Clause 8.—(REQUIREMENTS AS TO SAFETY, OBSTRUCTION, ETC., TO BE OBSERVED IN EXECUTION OF WORKS.) (Hansard, 17 October 1950)

§ Mr. Barnes
I beg to move, in page 15, line 5, after "access," to insert: and are not permitted to have access.

§ Mr. Manningham-Buller
This is an important Amendment which, I think, satisfactorily meets the point which we raised. Earlier this afternoon we discussed the definition of the word "street," and in the course of that discussion it became quite clear that this Bill applied to work done by undertakers on land where the public had no right of access—that is to say, on land where there was no public right of way—but that it applied to land where members of the public merely had a licence. It therefore became vitally important, in our opinion, that the requirements as to safety, obstruction, etc., which this Clause lays down for the execution of works should not be limited to those places where the public had a right of passage but should also extend to all those other places to which the public may quite lawfully be allowed to proceed. I am grateful to the right hon. Gentleman for meeting us on this important point in the way he has, and I hope it will prove to be entirely satisfactory.

§ Mr. Hay
There is one point arising on this Amendment which I think ought to be mentioned. Under the subsection which is being amended, there is a clear provision that the undertakers have to provide certain protection for the public as a whole, and subsection (3) makes contravention of that provision a criminal offence. There is the qualification, to which the Amendment is sought to be added, that if the place can be shown to be one to which the public have no right of access at all, then apparently the undertakers do not commit a criminal offence.
Now it will be rather hard to impose upon undertakers who may be brought before a court and charged with an offence under this Clause the obligation to prove that the particular place in which their operations were being conducted at the 1934 time when someone was injured was a place to which the public had no right of access and were "not permitted to have access," to use the words of the Amendment. I think that is something which the Attorney-General might look at before the next stage, because it will be a pretty heavy burden upon undertakers to have to show that a particular place where they were carrying out their work was not a place to which the public were permitted or had a right of access.

§ The Attorney-General
This is a very difficult point. I think it would be very hard to find any form of words which would not do an injustice to people who might be injured by the undertakers' works and at the same time not give to undertakers some ready-made excuse, so that they would not need to prove something in court. I will certainly consider the point. I am not anxious to impose criminal liabilities where criminal liabilities ought not to exist. Indeed, I should very much like to think that there were no criminal offences at all in our law; it would make the position of the Attorney-General very much easier.
I cannot quite see how we can meet the point the hon. Gentleman has made without doing injustice to people who, going where they are licensed or permitted to go, have an accident through some default of the undertaker. It would be even more difficult in many cases for them to prove the exact legal status of the land. I should have thought that the undertakers themselves would know the status of the land. After all, they are doing work on it, and presumably they would be in contact with the owner of the land and be able to call upon him in regard to the position of other members of the public on the land. I will look at the point, but I do not want to hold out any promise that I shall find a way of dealing with it.

§ Mr. Higgs
I beg to move, in page 15, line 22, after "street," to insert "or controlled land."
With your permission, Sir Charles, I think we might discuss at the same time the next Amendment, in line 26, after "street" to insert: or interference with the normal use of controlled land.

§ The Deputy-Chairman
I think that would be convenient.

§ Mr. Higgs
Undertakers are required to ensure, in the first place, that no greater width or length of any street than is reasonably necessary is open or broken up at any one time. The purpose of the proposed Amendment in line 22 is to extend that provision to controlled land. If it be that, in order to save breaking up a street, excavations are to take place either on the roadside or in the front gardens of houses adjoining the street, or public ground of any kind adjoining the street, surely the owners and occupiers of property on that other land have the right to ensure that there is no greater disturbance of their property than is reasonably necessary.
In the second place undertakers are required to ensure that there is no greater obstruction of traffic on any street than is reasonably necessary. If, in order to secure the free passage of traffic on the street, excavations are pushed on to private property or other land, it is surely not unreasonable to ask that there should be no more interference than is reasonably necessary with the normal use of that controlled land.

§ Mr. Barnes
When these Amendments appeared on the Order Paper, they were so obviously simple and fair that there was no difficulty in accepting them. I am prepared to agree to both Amendments. Obviously, if we lay down a condition with regard to highways, there is no point in penalising the owners of land and establishing a new set of conditions there.

Mr. Leslie Hale
The point which I am putting may not be a correct one, but I would like an assurance from the Attorney-General that he will give it some consideration. The Attorney-General, in reply to hon. Members opposite, said that it was necessary to have some protection for persons using a street if they had a right of access to it. 1936 Is he satisfied that the Clause gives that protection? Although it imposes a statutory duty, it does not appear to impose a statutory duty in favour of any particular class of persons or make it clear what class of persons is concerned.
He will be familiar with a case of breach of statutory duty recently, where it was decided that one may have a duty to someone, but may escape liability because that duty is not in favour of the particular person suing. He is no doubt familiar with the case which makes a landlord liable in respect of injury caused to a tenant but not to people who have lawful access to the premises but who are not using it in pursuance of any form of legal contract. I ask the Attorney-General, if he has any doubt about the matter, to consider it between now and the Report stage.

§ The Attorney-General
My hon. Friend has suggested that the Clause should make quite clear that a breach of statutory duty under it would give rise not only to a criminal penalty but to the possibility of an action for damages in the civil courts. I must tell him frankly that that is not a matter which is very clear. This is a very difficult question of law, and questions of policy are also involved. I will look at the point again, and I shall be prepared to give him an opinion to the best of my ability.

Mr. Hale
I am only asking about a case where, by reason of a breach of statutory duty, and not where there is a statutory duty, injury is caused.

§ The Attorney-General
I appreciate the point. It is a good one, and I will look into it.