§ 7.45 p.m.
§ Mr. M. Philips Price (Gloucestershire, West)
I beg to move, in page 10, line 1, to leave out subsection (1) and to insert:(1) The right of any person under this Act to require the National Coal Board to carry out any repairs or to make any payment in respect of subsidence damage, is declared to be alternative to any right which the said person has apart from this Act to claim damages or compensation from the National Coal Boad in respect of that damage.I hope that this Amendment will clear up one point. It concerns the rights of small owners. I want to make it clear that not only will they have rights under the Bill but also rights under common law. It looks as if, once they have decided to use the power conferred by the Bill and if they should not be successful, they are barred from any rights they may have under common law. That will be a little hard. It is very difficult to determine always just what these rights are. The Turner Committee drew attention to that fact. Here is a passage which calls attention to the point:Legal argument and the astuteness of lawyers have led to the attaching of immunerable varieties of conditions to the original deeds severing the underlying minerals from the surface. … Some of these deeds may have been made over 200 years ago.Further on, it says:In a certain number of cases it is now impossible, even after the strictest investigation of title, either to trace the original deed of severance or to determine without litigation the present rights of the parties now concerned.1943 In those conditions of uncertainty it is not quite fair to place upon a present owner the onus of choice how he will establish his rights.
There is more than one respect in which the rights conferred by the Bill are less than might be obtained under common law. For instance, the Coal Board may decide to do only temporary repairs. That may have an effect upon the value of the property and the owner might expect to get better conditions under the common law. Again, suppose the Coal Board decide to undertake full repairs. They might not necessarily cover the whole value of the depreciation of the property such as the owner might expect to get under common law.
It is desirable to allow a certain latitude here and to make it possible for small owners who cannot get what they think they are entitled to under one method to have the opportunity of getting it under the other. We should not tie an owner down to deciding in favour of this or of that method, and say to him: "If you fail under one, the matter is finished."
§ Mr. Mainwaring
I fear that the Bill may be doing an injustice to holders of deeds which give them greater powers than are placed upon them by the Bill. There may be an injustice in the fact that the Bill asks them to elect within a certain time and in a certain matter irrespective of any need at the moment on account of damage. That in itself may lead large numbers of people to fail to observe the warning that they have to elect. I should hesitate to take away from them what may be a very material right. I prefer the suggestion that there should be alternative provision for them.
Another point which I wish to raise arises from a question which I put on Clause 11. The subsection may bring within the Bill a whole class of people, owners of dwelling-houses with deeds of a certain character, who are, to begin with, outside the scope of the Bill, and, therefore, half the cost will fall on the Treasury instead of being the responsibility of the Coal Board. That is a contradiction of the advice given by the Minister that the Treasury grants to be provided under the Bill are solely for the purpose of meeting obligations which are not at present the obligations of the Board.
1944 The Minister has no idea how many thousands of people may be involved. Nobody knows the extent of this class of property owners with deeds protecting their rights. Yet this subsection proposes to bring these people within the ambit of the rights to be conferred by the Bill. Why are we talking about £500,000 a year? The subsection completely undermines the financial proposals of the Bill. I support the Amendment because it at least safeguards the rights of these people if they so choose and protects them against a failure to elect within a stipulated time. I should like to have the Minister's view on whether I am correct in believing that the subsection provides for the transfer of an obligation on the Board's own resources to a fund half at least of which is provided b Treasury grants.
§ Mr. Higgs
The Amendment links up with one which was discussed on Clause 5, and it is impossible also entirely to separate one's argument from the argument on a subsequent Amendment in the name of the Minister. I would remind the Committee that earlier in the Debate the Parliamentary Secretary said that he hoped that the normal proceeding would be that when an owner or occupier discovered that his house had been damaged he would go straight to the nearest office of the Coal Board and get the appropriate form and fill it in so that the Coal Board would then know that damage had happened.
We all want to see that happen, but if this Amendment were rejected and the next Amendment adopted, we should find that the moment the unfortunate owner, in the first excitement at the discovery of the damage, filled in that form he finished with his common law rights for good and all. The effect of the next Amendment is that the moment one tells the Coal Board that one's house has been damaged, one loses one's common law right. I commend very seriously to the Minister, if not the exact words of the Amendment, at least the very important point that if he does not take very great care he will be depriving people, quite without their knowledge, of a very much greater right which they already possess, and I am sure that that is not his wish.
§ Mr. P. Noel-Baker
I would say first in answer to my hon. Friend the Member for 1945 Gloucestershire, West (Mr. Philips Price) that in our conception the Clause is intended only to apply to people whose rights are clear, known to them and beyond dispute. If their rights are doubtful we think that they are covered by the Bill, and it is one of the main purposes of the Bill to make quite certain that people whose rights are at present doubtful shall be covered. An Amendment which I propose to move in a moment will deal with that satisfactorily, I hope, as well as with other things.
My hon. Friend the Member for Rhondda, East (Mr. Mainwaring) asked if the financial structure of the Bill was undermined by allowing people to transfer from existing rights to the new rights under the Bill. When I used the phrase that the money provided in Clause 11 was for obligations which arose out of the Bill I also included obligations towards those who chose to opt for the Bill as against their existing rights, and the estimate made includes options of that kind, which we do not expect will be on any great scale.
My hon. Friend the Member for Rhondda, East, and the hon. Member for Bromsgrove (Mr. Higgs) have both raised the point that under the Bill as it stands a man with existing rights might lose both his existing rights and the rights under the Bill. That could happen in the following way. Under the Bill a man has an obligation to elect either for the Bill or for his existing rights within a given period. If he does not exercise that option and if he does not make a definitive act of election he is deemed to have elected for the rights under the Bill, but, having made no definitive action of any kind, when damage occurs, he may then fail to put in a notice to the Coal Board believing that his previous rights continue, being in ignorance of the fact that he ought to have elected and has not done so. In that manner both rights may disappear. An Amendment which I propose to move in a moment or two is intended to deal with that and I hope that hon. Members will consider that satisfactory. We do not, of course, intend to allow a situation in which both rights may be lost.
§ The Amendment of my hon. Friend the Member for Gloucestershire, West, as it stands would not be satisfactory to anybody and certainly not to the Coal Board. If a man was free in perpetuity 1946 to exercise either right without any restrictions on the time or the manner in which he made his choice the Coal Board would be put in a very difficult situation. It might begin a repair believing that the man would continue with his existing right and he might then elect otherwise, and they could be placed in very great difficulty in other ways. If a man is to exercise a right it should be quite clear that he does it definitely at a given time so that everybody, including the man himself, knows where he stands. I hope that my hon. Friend will agree to withdraw the Amendment and accept the Amendment which I propose to move shortly.
§ 8.0 p.m.
§ Mr. M. Philips Price
I see the point of my right hon. Friend and, naturally, I would not like to see a situation arising in which the Coal Board did not know where they were. I am only trying to make it possible for the owner, if he cannot get compensation under the Bill for one reason or another, still to be able to use his common law rights. If my right hon. Friend thinks that under the Amendment he is about to move to line 6, that will happen, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. P. Noel-Baker
I beg to move in line 6 to leave out from "elect," to "whether," in line 7.
If I may take this Amendment and the one to line 9 together, the second part of the subsection will read as follows:… he may elect whether to exercise the right conferred by this Act or the other right aforesaid, and shall be bound by his election accordingly, and, if he gives a notice under subsection (1) of section five of this Act in respect of the damage, he shall be deemed to have elected to exercise the right conferred by this Act.That does not leave both rights open to the claimant; he must choose one or the other. Of course, on his form of claim, we can put a warning note to the effect that putting in a claim under Section 5 means that he is electing for the Act and thereby giving up his own rights. We can make that perfectly clear. This Amendment, which I hope my hon. Friend will regard as satisfactory, will, however, make it impossible for a man to lose both his rights, because, if he has alternative rights and he gives a valid notice under the Act, he will thereby elect to exercise his rights under it. If he does not give any valid 1947 notice under the Act, then he will not have any right under it but his old rights will go on. I hope, with that explanation, the Committee will accept the Amendment.
§ Sir P. Spens
On the whole, I prefer the Clause in the Bill, for the following reason. When we had the discussion on the time limit for the notice of damage, everyone was agreed that it should be as short as possible, and the Parliamentary Secretary mentioned a month or six weeks. I quite agree with the right hon. Gentleman that if one is quite certain what are one's other rights, whether under a title or under common law, the same length of time is sufficient for a man to make up his mind whether to take his rights under this Bill or otherwise.
But suppose a subsidence occurs to his house and it is the first occasion which has driven him to look into his rights and he goes to a lawyer. The lawyer will say, "You have certain rights under this Act. You have a month in which to give notice of claim but, under your title there are better rights against somebody else and this will involve an investigation of title which may take a substantial time." The man may, therefore, be driven at the last moment to say, "My time is nearly up, I must put in a claim under this Act, otherwise I shall lose my statutory rights." And by so doing he deprives himself of his common law or other contractual rights.
For that reason I think it is a mistake to link up the term of the two notices. I am not at all sure that, under the regulations which the right hon. Gentleman is to make, it might not be possible to have a different time limit for the two. If, however, there is to be one time limit, a short time limit in which to give notice will produce a substantial number of hard cases of people who may be compelled to make up their minds on their complicated titles.
I see the Lord Advocate sitting there. In my time I have investigated, to my sorrow, many titles to mining properties in this country. The Lord Advocate must know enough of English land law to realise how complicated it is to advise the owner of one small property of the rights, if any, he has to support him in his claim. Therefore, this requires a little further consideration.
§ Mr. Mainwaring
May I ask the hon. and learned Member a question? In the circumstances referred to, of a doubt as to the precise extent of a man's rights under common law and his hesitancy about taking the rights conferred under this Bill, would it not be possible to meet that by a provisional warning to the Coal Board, because it would deal with both cases?
§ Sir P. Spens
I can only deal with what is in the Bill, and I hope I have made my point clear to the Minister.
§ Mr. Noel-Baker
May I answer that point at once? In the case which the hon. and learned Member envisages, under the regulations the man would clearly have a good case for an extension of time. The regulations will certainly provide for that. It will be a hardship case and I do not think it will be a common one. Of course the Coal Board would allow an extension; it would have to do so.
§ Sir H. Lucas-Tooth
I am not certain that the right hon. Gentleman has met the case of my hon. and learned Friend. We have an Amendment on the Order Paper to line 6 which will fail in view of the Amendment moved by the Minister. That Amendment was designed to give a minimum period of six months to individuals in which to make up their minds as to which remedy they would seek if their house fell down. I heartily support the plea of my hon. and learned Friend that we should not try to get these two forms of notice tied up together simply for reasons of administrative neatness, because that is what is in the mind of the Government here.
The two forms of notice are quite different. The one is that which my hon. Friend the Member for Bromsgrove (Mr. Higgs) dealt with on an earlier Clause, This one deals with the question of deciding which kind of right the owner is to choose. Under the second Amendment of the right hon. Gentleman, a person may fall between the two stools. Take the case of someone who gives notice under this Clause and thereby, by implication, opts for his rights under this Bill. The right hon. Gentleman will not deny that there are certain defences open to the Coal Board in the event of a claim being made under this Bill, and it is perfectly possible that in a specific case 1949 the Coal Board will resist successfully under this Bill a claim which they could not have resisted if it had been made otherwise under the rights of that person. However, because he has served the notice under the earlier Clause, he will be forced to rely on his rights under the Bill, and he loses those by reason of the National Coal Board being able to set up a defence, and then he cannot have recourse to his other rights because he has opted himself against them.
If the right hon. Gentleman says, "That is a hard case and we will have to deal with that specially," he is doing the very thing which he says he cannot tolerate, because he is leaving it open, after the end of all this litigation, for the National Coal Board to ascertain how they stand. If a claim under the Clause is to be a valid claim merely if it is substantiated, and if it falls on being considered, the other claim then crops up again and there will be exactly the ambiguity which the right hon. Gentleman says that he is trying to avoid by the Amendment.
I do not think, therefore, that what the Minister is suggesting will really carry out the intention of the Government. I hope that he will look at this question again and will put down other Amendments in order to ensure that some quite definite and longer period of notice is given and that there is to be no implied giving of notice merely because action is taken under subsection (1).
§ Mr. Higgs
I should like briefly to commend to the right hon. Gentleman the suggestion of his hon. Friend behind him, that instead of having one notice which tells the Coal Board that the damage has occurred but which also automatically binds the owner to his remedy under the Bill, there shall be first a simple notice, which could if necessary be called a provisional notice, which says no more than this: "Damage has occurred to my house and I shall do my best to make you pay for it under one or other procedure." The first notice could be given quite quickly, and a more generous time could be allowed in which to make all the research. Then a further notice could be given, that, "Having made my researches I now say that I base my claim under the Bill," or that, "I now say that I make my claim under common 1950 law because I think that that will make my case better." That is more or less the way in which the Bill was drawn up, subject only to reconsideration of the question of the time for the giving of the notice.
§ Miss Jennie Lee (Cannock)
I am uneasy about this matter and perhaps the Minister, by further explanation, can clear up the difficulty. Constituents might come to us and ask what they ought to do, whether they should hold on to their existing protection or whether they should abandon that and make a claim under the provisions of the Bill when it becomes an Act. None of us is in a position to give that kind of legal advice. It would be rather reckless of us, in fact, if we offered to give it, even after a consideration of all the individual circumstances, and certainly we cannot give a broad "Yes" or "No."
There is no doubt whatever about what is the intention of every individual who is affected: it is to keep for himself whatever he feels would be the wider and the more complete protection. Could there not be some form of wording which would take account of the fact that working people in particular—I mean people who are not acting through solicitors—find it very hard to make those decisions and thus do nothing at all until calamity is overtaking them. If we could give them the general assurance that when their home was in trouble they would have the protection of whatever was the wider scope for them, I think that that would be equity, because that is certainly what everyone would do who had proper legal advice.
Mr. G. Lloyd
Before the Lord Advocate replies, may I draw his attention to this unusual coalition from the Midlands? The hon. Member for Cannock (Miss Lee) and my hon. Friend the Member for Bromsgrove (Mr. Higgs) are both stressing substantially the same point. All that I really want to ask is whether the Government, if they cannot make a concession now, would consider between now and the Report stage the very interesting suggestion by my hon. Friend the Member for Bromsgrove of the possibility of the double form of notice, which seemed to me to offer a way of escape from the possible difficulties of the present arrangement.
§ 8.15 p.m.
§ The Lord Advocate
We are all very much obliged for the constructive suggestions which have been put forward in connection with the Amendment. In my opinion, the hon. Member for Hendon, South (Sir H. Lucas-Tooth) raised, if I may respectfully say so, a false point when he drew attention to the fact that if a person elected to make recovery under one system, he might lose rights which he might have had under the other system of recovery. Of course, that always happens when an election is open to the individual, and we have had many examples of that in our law. The one which appeals to my mind directly is the election between workmen's compensation and common law damages.
§ Sir H. Lucas-Tooth
That election can only take place wittingly and deliberately by the individual. The difference in the present case is that the election is to be done by implication.
§ The Lord Advocate
With all due respect, no; because the Bill has to be read as a whole and not in isolated parts. If effect is given to these Amendments, the person owning a house which is affected by subsidence, who has a protective clause in his title but who also has the right of recourse to remedies under the Bill, will know that if he puts in a notice claiming his rights under the Bill, he has made his election and has thereby forfeited the rights which he would have had under the protective clause in his title.
§ The Lord Advocate
I do not know why the hon. Member says, "That is very doubtful." It seems to me to be crystal clear. He is then certiorated of the fact that a man either takes his remedies under the Bill—and that he does by putting in his notice under Clause 5—or he seeks his remedy under the protective clause in his title. Having made that election, a house owner has to abide by it. I think that that disposes of this particular point.
Then there is the other very difficult point as to whether or not the two periods should be identical. The argument in favour of identity of periods is this: that if there were two separate periods—and 1952 if there were one period under Clause 5 and a longer period under the present Clause—the result would be that although the Coal Board had received notice under Clause 5 that the person was claiming his rights under the Act, as it would then be, the Board could do nothing until the expiry of the later period, by which time the claimant has to opt. I think that that is undesirable, because it creates a vacuum during which nothing can be done. I think, therefore, that if we could get identity of periods, that would be much more desirable administratively.
The point was raised by the hon. and learned Member for Kensington, South (Sir P. Spens) of whether the time allowed for the submission of notice under Clause 5 would be sufficient for what may be a rather long and careful scrutiny of the title in order to ascertain one's exact rights under the title deeds. I agree with the hon. and learned Member that titles can be very obscure, and that sometimes people even go to the length of submitting them to Counsel for elucidation. As my hon. Friend the Parliamentary Secretary explained when dealing with Clause 5, however, when regulations are being made under that Clause special provision can be made for such cases. I would have thought that the appropriate method of dealing with this matter would be to deal with this particular type of case, where there are alternative remedies, in the regulations, specifying that a claimant who has such alternative remedies may be given an extended time in which to submit his notice under Clause 5.
That seems to me to be the best administrative and the practical method, for this reason. If, as has been said earlier today, a definite period is written into the Act, if and when it eventually emerges, then that becomes inflexible, and in administrative experience it may transpire that the period is either too long or too short and requires an amending Bill to come before the House. Surely, if the same result could be effected through the regulations, and experience showed that the time should be either extended or shortened, then it could be done by the simple expedient of passing a new regulation.
With the assurance that this type of case is typical of the special type of case which could be dealt with in the proviso which we have made in relation to the 1953 regulations, I trust that the Committee will accept the desirability of identity of time in respect of the notice which is given under Clause 5 and in the making of the election, leaving the flexibility to regulations in order to determine what the length of time should be in cases of this particular nature.
§ Mr. Mainwaring
Would my right hon. and learned Friend kindly reply to this practical question, which relates to the future and not to the past? Suppose that an owner finds that his dwelling-house becomes damaged through subsidence. He wishes to get that subsidence compensated for or the repair work done by the Coal Board. The Coal Board is the only party he has to negotiate with whether it is under common law rights or under this Measure. First he has to notify the Coal Board that the damage has in fact occurred. What does it matter to the Coal Board whether at that moment he tells them that they will have to pay for it under the new Act, or under common law? I cannot see why it is necessary to have a complicated system when the Coal Board have been notified of the damage and if it takes two or three months for the owner to determine whether to take action under common law or under this Measure what does it matter?
§ The Lord Advocate
It seems to me that the practical explanation is that if damage has occurred, obviously it is desirable that it should be repaired at the earliest possible moment, because deterioration might take place and it might be difficult to distinguish between the original damage and further damage. There should be no lacuna between the notice making the claim under the Act and the notice and election under this Clause.
§ Sir P. Spens
May I add one point? As I said on Second Reading, I think one ought to remember that the main effect of this Measure is to give a right of repairs or compensation to all that class of property which under common law have no right at present. Therefore, this question only arises in respect of the much smaller section that have alternative rights. In those circumstances, although I am not altogether happy, and shall not be happy until I see the regulations, I think that on the whole the 1954 Committee ought not to assume that we are discussing the case of the greatest number of properties, but of the rather exceptional properties which have other rights besides what would be their statutory rights.
§ Amendment agreed to.
Further Amendment made: In page 10, line 9, leave out "fails to elect as aforesaid," and insert:
gives a notice under subsection (1) of section five of this Act in respect of the damage."—[Mr. Noel-Baker.]
§ Clause, as amended, ordered to stand part of the Bill.