§ 4.30 p.m.
§ Mr. James McInnes (Glasgow, Central)
I beg to move, in page 2, line 14, to leave out "is reasonable to see" and to insert:will ensure as far as it is reasonable to do so".The right hon. and learned Gentleman undertook, in Committee, to have a look at this question. My right hon. and hon. Friends and I feel that "ensure" or "secure" is more enforceable than "see". We regard "see" as inoperative, indefinite and in no way meeting the situation. What consideration has the right hon. and learned Gentleman given to this question in view of the undertaking he gave in Committee?
§ The Solicitor-General for Scotland (Mr. William Grant)
I can assure the hon. Member for Glasgow, Central (Mr. McInnes) that I have considered this matter with considerable care. Indeed, when it was considered in Committee, I promised to examine it further to see whether any better form of words could be devised. I was frank in Committee, saying that I was not entirely satisfied with "see", but that I had not at that stage been able to find a better formula.
After much cogitation I am still in that position. The difficulty is that "ensure"—which, with "secure", seems to be one of the only two possible alternatives—is much too strong. In law, the word "ensure" carries with it in a reparation action for damages the implication that there is absolute liability. It is to be found in the Factories Acts, the Coal Mines Acts, and so on, where the liability depends not on failure to take reasonable care, but on the mere breach of obligation, irrespective of the amount of care taken. That is much too high an obligation to place on the ordinary occupier or person in control of property, and it would go far beyond what has ever been the law in Scotland in the past.
We did not slavishly copy the English Act, because we originally started with 1313 a different Act. The word in the corresponding Clause in the English Act is "see". I do not say that that is by any means a conclusive reason for retaining "see". We must keep in mind that in the English Act of 1957 Parliament did for England what it now seeks to do for Scotland. If we have a different phrase in what I may call the basic provision of the two Acts, courts will be agile to say that if Parliament means one thing in the English Act it must mean something different in the Scottish Act.
I have tried to look up precedents. The only one I can find is a case dealing with the Building Societies Act, where the words are something like "take reasonable care to ensure". That is not unlike the phrase which the hon. Gentleman has in his Amendment. In that case, the judge said that he was much puzzled by the use of the word "ensure" in that context. I feel that judges would be somewhat puzzled if we used "ensure" here. Indeed, they might well have to address themselves to a different question from that to which we want them to address themselves. We want them to answer the question: has the defender in this case taken reasonable care or not?
If the Clause was amended in the way suggested, the courts would have to decide whether it was reasonable that there should be an absolute guarantee, which is a rather different thing. Accordingly, although with regret, I cannot conscientiously as a lawyer accept the Amendment. However, I assure him that I have made a search to see whether the phrase could be improved. I regret that I have not been successful.
§ Mr. James H. Hoy (Edinburgh, Leith)
I find the Solicitor-General's explanation very unsatisfactory indeed. All he said in his very long explanation was that he felt that he could not do this in a Scottish Bill because it might say something different from what was contained in its English counterpart. That is not an argument. I remember clearly that when we had the Food and Drugs (Scotland) Act—which was a separate Measure, distinct from its counterpart for England and Wales—we insisted in the Scottish Grand Committee that the businesses concerned should be made to register.
1314 That was a wide departure from what had taken place in the Measure as affecting England and Wales. The Secretary of State for Scotland at that time, who then represented the Moray and Nairn constituency, listened to the argument of Scottish Members. After a fairly long argument, which is not unknown in the Scottish Grand Committee, he came to the conclusion that all the arguments were in favour of this change in the legislation. As a result, the Scottish Measure differed very distinctly from that which affected England and Wales. The argument advanced by the Solicitor-General carries no substance.
§ The Solicitor-General for Scotland
Does the hon. Gentleman suggest that the law should be different in the two countries, or not?
§ Mr. Hoy
I do not know why the Solicitor-General asks me that. He knows that the law in Scotland is in many respects very different from that in England and Wales. For instance, Scottish courts can pronounce much wider judgments than courts in England and Wales. In England and Wales they can find the accused either guilty or not guilty. Courts in Scotland have that privilege, but, in addition, have the privilege of finding a verdict of not proven. The right hon. and learned Gentleman's argument carries no weight at all. If it proves anything, it proves to me that he has not directed his attention to what is intended by the Amendment.
By the Amendment we seek to provide that, as far as it is reasonable to do so, certain things will be ensured. I should not have thought that that was very difficult and that, on the whole, its language was very clear and distinct. It may be difficult for the courts to interpret, because so often we wrap Bills and Acts up in such verbiage that it is difficult for courts to make a clear statement of the position. However, that is no reason for rejecting the Amendment. If the right hon. and learned Gentleman intends to reject the Amendment, he should at least produce a much better argument than he has so far.
§ The Solicitor-General for Scotland
I am sorry if I gave the hon. Member the impression that I was merely following the English, and using that as an argument. I tried to make it clear that 1315 that was only one of several reasons. My main objection to the Amendment is the use of the word "ensure", particularly in connotation with the words "reasonable care". As I have said, the combination of "reasonable care" and "ensure" has already puzzled at least one judge, and I believe that if we used it in this Bill it would puzzle many more. Although that might be a good thing for the lawyers—and I speak as one—I am quite sure that it would not be a good thing for the ordinary litigant.
I am not suggesting that the law should be the same in Scotland as in England merely because the English have a particular law. The English, in 1957, altered their law to bring it into line with what Scots law used to be. Now we are making progress by taking a step backwards—if I may put it in that rather Irish way—and bringing Scottish law into line with that in England, which is in line with what the Scots law used to be. We are, therefore, back where we were in 1928, or thereabouts, when the law was in a much more satisfactory condition in this sphere than it is at present.
§ The Solicitor-General for Scotland
Merely because I thought that the result of this Amendment would be to make the law different whereas, in this case, we really want to make it the same, because England has already adopted what was the law of Scotland.
§ Amendment negatived.
§ Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, signified.]
§ Motion made, and Question proposed, That the Bill be now read the Third time.
§ 4.41 p.m.
§ Mr. McInnes
I am dissatisfied with Clause 2 as it now stands, and I am surprised that the Solicitor-General for Scotland should have asked my hon. Friend the Member for Edinburgh, Leith (Mr. Hoy) whether he desired the law in Scotland and that in England to be different. Perhaps I may remind the 1316 right hon. and learned Gentleman of what was said by his hon. Friend the Joint Under-Secretary of State when we were discussing the principle of the Bill. His hon. Friend then said:I shall shortly come to the reason"—for the alteration in the law—but I hardly think I need apologise in this Committee for the difference. Indeed, the Committee recommended that legislation should be drafted independently of any English Statute dealing with comparable subjects."—[OFFICIAL REPORT, Scottish Grand Committee, 1st December, 1959; c. 6.]The Solicitor-General for Scotland recognised that the law on this subject was different in the two countries. We may be taking, as he said, a step backwards, but the fact remains that the very reason for the introduction of this Measure was that there was a difference in the law in the two countries. I do not want to go back into all the questions involved in that difference—licensee, trespass, invitee, and the rest—but, on this issue, the law in Scotland and in England is entirely different.
The right hon. and learned Gentleman is aware that we on this side were somewhat concerned in Committee about this word "see". The real meaning of the word is "to perceive mentally", because the verb "see" is naturally associated with vision. Therefore, a reading of the Clause as it stands would be "to perceive mentally". How can an obligation rest on an individual when the basis of that obligation is to perceive mentally?
Frankly, I am disappointed by the inability of the Solicitor-General for Scotland to find an alternative word. I thought that we had gone a long way to meet the situation by the words in the Amendment. Originally, we put down the word "ensure" in the existing context of the Bill, but we altered and enlarged the Amendment to leave out the words "is reasonable to see," and insert:will ensure as far as it is reasonable to do so.I cannot appreciate the right hon. and learned Gentleman's observation that this was far too high an obligation to put on the occupier of property. Why is it far too high an obligation? Surely the occupier, as well as the owner, has an obligation, and we want to see it operating equally in both directions. As 1317 I say, we are disappointed that he has not found it possible to accommodate us on this Amendment. At the moment, I feel that he has been largely guided by the fact that the word "see" appears in the English Measure, and, to that extent, the Solicitor-General for Scotland does not desire that the legal terminology of the Scottish Measure could be, or should be in any way different.
I do not accept that. The very basis of this Bill is that the Scottish legal terminology was not accepted in the English Measure. There is the principle of culpa. It was merely a question of legal terminology that compelled the Government to introduce this Measure, and now the right hon. and learned Gentleman argues that it would be wrong to alter the word "see" because that word is now in the English law dealing with occupiers' liability. I do not think that his attitude is logical, and I can only repeat that I am exceedingly sorry that he did not find it possible to accept our Amendment.
§ 4.45 p.m.
§ Mr. E. G. Willis (Edinburgh, East)
First, Mr. Deputy-Speaker, I must apologise for not having been here when the debate opened. The Bill has come before the House rather earlier than I thought that it would, and I was at another meeting.
We have now reached the final stages of a Bill that implements the first Report of the Law Reform Committee. In passing, I must say that it has taken the Government a long time to implement one Report of that Committee. The Law Reform Committee has done a considerable amount of work up to now, and it is hardly paying to it the respect it deserves when we have to wait so long before its Reports are implemented. As a result of moves from this side, another of the Law Reform Committee's Reports has been implemented, and we hope that the others that have been produced will be given effect to much more quickly than has been the case here.
The Measure abolishes the doctrine of the three categories of invitees, licensees and trespassers which was imposed on Scottish law by the House of Lords decision in 1929. It is interesting to note that, whilst the right hon. and learned Gentleman was anxious to stick to the English provision in respect of the word "see", this Measure still differs from 1318 the English one in that, as I understand it, the latter still recognises the category of trespassers. In this Bill we do not recognise the category of trespassers. The Bill wipes out the three categories and returns to the ordinary common law principal of culpa, which is in accordance with the recommendation of the Law Reform Committee.
On this side of the House we still feel that the Bill does not go far enough. It does not carry out all that the Law Reform Committee recommended. It does not deal with the problem of the dangers arising from animals—
§ Mr. Deputy-Speaker (Sir Gordon Touche)
I am sorry to interrupt the hon. Member, but, of counrse, on Third Reading we are only concerned with what is in the Bill and not with what is left out of the Bill.
§ Mr. Willis
I am grateful to you for your guidance, Mr. Deputy-Speaker. I was making only a passing reference to the fact that the Bill did not include what the Law Reform Committee had recommended. I should like to ask whether the subjects which it recommended have now been remitted for further consideration to the Committee.
During the proceedings on the Bill, the Solicitor-General for Scotland promised to look at a number of matters in connection with it. From the absence of any Amendments on Report, it would appear that the result of his deliberations were not very fruitful. They certainly did not give birth to any Amendments on Report.
On one matter, which I raised during the Committee stage on two occasions, I think that something should be said before we finally leave the Bill. The right hon. and learned Gentleman will remember that in Committee I raised the question of the liability of the occupier under the Bill when the owner of the property had disappeared. This is very common in Scotland. It is something about which most local authority representatives know, because it is their experience, when they take over houses or properties, that a number of the owners have disappeared. It is also known that in that event certain liabilities of the owner have, in fact, fallen upon the occupier.
1319 The Solicitor-General for Scotland said during the Report stage that he had listened to the arguments which were made and that he did not think that any of the liabilities of the owner under the Bill would be transferred to the occupier in the event of the owner disappearing. He said that, in view of the discussions which had taken place, he would certainly confirm whether or no this was the position under the Bill.
This is a very important matter, particularly in respect of a great deal of the very old property, some of which has been almost condemned, that exists in the large cities. There is considerable concern as to what exactly are the responsibilities of the occupiers in respect of this property, and I think that we need a categorical assurance from the right hon. and learned Gentleman that as a result of passing the Bill we shall not, in fact, pass any of the obligations under it on to the occupier in the event of the owner disappearing.
It would be out of order to raise some of the other matters which we dealt with in Committee, because I appreciate your Ruling, Mr. Deputy-Speaker, that we must deal with what is in the Bill. On this side we welcome the Bill so far as it goes. We hope that the Government will give some attention at an early stage to the matters that have arisen during the discussion of the Bill, particularly the recommendations of the Law Reform Committee concerning the defining of the responsibility of occupiers in respect—I think the right hon. and learned Gentleman knows to what I am referring—of dangerous agencies and animals. We hope that he will at least do that much more rapidly than the Government have attended to the matters concerned with in the Bill.
§ 4.52 p.m.
§ The Solicitor-General for Scotland
I am grateful to the hon. Member for Edinburgh, East (Mr. Willis) for at least giving a qualified welcome to the Bill. I gather that he is in agreement with most of what is in it, although he would like to see more in it.
I can assure him that we shall keep in mind the points which he has raised. I cannot tell him offhand whether the question of liabilities for injuries caused 1320 by animals has yet been referred to the Law Reform Committee but, if not, it is on its way. I will find out and let him know the exact position.
The hon. Member for Glasgow, Central (Mr. McInnes) complained, once again, that I had been following the English. That is not so. As the hon. Gentleman the Member for Edinburgh, East pointed out, we have differed from the English in as much as we have washed out trespassers and they are included in the ordinary common ruck to whom reasonable care has to be shown. So we have left the English behind on that.
On the question of laying down the standard of care, we have taken the broad view that it is better—and the Law Reform Committee recommends it—still to lay down that a reasonable standard of care must be observed rather than go into detail of examples of the type of matters that must be taken into consideration. That, again, we did deliberately and differently from the English. So far as the basic standard of scare is concerned—that is, the question of culpa—the English did just what we are doing. That is to say, in 1957 they adopted what I would call the Scottish doctrine of culpa as the basic principle behind the Bill and we are doing it in this Bill, not because the English did it but because that was the law of Scotland before 1928 and it worked extremely well.
As to the use of the word "see", it is not because the English use it that we are using it here but, first, because I cannot think of a better word, and I have not been able to find anyone who can, and also because the word "ensure", even if it is used with the words "reasonable care" attached to it, is a very dangerous word to use and would, in all probability, set a higher standard than the normal "culpa" standard of the common law, that is to say, it would impose on an occupier a higher standard than the ordinary standard of taking reasonable care in the circumstances.
I referred to the English Act because the courts would be much more likely to take the view, I think, that the word "ensure" in a Scottish Act meant a higher standard of obligation if, in similar circumstances in a similar Section in an English Statute which admittedly incorporated Scots law, a different and 1321 less strong expression was used. That was the reason. It was not that I wanted the law to be the same in the two countries but merely because it would, I believe, lead to confusion if a different phrase were used.
Quite apart from that, as I pointed out before the hon. Member for Edinburgh, East came in, in the only case I can trace where the word "ensure" was used along with the words "with reasonable care", the judge confessed that he was puzzled by the word "ensure". As far as I can understand it, he gave it a meaning, as it were midway between the normal standard and the insurance standard, which none of us wants to do. I can assure the hon. Gentleman that we have tried to meet him on this point. I am only sorry that we have been unable to do so.
I have made inquiries about the position of occupiers when the owners have disappeared. At any rate, so far as I can discover, there have been no cases in Edinburgh or Glasgow, for example, where the local authorities have tried to foist the obligations of the missing landlord on to the occupier who is left in occupation. Equally, the Bill does not transfer what I might call the existing liabilities of the landlord on to the tenant in the event of the landlord disappearing.
Let us suppose, under the present law and under the Bill, that the landlord of a tenement house is missing. There is a hole in the kitchen floor. That is 1322 fundamentally the landlord's responsibility, but if the tenant invites a friend in, does not put on the light and does not give him any warning, and the guest walks in and goes through the hole, there would be a very strong case against the tenant. This is not because he failed to repair the hole. It is because he failed to give reasonable warning and failed to give the guest an opportunity of seeing where he was going. The Bill does not in any way transfer liabilities from the missing landlord to the unfortunate occupier who is left stranded in the tenement house.
§ Mr. McInnes
I know the legal difficulties, but I take it that that still means that the owner of the property is responsible.
§ The Solicitor-General for Scotland
Yes. I think that I said in Committee that, provided he remains the owner, that is so. We still have a problem if he transfers the property to a man of straw or to a company with a paid up capital of £1. In that case his liability ceases as from the date of transfer of ownership. But that is a matter outwith the scope of the Bill, and I know the problems which arise.
§ I commend the Bill to the House because, whether early or late, it is an important Measure which will improve the law of Scotland.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.