Clause 7.—(REQUIREMENTS AS TO MODE OF EXECUTING MAJOR WORKS, AND AS TO REINSTATEMENT.) (Hansard, 17 October 1950)

§ Mr. Barnes
I beg to move, in page 12, line 27, after "it," to insert: shall carry on and complete the works with all such dispatch as is reasonably practicable, and. The hon. and learned Member for Northants, South (Mr. Manningham-Buller) will recollect that during the Second Reading Debate he raised this problem rather pointedly—and it obtained support in other quarters—that no arrangements had been made for undertakers to complete their works with dispatch. On looking into the matter I decided to submit this Amendment to meet that point. As the Bill was then drawn, there was no such duty on the undertakers. I do not assume, and I do not suppose other hon. Members would assume, that there would be general neglect on the part of undertakers in this respect, but nevertheless, as this is a process of co-ordination there is a good deal to be said for emphasising the need for the quick results and the steady dispatch of any task that they undertook, especially as it affected other undertakers. I submit that this Amendment fully meets the point.

§ Mr. Manningham-Buller
I think this Amendment is a definite improvement, but I am not quite clear how it operates having regard to the terms of Clause 29 (4). I ask the Attorney-General whether the insertion of these words in Clause 7 (2) means that anyone who does not carry on and complete the works with all such dispatch as is reasonably practicable will be guilty of a criminal offence. Clause 7 (2) goes on to refer to specific obligations, but this Amendment is put in before reference is made to those obligations. I ask the right hon. and learned 1925 Gentleman whether by the insertion of these words one is merely imposing a duty without providing any sanction for the non-performance of that duty. My second question is whether the insertion of these words adds anything to what is in Clause 29 (4).

§ The Attorney-General
I do not think Clause 29 to which the hon. and learned Gentleman has called attention is attracted in this case. There is deliberately no sanction for the Amendment which has been moved by my right hon. Friend because it is very difficult to define the duty specifically enough to impose a criminal sanction for its breach. It is a little difficult to impose a punishment on undertakers for not doing what in practice manifestly they will want to do. We did consider the point which the hon. and learned Gentleman has raised, but it appeared difficult to make the obligation actually sanctionable. We hope, notwithstanding that there is no definite sanction for it, that it will be adhered to in practice, and that in practice it will be in the interests of those concerned to adhere to it.

§ Mr. Hay
I beg to move, in page 13, line 32, after "with," to insert "reasonable."

§ The Deputy-Chairman
I think we might discuss this Amendment with the following Amendment, in line 33, after "their," to insert "reasonable."

§ Mr. Hay
The Clause lays down requirements in executing major works and subsection (4), with which these Amendments are concerned, makes it necessary for the undertakers to carry out their works in a certain manner. Penal consequences are attached to the failure to carry out certain requirements. The object of these Amendments can be stated shortly. We feel that the wording of subsection (4) is a little too hard, bearing in mind that those penal consequences are attached in the second part of the subsection. We feel that there should be a softening of the requirements, if I may put it that way, and we suggest that undertakers should be called upon to carry out their obligations in accordance with the reasonable requirements of such an authority or managers or to their reasonable satisfaction.

§ Mr. Barnes
I see no reason to disagree with that view and I shall be glad to accept both Amendments.

§ The Chairman
I presume that, in view of the following Government Amendment, the hon. and learned Member for Northants, South (Mr. Manningham-Buller) will not wish to move his Amendment, in page 13, line 34, after "may," insert within twenty-eight days of the completion of the said works.

§ Mr. Barnes
I beg to move, in page 13, line 38, after "purpose," to insert and that the claim was notified as early as was reasonably practicable. As drafted, the Clause places no obligation upon the interested parties who complain about an undertaker's work to lodge that complaint within a reasonable time. This Amendment lays down that, where interested parties are dissatisfied with the way in which undertakers have done their work, they shall lodge as early as "reasonably practicable" their complaint for additional remedial works to be done. I hope that the word "reasonable" will again commend itself to the Committee.

§ Mr. Higgs
This Amendment meets very fully the point which I and my hon. Friends had in mind in the Amendment which has not been moved, and we are indebted to the Minister for dealing with the situation.

§ The Attorney-General
I beg to move, in page 13, line 40, after "of," to insert an award on an arbitration under. This Amendment is similar to that which we had an opportunity of discussing earlier—an Amendment to Clause 3, page 6, line 11. The criminal penalty, as the Committee then agreed, should not be imposed simply in the case of a failure to carry out an agreement as to works, but should exist where there has been a disobedience to an arbitrator's direction to do them. That is the effect of this Amendment.

§ Mr. Powell
I beg to move, in page 14, line 10, to leave out "six," and to insert "twelve."
This subsection deals with the case where the reinstatement of a street, after undertakers' works, subsequently proves to be defective through the fault of the undertakers with the result that either subsidence or some other defect becomes apparent. The question is to decide what is a fair period within which such subsidence or other defect should be attributable to the negligence or fault of the reinstating undertakers. The period in the Bill is six months.
I am aware that it has been argued already in another place that that period is too short and that it should be extended to a year. Nevertheless, I believe that the grounds for the extension should be brought forward again, because they appear to me to be strong. We have to make up our minds what is a fair criterion. We must not take a period which is so long that the natural wear and tear upon a road might have contributed to the subsidence or the defects, nor must we take a period so short that the defects could not be expected to show themselves. I suggest that a period of one year is the fairest we could lay down.
In that case, the reinstated street will have gone through the whole of the seasons of the year. Let us suppose that the breaking open and reinstatement took place in March or April of a year in which there was a tine and dry summer. At the end of six months the same atmospheric conditions would prevail as those prevailing at the reinstatement, and in the subsequent invariably severe and inclement winter, as I believe it would be, the subsidence and defects due to faulty reinstatement would show themselves. It seems to me only reasonable that the works of reinstatement should stand, at any rate, the test of seeing the clock round, of seeing one year through all the seasons.

§ Mr. Barnes
The hon. Member has raised an exceedingly disputable issue. He is aware that the Carnock Committee gave full consideration to this subject and came to the conclusion that the period of six months was probably a fairer compromise than the 12 months which prevailed formerly in the case of a good many undertakers. In our negotiations on this 1928 Bill we have found this a very difficult issue. It is not always possible fairly to determine the problem of the settlement of the subsoil. As the hon. Member knows, it can vary in a great number of conditions.
I emphasise that I do not take the view that any agreements which have been reached in our discussions cannot be altered in this House. I do not take that view at all, but I think hon. Members are generally aware that in this kind of Bill we have to deal with a number of public and statutory authorities which have statutory powers granted by this House and which are governed by statute. In matters of this kind, where there is a dispute on questions of liability, of costs, of expenses and so on, we have to enter into a good deal of negotiation which, invariably, means, finally, a compromise. On this question of the highway authority's finally repairing the roads, it was felt that the six months period ought reasonably to represent the time taken for the settlement of the subsoil, and that, more or less, at the end of that time, therefore, the undertakers' liabilities ought to end.
I do not think there is any doubt that if I were to depart from this provision at this stage it would cause a sense of unfairness, as a going back on what had been a generally agreed period. I would be the first to admit that there are examples where we could show six months was not a sufficient time—or that seven months or eight months or nine months was not a sufficient time; but, on the whole, this is a very fair compromise; it represents a considered decision of the Carnock Committee, upon whose recommendations this Bill's provisions are largely framed. Therefore, I urge that this Amendment should not be pressed.

§ Sir Austin Hudson (Lewisham, North)
I entirely agree with what the Minister says, that, of course, this House is entirely master of its destiny, and that this Committee can do what it likes; but that, on the other hand, as I pointed out on Second Reading, and as other speakers did, this Bill is the result of years and years of negotiation—very careful negotiation from 1925 until 1938—between a large number of people. It was only after all that negotiation that we were able to get something like agreement and to get this Bill before the House.
1929 Therefore, unless there is some very strong reason why an agreed time such as six months—as it is in this case—should be altered, I suggest to the Committee that it would be very much better to keep the agreement. Once we start to alter it—and it may be necessary later to do so in some particular—we may cause a sense of injustice; whereas at the present moment, I think, there is a general agreement on both sides of the Committee and outside, amongst all the numerous people interested in this Bill, that we have got something we are all generally agreed upon. Some of those people have had to make concessions one way or the other, and if we can keep the agreement I hope the Committee will agree to do so.

§ Mr. Geoffrey Wilson (Truro)
I beg to move, in page 14, line 41, at the end, to insert: And provided that if any dispute shall arise between the undertakers and any authority or managers concerned as to whether subsidence has been shown to have been attributable to defective workmanship or use of defective materials in the doing of reinstatement or making good so far as it was done otherwise than by the undertakers or whether deterioration has been shown to have been attributable to defective workmanship or use of defective materials in the doing of reinstatement or making good so far as it was done by the undertakers, such dispute shall be determined by arbitration. I shall not detain the Committee to go into this matter. The Amendment is intended to provide for the arbitration procedure because it is thought that there is likely to be some argument about the exact application of the words "defective workmanship or use of defective materials," which appear in lines 24 and 32 of page 14.

§ The Attorney-General
We agree with the object which the hon. Member has in mind, but the Amendment seems to be unnecessary. The undertakers and the authority can already go to arbitration by virtue of Clause 30 (2), which provides for general arbitration. It is, in fact, the general arbitration Clause. I hope that in those circumstances the hon. Member will withdraw the Amendment.

§ Mr. Higgs
I beg to move, in page 14, line 41, at the end, to add: 1930 Provided also that the undertakers shall not be liable to make any payment under this subsection if they can prove that the subsidence or other deterioration was neither wholly nor substantially caused by the execution of works by them. The Amendment is designed to make it quite clear that the words of the two paragraphs (a) and (b) of the subsection do, in fact, govern what appears at the beginning of subsection (6), which provides at the beginning that where the works have been done in a street or on controlled land, and there is any subsidence or deterioration, the people who have carried out the work can be called upon to deal with the matter—any subsidence or deterioration due to anything at all. It did occur to me that it ought to be made clear that those doing the works in the street are not to be made responsible for some clear mischance. There might be a mining subsidence in the period of six months or some deterioration of some type altogether outside the scope of this Bill. Therefore, I propose that these words should be put in to make it clear that subsidence or deterioration of that sort which takes place has nothing to do with the works.

§ The Attorney-General
I think that the point which the hon. Member has in mind would be clear without the Amendment. The position under the Bill is that the undertakers are made insurers in respect of the work that they do, and if on that work there is any deterioration, then they are liable and cannot go into the question of how it arose. As the hon. Member for Lewisham, North (Sir A. Hudson) said just now, this Bill was the subject of a great deal of negotiation. There was give and take on both sides. In some matters the undertakers gained on the swings—as, for instance, by the limitation of liability to six months instead of to 12. In some matters they lost on the roundabouts, I dare say.
Under this Clause the position is that they are insurers of their work. If there is subsidence not connected with their work it is not their liability. If the subsidence or other deterioration is in their work, in that part of the street which they opened up themselves, they are not able to so into the cause of it, and are liable without the arbitrator or anyone else having to explore the sometimes very difficult questions of fact and law which might arise as to the exact causation.

§ Mr. Manningham-Buller
May I ask this question? Suppose the actual piece of street in which the undertakers have made an excavation subsequently suffers subsidence, either owing to mining or other operations, would the undertakers be relieved from responsibility? If that part of the street in which they have been working in fact sinks and they could show that it was due to some cause quite independent of their own activities, is it quite clear that the Bill is so drafted as to free them from all liability?

§ The Attorney-General
I think so. This subsidence or deterioration not of their own work would be of the street as a whole, and, as I understand the drafting of the Bill, they would not be liable in that case. I will look at that. If there appears to be doubt about it we will put an Amendment down.

§ Mr. Higgs
Upon that assurance I beg to ask leave to withdraw the Amendment.

§ Mr. Hay
A point arises out of subsection (3, b). Subsection (3) provides that the undertakers who are carrying out recommended works have to pay in respect of the work which a transport authority does for safeguarding the people who are engaged in carrying out the work—in other words, giving them adequate control of traffic, and so on. I am a little worried about the position if that arrangement is in force. The employee, shall we say, of the undertakers is injured through the negligence of someone connected with the transport authority. If the undertakers have paid for the transport authority to carry out the protection of their employees, against whom will the employee who is injured be able to go? Against his employers, the undertakers? Of will he have the right to go against the transport authority itself? It may seem only a small point, but I think it is one we should look at before the Clause passes from us.

§ The Attorney-General
That is a hypothetical question which it is difficult to answer with confidence because so much will depend on the actual circumstances, but if he is injured by the negligence 1932 of the servants or agents of the transport authority then his claim at common law would presumably be against them. The question the hon. Member has in mind is whether, being liable to pay on that claim, they could recover the cost of it from the employer, and the man who has been so injured—

§ Mr. Hay
It refers to securing safety.

§ The Attorney-General
Yes, I should like to look at that, but my impression is that they could not, and would be liable for their own negligence. I will look at that, certainly. I am much obliged.

§ Mr. Powell
There is, I think, a small defect in the drafting of this Clause which results in an unintended anomaly. One of the important innovations this Bill makes is to confer the "right of election," as it is called, upon the street authority, so that they have the overriding right, if they wish to do it, to carry out the reinstatement. Now by a curious quirk, which I think is not intended, should reinstatement prove defective, they have not got a similar right of election to make good the defective reinstatement, because under the last two lines of the Clause they are under an obligation to give the undertakers the prior chance to do the work. I suggest that it is a logical corollary to the right of election to reinstate that we should also give the street authority the right of election to reinstate the reinstatement should it prove defective. I should be glad if the Attorney-General would also look at that point.

§ The Attorney-General
Yes, certainly we will look at that.