HC Deb 31 January 1949 vol 460 cc1398-406
Mr. P. Thorneycroft

I beg to move, in page 5, line 2, to leave out from "conferred," to "by."

Clause 4 deals with the restrictions on the laying of mains, etc., under the special roads and, as at present drafted, it gives certain rights to statutory undertakers. In Committee my hon. Friend the Member for Ripon (Mr. York) moved an Amendment in similar terms to this and pointed out that there are certain people other than statutory undertakers who may have apparatus of one kind and another under the road, and if the Clause is restricted as at present those people, private persons or whoever they may be, will not have the benefits of the Clause.

By the proviso in Subsection (1) a statutory undertaker can repair existing apparatus. There is something to be said for not having everyone digging up the roads, but there must be a safeguard enabling repairs to be done to existing apparatus. The Clause also provides that a charge shall not be made against the undertakers and gives the special road authority power to make a contribution, and in Subsection (4) there is provision in regard to arbitration. These conditions are restricted to the statutory undertaker and I should like the Minister to say why no one else with apparatus over which a special road is constructed should have the same rights as the statutory undertaker.

Colonel Dower

I beg to second the Amendment.

The Parliamentary Secretary to the Ministry of Transport (Mr. James Callaghan)

We had a short discussion on this on the Committee stage. At first sight, there seems to be something in the point, but, if the hon. Member for Monmouth (Mr. P. Thorneycroft) will consider it again, he will probably agree that the expression "statutory undertaker" gives certain rights enabling him to break up highways for the purpose of apparatus, but I am not quite sure who else possesses those rights other than a statutory undertaker. There are, of course, many people, especially in country areas, who have drains of some sort under a road which may well be affected by these provisions. They are not statutory undertakers and in so far as their rights would be affected by a special motor roads scheme, the injury done to them would be dealt with in exactly the same way as regards severance and compensation as injury done in the matter of altering their fences, ditches or whatever it may be.

They are in precisely the same legal position. It is for that reason that the words set out in line 2 have been included in this way. It is not from any desire to make a person whose rights may be affected any less able to secure redress than is a statutory undertaker. It is a question of rights in the matter of injuries. Affection and severance are dealt with, as are injuries in connection with fencing, ditching or whatever it may be. For those reasons, I would ask the hon. Gentleman to withdraw his Amendment.

Mr. Renton

I do not quite follow the Parliamentary Secretary's explanation. He has said that we do not need to protect people other than statutory undertakers because they are already protected. If that is so, why do we need to protect statutory undertakers? It seems to me that either people other than statutory undertakers are not to get protection under the Bill and that statutory undertakers must, therefore, get protection, or else the hon. Member is right in his contention, and that if statutory undertakers require protection, so do other people who may be affected. As the Government were reminded by the hon. Member for Ripon (Mr. York) during the Committee stage, there are a great many water schemes which are most valuable to agriculture and which, if we are not careful, we shall find are interfered with by this Measure without any protection. I would ask the Government to look at this matter still further.

Mr. P. Thorneycroft

By leave of the House, I desire to put a further point to the Parliamentary Secretary. He has rather missed the point which I made. We are not here concerned with compensation made to some private person for severance or depreciation. What will happen here is that a road will be driven across what is virtually virgin territory. Underneath the road will inevitably be all sorts of apparatus—water pipes, water schemes, etc.—which it is rather important should remain. It may be that in the first instance a water pipe may be too near the surface and has to be pulled up and relaid, or something of that kind. Exactly the same thing would happen in that case as in the case of a statutory undertaker.

If we are to deal with that sort of thing, it should be dealt with in this Clause. The other Clauses to which the Parliamentary Secretary referred are rather off the point and contain nothing particularly relevant to the matter which we are now discussing. Would the Minister have another look at this question? He will have another opportunity in another place to see whether something can be done about it. If he finds that there is nothing in the point, no doubt the Minister can explain that later. I should like him to look at the matter again and see whether, in the case of interference with a private scheme for water supply or something of that sort, the necessary arrangements exist to see that the interests of whoever is concerned are safeguarded.

Mr. Callaghan

If I may, by leave of the House reply, I should say that we all desire to achieve what the hon. Member has said in the spirit in which he has said it. My right hon. Friend authorises me to say that if there is any deficiency in the existing Clause we will certainly examine it again. The laying of apparatus by a private undertaker which is done by virtue of the fact that he is the owner or occupier of the land in question, or has obtained a licence to use the land, gives him no right to break up the highway, and he commits an offence if he does so. He can tunnel under the highway so long as he does not cause the highway to subside, provided that it is dedicated, that is, that the authority has not taken over the subsoil. It is the practice of authorities however to take over the full conveyance rather than a dedication of the surface.

4.15 p.m.

Where that is so the private undertaker has to get the consent of the highway authority to the making of any tunnel under the new road. I am advised that that is the position. I am told that if private mains are already laid in land which the highway authority wishes to acquire for a new road, there will have to be a settlement with the owner in exactly the same way as when a highway authority at the present time widens a road. As I said, we are satisfied that the position is fully covered. I repeat that if there is any further point involved we gladly undertake to look at it again between now and the time when the Bill goes to another place, in order to give the hon. Member the satisfaction he desires.

Colonel Dower

I know of certain cases in Cumberland where water is conveyed under a road to a farmland. I can think of half a dozen roads under which there are such pipes. Will those cases be covered in some way?

Mr. Callaghan

I understand that that is all right.

Mr. Thorneycroft

In view of the assurance which has been given, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. P. Thorneycroft

I beg to move, in page 5, line 22, to leave out from the beginning, to "and," and to insert "unreasonably."

I will not take up much time in moving this Amendment as I see that the right hon. Gentleman has down an Amendment in somewhat similar terms: in page 5, line 22, to leave out "reasons for," and to insert "circumstances justifying them in." The point concerns the terms under which the special road authority shall be permitted to withhold their consent. The Clause, as it stands, reads: shall not withhold their consent under this section unless there are special reasons for doing so; If those words were allowed to remain in that form, and a case went to arbitration, the only thing which the arbitrator would be allowed to discuss was whether there were special reasons or not. The point is not whether there are special reasons but whether the reasons are such as would impel a reasonable man to take that particular course. We thought it right to include the word "unreasonably." The Minister suggests in his Amendment the words "circumstances justifying them in."

I am a somewhat rusty lawyer and I do not intend to split hairs as to which of the two forms of words should be put into the Bill, but in the ordinary course of events the word "unreasonably" is fairly well understood in British law, and it might be better to stick to what is generally put into statutes of this kind rather than invent some particular form of words which some judge might find means something different from "reasonably." However, I leave that to the right hon. Gentleman and his advisers.

Mr. Henry Strauss (Combined English Universities)

I beg to second the Amendment.

It seems to me that our Amendment is better than that of the Minister. Our Amendment omits one of the words which caused difficulty, namely "special," which the Minister's Amendment would retain. The right hon. Gentleman's Amendment also suffers from the further vice that not only does it retain the word "special," which is not defined in this connection in the definition Clause, though it is defined in other connections; it also brings in a new conception which is a little difficult to construe, "justifying them in."

I have no idea what are the special circumstances "justifying them in." The word "justifying" would suggest to lawyers looking up some Statute giving the rights, or searching for such a Statute. The general conception of "reasonable" or "unreasonable" is, I think, something which every court or tribunal in this land is perfectly experienced in dealing with. But the word that causes difficulty is "special" which the Amendment sees fit to retain. I think that the Amendment has the further vice of bringing in further words which will cause difficulties. I would ask the Minister carefully to consider whether the Amendment proposed by my hon. Friend is not better than the Amendment which he and his advisers are suggesting.

Mr. Callaghan

We have had, on his own account, one "rusty lawyer." We have also had one polished lawyer. Now, Mr. Speaker, you have someone who is not a lawyer, and you can imagine with what trepidation I enter on waters such as these. I can conceive of one further advantage to the Amendment of the hon. Gentleman which ours has not got and that is that it uses fewer words which always seems to me to be something of a help. Apart from that, I feel that our form of Amendment is preferable, even though the words are longer and more numerous.

I am wondering whether it is not a fact that, if there is inserted in a particular subsection of a Clause that some one should not withhold his consent unreasonably, it might be implied that in other circumstances he might withhold his consent unreasonably. There is a difference of opinion. Some hon. Members seem to be shaking their heads and saying "No"; others seem to feel that there is. I am told that in another place there are many eminent lawyers, and I am wondering whether they could, solve this problem for us when it gets there, and in the meantime we could retain our own words.

Mr. Renton

Surely we should try to get this Bill in as good trim as possible before it goes to another place, instead of revealing our apparent indecision by failing to decide the matter for ourselves. I am surprised that the Parliamentary Secretary does not accept the Amendment proposed by my hon. Friends. It seems to me, and here I speak as a lawyer of very uncertain calibre, that by inserting our Amendment the Government will be taking somewhat broader powers than by inserting their own. The words "reasonable" and "unreasonable" connote something very broad indeed. But as my hon. Friend the Member for Monmouth (Mr. P. Thorneycroft) has pointed out, "circumstances justifying" may give rise in the mind of some eminent judicial authority the feeling that those words were not inserted unless Parliament had a very special reason for doing so, and they would start trying to find a special reason. In trying to find that special reason they might very well limit the powers of the Government. I am sure that the Government would not wish that, and therefore I suggest that this Amendment should be accepted.

Mr. Manningham-Buller (Daventry)

The response of the Parliamentary Secretary is novel in suggesting that this House should leave the matter as it is, to be resolved in another place. I hope that this new view of the Government as to the functions of this House and of the other place will constitute a precedent which will be followed when other Bills. now under consideration upstairs, go to the other place. But unless the Government are preparing to create a precedent of that sort we really ought to ask them to clarify their position with regard to this Amendment. After all, there are lawyers on the Government side of the House as well as on this side.

We miss the hon. and learned Member for Gloucester (Mr. Turner-Samuels). I am sure that he would make a most valuable contribution as to which of these two Amendments was preferable. I feel confident that on this occasion his support for the Government would not be forthcoming, or rather I would say his support for the view put forward by the Parliamentary Secretary. I feel sure that on this occasion he would agree with me, and with my hon. Friends, that the Amendment moved from this side uses language which is more ordinarily found in statutes and consequently more easily interpreted. I ask the hon. Member, if he cannot tell us today what is the right answer, at least to say that he will give the matter most careful consideration before it goes to the other place, instead, as he rather indicated, of leaving it to the other place to express any view they wish.

Mr. Callaghan

If I may have the leave of the House to reply, I would say to the hon. and learned Gentleman that if he wishes the Government to reserve to another place points of principle such as this, I am sure that the Government would find no great difficulty in doing so. But I imagine that there was a difference of degree between the sort of point we are discussing here and the one to which he was referring.

The hon. and learned Gentleman invites me to say that we should leave this to another place to decide. He has probably not followed the history of this or he would realise that, in fact, that is what we were trying not to do. What we are proposing here, as appears on the Order Paper, is another Amendment to the words which appear now and originally appeared in Clause 4. We are proposing a form of words which get rid of this phrase, "reasons for doing so" to which some objection was taken in Committee. It was in an attempt to try to meet the views expressed in Committee by hon. Gentlemen opposite that we put down this alternative form which I hope to move very shortly. But our desire is simply to preserve the emphasis on the principle that consent should only be withheld if there is a strong reason for doing so. I am advised that of the three forms of words so far discussed the form of words which I wish to stick to are the most likely to do that.

There is another view about that, and these interpretations by individuals is something about which a great deal of discussion can turn. All I would say is that there is another opportunity to debate that. At the present time we do intend to propose an alternative form of words in order to try partially to meet other wishes and proposals, if we can.

Mr. P. Thorneycroft

In view of what Parliamentary Secretary says I will not press the point any further, and I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The following Amendment stood upon the Order Paper:

In page 5, line 22, leave out "reasons for," and insert "circumstances justifying them in."

Mr. Barnes

In view of the discussion which has taken place I do not wish to move this Amendment, so that we shall leave the whole matter open.