HC Deb 17 October 1950 vol 478 cc1901-9
Mr. Higgs

I beg to move, in page 4, line 30, at the end, to insert: Provided that if the undertakers agree with the authority or managers concerned that the works proposed are of such a nature or extent that the functions of the authority or managers concerned under this Act can adequately be carried out without the submission of a plan and section, a written statement giving particulars of the works proposed may be submitted and accepted in lieu of such plan and section. The first subsection of the Clause requires that undertakers who propose to execute works shall deposit a plan and a section thereof with the authority concerned. It has been represented that in all cases that may not be necessary. Obviously, in a Bill the purpose of which is to expedite works of this kind, we want to cut out red tape and preliminary procedure as far as we can.

It has been represented that in works like the laying of a water main, the line which the main is to follow is, obviously, a matter which the authority responsible for the street are concerned to know; but since the main follows the surface of the street, keeping an even depth below the surface and following its contours, the complicated procedure of preparing a section of the whole length may be much more than is necessary. Furthermore, there may be works which are trivial and slight, which fall within the definition of the Bill, for which it may be completely unnecessary, for practical purposes, to have plans and sections prepared.

The purpose of the Amendment is to give to the highway or other appropriate authority the right and power to say to undertakers, "If you tell us briefly in writing that this is all you propose to do, we shall not require detailed plans and sections, which will save time and enable you to get on with the job."

Mr. Barnes

I agree entirely with the sentiments expressed by the hon. Member. In matters of this description we do not want a lot of elaborate plans and details of sections when the matter is one which common sense and businesslike opinion can determine at a glance. As the hon. Member said, subsection (1) requires undertakers to submit plans and sections, but it does not define "plan" or "section." The matter is, in fact, left open and there is nothing to prevent the following of the process suggested by the hon. Member.

Where the works in question need very little technical description, the prevailing practice is one of communication, provided that it is satisfactory; that is sufficient. There is no obligation for anything further to be done. Whilst the viewpoint of the hon. Member is perfectly sound and sensible, there is, therefore, nothing in the Bill to prevent such a course as he has suggested, and I am satisfied that under normal procedure that method would prevail.

4.30 p.m.

Mr. David Renton (Huntingdon)

Is the right hon. Gentleman quite sure about this, because it seems from subsection (1) of Clause 3, that the submission of a plan is a condition precedent to the execution of the works?

Mr. Barnes

That might be just an informal and simple sketch. It need not be an elaborate technical presentation, but something which conveys to the other interested parties what is proposed. It can be a plan or sketch of that description.

Mr. Renton

That is splendid, if it is to be so, but when Parliament puts down as a matter of detailed instruction in an Act of Parliament that there shall be a plan submitted before works can be executed, the words of Parliament are likely to be taken seriously. One can well imagine an undertaker who was suffering from an excess of zeal or one of the authorities or managers, already overburdened with work and wanting to push the matter off a little, asking, "Where is your plan? Parliament has said you have to produce a plan." We do suffer from the fact that there is a good deal of excess of zeal in public administration today and perhaps to some extent Parliament is responsible, because we have too often insisted on conditions of this kind being complied with before people can go ahead to get a job done. I think the suggestion in the Amendment is very reasonable and is one which, bearing in mind the wording of subsection (3), should not be so easily rejected by the Minister, but he should look at it further.

Mr. Barnes

I am not rejecting it in the spirit suggested by the hon. Member for Huntingdon (Mr. Renton), but what I am pointing out is that these matters have been considered in great detail by all the bodies concerned—the very bodies to which he has referred. They are satisfied that because there is no definition of a plan the usual procedure and custom shall prevail. We must not forget in providing this kind of statutory arrangement or authority for co-operation of this description between a number of public bodies, that they are accustomed to carry out work of this description and, even before this Bill, they had to communicate and take other interests into consideration.

I do not think it is necessary to assume that we have to provide for every detail of administration in a Bill of this kind, nor that they will not show common sense in interpretation. As they have more or less agreed to this procedure, I am fairly satisfied it would work. But, again, I will give an undertaking that between now and the Report stage the words proposed will be looked at.

I do not want to see all the work which has been put into the Bill thrown away at this stage as it represents a degree of co-operation which we have not achieved in the past, but, if hon. Members will leave it at that and permit us to have a further consultation between now and Report stage, which we hope to get on Friday, probably that will meet the point which has been raised. I think that all hon. Members want is an assurance that it will be interpreted so that an informal sketch or communication could be used in cases such as those to which the hon. Member for Bromsgrove (Mr. Higgs) drew attention.

Mr. Manningham-Buller

We are all agreed on what we want to achieve and I do not want to take up time, except to point out that subsection (5) makes it an offence to fail to furnish a plan and section. It is rather important, therefore, that there should be some degree of precision as to what is meant by a plan and section. It may be that two authorities can easily agree to call a sketch, drawn on a piece of note paper with a pencil, a plan, but that is not a plan and section. I think the right hon. Gentleman should look at the wording again as we want to achieve a common object which may be achieved by adoption of words such as those suggested in the Amendment. I think it a little dangerous to leave it with the words "plan and section" in view of the penalty which is provided.

Mr. Leslie Hale (Oldham, West)

The word "plan," is not defined in this Measure, but, in consequence of a large number of cases it has acquired a judicial meaning. I do not agree with my right hon. Friend about local authorities. In my view no one is worse in demanding detailed plans than a local authority. If one shoves up a dog kennel, one has to put in a plan, which will probably last longer than the dog kennel. People are entitled to know whether they are rendering themselves liable to a prosecution, and I hope my right hon. and learned Friend will take the point made by the hon. and learned Member for Northants, South (Mr. Manningham-Buller) which is a small point but a serious one. People have a right to know what the law is and the obligations they are under.

The Attorney-General

As my right hon. Friend has indicated, we will look at the matter again, but I think hon. Members are taking a view which is a trifle legalistic. A criminal offence is not constituted by failing to submit a plan and section but by doing works before a plan and section have been, not submitted, but settled and the plan and section are settled by negotiation between the undertaking and the authority. It is entirely within their power to make the plan and section exactly what they like to make them.

This Bill is largely codification—codification with improvements—but this kind of phrase in reference to a plan occurs in numerous statutes dealing with undertakers and authorities. It only refers to the highway authorities, the ordinary citizen is not affected, and no difficulty has been experienced in the past. We will look at the matter again and see if we can tighten it up, but it has not given trouble in the past and I do not think it will give trouble in the future.

Mr. Manningham-Buller

I think the right hon. and learned Gentleman has fallen into error as the offence I referred to was the failure to submit a plan and section after the execution of emergency works under subsection (3). It may be, if we do not have the words which have been suggested, a plan and a section having to be provided after the execution of the works, that lack of precision in the wording will lead to considerable trouble.

Mr. Leslie Hale

Will my right hon. and learned Friend explain whether he uses "legalistic" as an adjective of approval or disapproval?

The Attorney-General

Sometimes by way of approval and sometimes by way of disapproval; it depends entirely on circumstances. I always remember what Humpty Dumpty said: When I use a word … it means just what I choose it to mean.

Mr. Renton

While this matter is being considered further, I think we should bear in mind this, which follows from the point made by the Attorney-General when he accused us of being legalistic. We have to bear in mind that the people who will have to administer subsection (1) will not be lawyers, but will be very anxious to comply with the law. We must prevent them from falling into the error of being too legalistic and they may very easily say, "Under subsection (5), if we do not get this thing right, we shall be subjected to a penalty." We do not want them to be fussing too much about the particular type of plan and section they are to settle in order to avoid the penalty. Let us make it aboundantly clear that a sketch plan will do.

Mr. Higgs

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

Amendment, by leave, withdrawn.

The Attorney-General

I beg to move, in page 6, line 11, to leave out from "of," to "they," in line 13, and to insert: a direction under this subsection. This Amendment has been put down in part to meet the Amendment standing in the name of the hon. and learned Member for Northants, South (Mr. Manningham-Buller), in page 6, to leave out lines 10 to 15. It deals with the question of penalties. Amendments have been put down to various Parts of the Bill dealing with the question of criminal penalties, and it might be convenient if we discussed the general principle of the matter now and disposed of it on this Amendment.

In some of the Amendments which they have put down hon. Members opposite have taken the view that the penalties for failing to comply with the Measure should be of a civil nature recoverable in the summary courts or the county courts. We are in partial agreement with that view. Where an obligation to do works in accordance with a particular plan and section is the result of an agreement with other parties, where it is, so to speak, a contractual obligation, we feel, as do hon. Members opposite, that it would be inappropriate to impose a criminal penalty for its breach.

The Amendment which the Committee are discussing will have the effect of removing the criminal penalty in the case in which an obligation to do works in accordance with a particular plan and section is a contractual one, resulting from an agreement between the interested parties. On the other hand, we think that the penalty provisions should be retained in cases where there is a failure—I am dealing with the point relating to this Clause at the moment—to carry out the directions of an arbitrator. In that case it seems to us appropriate that there should be a criminal penalty. As hon. Members know, the arbitrator can give a direction to carry out works under Clause 3 (6) only if the undertakers have already been guilty of a default in doing major works without previously settling a plan and section, so that there is a kind of double default if the undertakers subsequently fail to comply with a direction which the arbitrator may have given in regard to the matter.

The Committee will appreciate that all these cases which involve some interference with the highways may have serious consequences on the rights of the public. While I share with hon. Members opposite their desire to show kindness to the nationalised undertakings, there seems to be no particular reason why those undertakings, such as gas, electricity and transport, having become nationalised, should be relieved from the criminal penalties hitherto imposed upon them. I go further. If I were to satisfy one of my private ambitions, which is to go out into Whitehall and dig a hole in the road to see how long it would take the authorities to discover that I was not an official of the local water board, I should no doubt eventually be visited with severe criminal penalties.

I see no reason why, if the Gas Board dig holes in the road without having the proper authority to do so, it should not be visited with such penalties. In a large number of Acts which we are here codifying, criminal penalties have been imposed in circumstances of this kind. We feel it proper to retain that provision in this Measure in connection with the decision of the arbitrator. We do, however, meet the view of hon. Members opposite by removing such a penalty where the default is a purely contractual one.

4.45 p.m.

Mr. Manningham-Buller

In moving this Amendment, the Attorney-General has dealt with the whole range of criminal offences created by the Bill. The Bill is remarkable in at least one respect, because one would not expect to find that a Bill of this nature creates so many criminal offences. On almost every page a criminal offence is created. I am sure that the Attorney-General would agree that it is not very easy for anyone to determine the precise nature of the offence created.

This is a very complicated Bill, almost as complicated as the Town and Country Planning Act, 1947. One is rather reluctant to create criminal offences when that can be avoided, when one bears in mind the immense burden cast upon magistrates' clerks of advising their benches as to the law, and of perhaps having to construe a complicated Section of a Measure of this character at very short notice. One does not want to do anything to encourage any form of unofficial strike. Therefore, we have considered whether it is possible, instead of creating a criminal offence in every case, to devise a form of words whereby there should be a penalty recoverable summarily or in the county court. I gather from the Attorney-General that the Government are not able to accept Amendments which we have tabled to other parts of the Bill to try to do that.

I would go a little way with the Attorney-General in saying that I think it is right in some cases, but not in all, that criminal offences should be created. I do not think that we have tabled Amendments at every point where an offence has been created. The right hon. and learned Gentleman made great play of the fact that the Government are seeking, by the Bill, to impose criminal liability on the Gas Board, the Electricity Board and other nationalised industries. I shall pray in aid those words when we consider the Clause which frees the Post Office from any liability whatever. I shall ask him to bear in mind the arguments which he has now advanced when we discuss that matter a little later, though I hope not too late, this evening.

So far as the Amendment now before the Committee is concerned, I would say that we took strong objection to lines 10 to 15 in page 6 because there one finds it is made a criminal offence to break a contractual obligation. The right hon. and learned Gentleman has recently had occasion to consider an Act of Parliament which provides that the breach of a contractual obligation should be a criminal offence, but I am sure that he will agree with me that we need to be extremely careful how we extend the law in that respect, if we extend it at all. A strong case must be made out for any such change of the law.

We do not believe that the Bill will be in the least impaired by omitting from its provisions one which makes a breach of a contract a criminal offence. There- fore, I welcome the Amendment which has been moved by the Attorney-General. If I understand it correctly it makes failure to comply with a direction given by the arbitrator a criminal offence but ceases to make it a criminal offence to break a contractual obligation accepted voluntarily under the terms of the Bill.

The Attorney-General

May I add a word on the points raised by the hon. and learned Gentleman? We have taken a consistent line throughout this Bill in regard to obligation as a result of agreement between the parties, and, in general, I agree with what the hon. and learned Gentleman said about that. Whether a breach of contractual obligation should also be a criminal offence depends how far injury resulting from it affects only the parties to the contract or, on the other hand, how far the welfare and interest of the general public may be involved. In this case, and in the case of this Bill, I think we shall satisfy the hon. and learned Gentleman at least on that part of the case.

So far as concerns other cases where we think it right to retain the criminal penalty, the position under the Bill is that there are 12 cases where offences are created; not new offences, not new in kind, but offences which were, for the most part, offences under earlier legislation which we are codifying here. Under the earlier legislation affecting the kind of undertakers covering the same field as the Bill covers there are, so far as I can make out, 25 different criminal offences; so that we are, in effect, cutting down the criminal liability.

So far as the Post Office is concerned, we must deal with that when we come to it, but the hon. and learned Gentleman will appreciate that there is a real constitutional point about making the Crown criminally liable in the Courts of the Crown, on the prosecution of the Crown. Another point raising difficulty is a financial one, because under the new Act we passed last year, fines go to the Exchequer, so that the net result of a criminal prosecution would be to pass money from one pocket to another.

Mr. Manningham-Buller

As it will be in the case of the Gas Board.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.