HC Deb 17 October 1950 vol 478 cc1936-43
Mr. Hay

I beg to move in page 17, line 7, after "given," to insert "the transport authority shall and."

It may be convenient for this Amendment to be considered with the following Amendment in line 10, to leave out "them or it," and insert "such works or reinstatement and making good."

This is a somewhat clumsily drafted Clause, and the purpose of the Amendments is to make its meaning quite unambiguous and clear. As it is, the wording may be misconstrued. The Clause is rather complicated and it is with the object of making it easier to operate that I beg to move the Amendment.

Mr. Barnes

I am not quite sure that I can meet the hon. Member on both his points. It appears to me that the first Amendment would make the passage read that the transport authority shall execute any of the work, whereas what is intended is to put the obligation on the authority to execute all the work. There appears to be a difference between "any" and "all," and I am not sure that I can accept that Amendment at this stage.

With regard to the other Amendment the Parliamentary Counsel does consider that it represents an improvement in the drafting, and I would be prepared to accept it. In view of the fact that the two Amendments are being taken together, I suggest that we might leave these two points, because I do not want to agree to a matter unless I am certain that I am improving the Bill. I will consider it between now and the Report stage.

Mr. Hay

May I add a word to what the right hon. Gentleman has said. I think that possibly he has not quite appreciated what we had in mind and how we intended the Clause to read with the first Amendment. The Clause as amended would read like this: and, where notice of such an election is duly given, the transport authority shall and the undertakers shall not …. perhaps there may be a comma inserted at that point: execute any of the works or reinstatement …. We had in mind the placing of the obligation on the transport authority and not leaving it in the air, as I think it is at the moment. As the Minister has suggested that he will consider that point between now and the Report stage, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Amendments made: In page 17, line 18, leave out from beginning, to "are," in line 19.

In line 21, after "days," insert "(or, if the works relate only to a service pipe or service line or an overhead telegraphic line, eight days)."—[Mr. Barnes.]

Mr. Manningham-Buller

I beg to move in page 19, line 22, at the end, to add: (6) Notwithstanding the provisions of the preceding subsection, the transport authority and not the undertakers shall be liable for damages arising from negligence in or nuisance arising from the execution of works or reinstatement and making good by the transport authority and shall be so liable in respect of any failure to reinstate and make good after the election by them so to do has taken effect. This Amendment, I think, raises a question to which it is not easy to find a correct answer. I am not quite satisfied with the Bill in its present form because I think it leaves this important question, which is rather similar to that raised by the hon. Member for Oldham, West (Mr. Leslie Hale), a few minutes ago. The Committee will appreciate that under Clause 10 power is given to the transport authority to elect to execute work or to make reinstatements and make good in place of the undertaker. A similar power of election is given in other parts of the Bill to a highway authority, and so we get this position arising. It may arise both with regard to the transport authority and with regard to a highway authority.

The undertaker who has made a hole in the road or made a hole in controlled land will fill it up to a certain level and then the election will be exercised by the transport authority or by the highway authority to complete the reinstatement. It is quite clear that from the provisions in the Bill and of Clause 8, which we have just been considering, that from the moment that election operates, the obligation caused by Clause 8 will be transferred away from the undertaker to the transport authority or highway authority as the case may be. That. I am sure, the right hon. Gentleman will agree with me is a short, and, I hope, an accurate statement of the position under this Bill.

The point which has not been sufficiently dealt with is the question of civil liability of the undertakers when such a right of election is exercised. I raised this point on Second Reading, because, if I might criticise the Bill, it seems to me that perhaps too much attention has been paid, particularly in Clause 8, to the creation of statutory obligations without regard to the position under common law and the civil liability of the undertakers, the transport authority, or any other authority concerned. That is a matter to which I drew attention, and it is a matter I want to see put right in the Bill.

The Attorney-General will agree, I think, that we cannot have the position existing that the undertakers should be liable to third parties for injuries arising after the election by the Transport authority or by the highway authority has taken effect. I am sure that the Attorney-General will agree that that would be quite wrong. Under a later Clause of his, it is made clear that the statutory duty after the election will rest upon the highway authority, and that the highway authority alone will have the power of making good. That is satisfactory as far as it goes, but I am not at all sure that the mere statement of these statutory duties is sufficient to exclude the common law liability of the undertakers who, after all, have made the hole in the road.

Let me put a purely hypothetical case. The hole is made by the undertakers, the notice of election operating, and it is left unlit. There is a breach of obligation by the transport authority or the highway authority under Clause 8. Is it absolutely clear that under the Bill as it stands, if a third party brought an action against the undertaker, that that action would fail? I am not at all sure that it would. I think that there will have to be put into the Bill some such words as are contained in this Amendment, or some provision whereby, if the undertaker is held liable in a civil court for an action arising out of breach of an obligation or common law duty imposed on the transport authority, there shall be a right of indemnity by the undertakers against the transport authority or the highway authority. I do not think we can leave the common law position up in the air as it is at present, but ought to put in words to make it quite clear that when the right of election has been exercised, all the duties at common law and under statute are also transferred to the authority exercising that right of election.

The Attorney-General

I am obliged to the hon. and learned Member for Northants, South (Mr. Manningham-Buller) for the very clear way in which he has moved the Amendment. The point which the Amendment raises is an important one. The hon. and learned Member will agree that the real purpose of the Bill is to codify the existing statutory law governing the relations between undertakers, on the one hand, and authorities, on the other, and that its effect is not, in general, to interfere with the common law rights of third parties. I agree at once that the Amendment is very good commonsense, but my own view about the matter is that it also happens to be one of those commonsense matters which is provided for by the common law.

To restate a proposition of the common law by way of an Amendment to this Clause, might result, when it comes to be construed, in the courts assigning some meaning other than that which the hon. and learned Member intends. He knows how it sometimes happens that a Clause is included in a Bill which really does nothing to alter the law, and how the courts, assuming that Parliament intended to alter the law, give the Clause a meaning Parliament never intended it to have. My own view, for what it is worth—and we have had an illustration here today that lawyers are not infallible—is that it is really pretty clear law that if undertakers should be precluded from doing work, as they can be under Clause 10 (1), because of the authority's election, they cannot be held liable for any failure to do it or for any negligence.

The point is covered by express authority in two cases, which I will mention now because the hon. and learned Member may care to look them up between now and Report. I refer to the case of Cressy against the South Metropolitan Gas Company, and the case of Brame against the Commercial Gas Company. Mr. Justice Kennedy and Mr. Justice Horridge both stated that when the authority took over the work the work was out of the hands of the undertakers and they had no liability—in such matters for instance as those the hon. and learned Member put about fencing or lighting to guard the hole the undertakers had made.

Mr. Leslie Hale

Suppose there is a subsidence, and we get the same sort of thing happening after the take-over? It is impossible to establish to whose negligence it was due, or to what cause. I come back to the point of view of the average country solicitor worrying over the case. He has the public authority protection to consider all the time, and if the horse fails at the last fence he is out of time. There is a great deal to be said for making this clear, and I think the Amendment does tend to make it clear.

The Attorney-General

I am not sure it would achieve that result. If negligence occurred before the election, I apprehend that the action would be against the undertaker, but my hon. Friend who is so experienced a solicitor would no doubt communicate with both parties and sue both if they blamed each other, recovering his costs from one or the other. If the negligence occurred after the take-over, there is no liability on the part of the undertakers. The Amendment does no more than assert in the Bill what in my view is already covered by common law.

6.30 p.m.

There is a disadvantage, if one is satisfied that the common law is already adequate in restating it in the Bill. If the hon. and learned Gentleman will look at the two cases to which I have referred between now and the Report stage, he will be satisfied that the proposition embodied in his Amendment is already part of the common law on the authority of those cases. I might add one other point in regard to this question on statutory duties, which I should have dealt with when my hon. Friend raised it on the previous Amendment. Clause 29 (1) expressly provides—I knew it was somewhere in the Bill—that the imposition of a criminal penalty by the Bill shall not negative the possibility of civil liability. On the construction which one sometimes gets in dealing with this question of statutory liability, the provision of a criminal penalty often leads to the conclusion that the statutory obligation is not intended to give rise to civil liability. That now does not arise on this Bill because of the criminal penalties.

Mr. Manningham-Buller

I am grateful to the right hon. and learned Gentleman for what he has said. I will certainly look at and consider the two cases to which he has referred me, but I am still not at all certain that some declaratory Clause of this nature would not be a great help to those infallible lawyers, country solicitors and others who have been mentioned. If I might suggest it, the Clause should start with the well known words, "For the avoidance of doubt." I feel myself that some Clause of that nature would be of assistance to those who tried to assist injured persons when they have claims. While I will certainly look at the matters to which the right hon and learned Gentleman has referred me, I hope he will keep an open mind and perhaps we can have something done on the Report stage if we think it necessary. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Mr. Hay

I want to draw the attention of the Committee to the amazing wording in subsection (2). I puzzled through this subsection for the better part of an hour, before I was able to get any kind of connected theme through it. To my mind, the wording is appallingly complicated, and I should be very grateful, as will all who have to operate this Bill when it becomes an Act, if the Minister of Transport would find some fresh wording to explain exactly what is meant. Subsection (4) makes contravention of subsection (2) a criminal offence. Once more we get this point, which has been raised in the course of our Debates this afternoon. I think it is perhaps putting it a bit too high to expect undertakers or even local authorities, with all the wealth, experience and knowledge they have, to be able to see that they are not contravening or are contravening, as the case may be, this extremely difficult collection of words. Will the Minister look at it again and see if between now and the Report stage—I know he has not much time but it may be possible—something could be done to tidy up the wording of this very objectionable provision.

Mr. Barnes

I am all for simplicity, and if the hon. Member, whose desire to simplify this matter I appreciate, would like to improve on the wording—

Mr. Hay

It is not my Bill.

Mr. Barnes

I know it is not the hon. Gentleman's Bill, but all sorts of people have contributed to its making. When the hon. Member is taking part in the Debate he does not hesitate to express his views, and any suggestions which he thinks should be made will be carefully considered.

Mr. Hay

I should be grateful if the hon. Member would give us an explanation of what is actually meant by subsection (2).

Question put, and agreed to.

Clause ordered to stand part of the Bill.