. Equally, were a scheme to be promoted under Section 11 (and that scheme to be approved) then the potential for the present functions of the Middle Level becoming separated are greatly increased in that there would no longer be a single Board but a Board of Land Drainage members elected in accordance with the Land Drainage Act and a Navigation Board elected in accordance with the existing legislation.
Further, the navigation function would, on the face of it, have no income and the "Navigation Board" would of necessity have to seek an order under the Transport Act to levy tolls on the pleasure boats using the waters.
An alternative does exist to the promotion of a scheme under Section 11 of the Land Drainage Act and that is to promote a private Act of Parliament, amending the electoral qualifications and provisions of the present Middle Level Acts.
The cost of such promotion is difficult to pre-estimate but would not in our view be less than £20,000 and with a time scale of at least three years to become law. There, would, however, be no doubt that by such action, parliament could deal with both land drainage and navigation functions, and indeed such other matters as the Middle Level might require.
It is therefore our conclusion that the usual method of reconstruction of a Drainage Board by way of Section 11 of the Land Drainage Act is not available in the case of the Middle Level and that even if it were, it is doubtful that it would be in the interests of either Anglian Water or Middle Level to proceed along that course and, effectively, split the existing Authority.
The constitutional changes to the Middle Level can be achieved but at a not inconsiderable cost and for benefits which might, in the long run, prove to be more theoretical than practical. We would, therefore, recommend that the present Middle Level reorganisation be limited to boundary alterations only and that any decision on the promotion of a private Act of Parliament be deferred until the Government's present proposals with regard to the future of land drainage have been clarified.
Dated: 1986
R A R Breadmore
Solicitor
Cambridge Division
Ian Smith, Solicitor
Clerk to the Middle Level Commissioners