§ Order for Second Reading read.
§ 2.56 p.m.
§ Mr. Arthur Probert (Aberdare)
I beg to move, That the Bill be now read a Second time.
Before I talk about the Bill, I should like to express my congratulations to the hon. Member for the City of Chester (Mr. Temple) on the Second Reading of his Bill. I hope that I shall be able to emulate the hon. Member in having the same success. I do not, however, hope to emulate him in the able and diligent way in which he presented his Bill. I can say from first-hand experience of the hon. Member that what the Parliamentary Secretary said in his favour was in no way exaggerated.
My Bill is much more simple, although perhaps in a legal sense—I speak as a layman—it may be a little more intricate. Its purpose is to give effect to one of the recommendations contained in the Report of the Committee on the Law of Civil Liability for Damage done by Animals. That Report was presented to Parliament by the Lord Chancellor in January, 1953. I have been impressed by the fact that this branch of the law relating to animals has come under the most severe judicial criticism. That is evident in the Report itself. In view of all the conversations which I have had with my legal friends, I am justified in saying that those are apt words concerning this branch of the law.
I am not a lawyer and, therefore, I am certainly not going to enter into any discussion of legal matters, especially, as I say, matters connected with so abstruse a section of the law as this, but as a layman I think I can put the matter simply by showing the existing anomaly in the law as it now stands, that if an animal breaks through a gap in a hedge on to the land of its owner's neighbour and consumes a few cabbages, then the owner of the animal is liable to his neighbour for the damage incurred, but if through a similar gap in the hedge the animal strays on to a road and causes an accident whereby a person is injured, the owner of the animal is under no liability at all.
897 Whatever quarrels anyone may have with my Bill, all in the House will agree, I think, that the position as it now stands as I have illustrated it, is certainly ridiculous, and in this twentieth century, when we are finding our roads increasingly cluttered with traffic, the time has come when we must, by some means or another, put an end to this anomaly.
The Committee which inquired into this, amongst other matters, recommended that there should be a duty to take reasonable care to see that animals do not escape on to the highway and cause damage. I say again that the Bill does not impose an absolute liability on the owners of animals or cattle but merely one to take reasonable care.
Clause 1 prescribes the duty of care and provides that the owner of an animal should be under a duty to take such care as is reasonable in all the circumstances to ensure that an animal does not stray on to the highway, and it further provides that he shall take all reasonable care to ensure that when it is on the highway it does not cause damage to persons or property.
Clause 2 prescribes the degree of care which should be taken and removes any presumption that an animal may be allowed on a highway merely because its owner has no prior knowledge that it is likely to cause damage. The measurement of degree of care is determined by the rules of the common law relating to negligence.
Clause 3 prescribes the liability for injury and damage, and it is the kernel of the Bill. The owner of the animal will be liable for any damage caused while the animal is on the highway if he has not exercised reasonable—I repeat, reasonable—care, but he will not be responsible if there is any element of contributory negligence by the person claiming to be injured or damaged.
Clause 4, "Saving for commons", deals with the question of common land and it exempts the owner of an animal which strays on a highway from a common. I think a word of explanation of this is necessary because this exempting Clause does include quite a large mileage of roads in the United Kingdom. I am aware, as is the House, that the Royal Commission reported in 1958 and 898 made a large number of recommendations on this matter. This, I appreciate, is a very difficult matter, and the fact that the Royal Commission was appointed to deal with it emphasises that. I understand that consultations have been taking place between Ministers and interested persons and organisations. I do not know whether those consultations have finished, but no doubt the Government will express their views on the matter in the not too distant future. I think the House will agree with me that I am well advised, at the present moment at least, to exclude from the provisions of the Bill highways passing through or directly beside common land, and to await the Government's views on this matter.
I think I should say very briefly why I was impelled to bring this Bill forward. It certainly was not because of the recommendations in the Report of the Committee on the Law of Civil Liability for Damage done by Animals, because I was not aware of that Report when I first considered this matter. For many years now people in my constituency have been troubled by damage caused—by straying sheep, in particular. This is a trouble, of course, in most parts of South Wales, but I have been impressed by the large number of letters I have received from all parts of the United Kingdom on this matter, and I have not received a single letter which has not wished me every success with the objects of my Bill, and I want to take this opportunity of expressing my indebtedness to all the correspondents who have written to me from all over the United Kingdom on this matter. It is quite impossible to acknowledge all those letters otherwise.
Suffice it to say that the matter is a serious one, and while I cannot say it is general, I can certainly say that in a sporadic manner it is a serious matter for many parts of the United Kingdom.
The problem in South Wales has been particularly serious for many years. Indeed, my hon. Friend the Member for Abertillery (Mr. Ll. Williams) and I had discussions with the then Minister of Agriculture a year or so ago about this very matter, and in fairness to the Minister I must say that he was very sympathetic about the proposals which we put forward and was fully acquainted with the problems.
899 I can appreciate why nothing has been done up to the present, but a South Wales Sheep Trespass Committee was appointed in 1956 by the National Council for Domestic Food Production. Its terms of reference were that it was to visit areas in South Wales affected by problems of sheep trespass on allotments and gardens and to examine and advise on these problems and to take suitable steps calculated to promote local co-operation towards a solution——
§ Notice taken that 40 Members were not present;
§ House counted, and, 40 Members being present—
§ Mr. Probert
I was dealing when we were interrupted with the terms of reference of the South Wales Sheep Trespass Committee. That Committee reported and made recommendations which I shall not recite now, but I was struck by the evidence in that report of the sincere desire of all concerned, the farmers, allotment owners and all local authorities to find a solution to this serious problem. I was much impressed by the remarks of some hon. Members opposite when we were discussing the then Highways (Miscellaneous Provisions) Bill on 24th February last. I should like to make one or two quotations from the debate on that occasion.
The hon. Member for Aberdeenshire, East (Mr. Wolrige-Gordon), interrupting one of his hon. Friends, said:Would my hon. Friend also bear in mind that accidents acre also caused by sheep straying on the highway especially in highland areas where the road is frequently the only dry area the sheep can lie down on to sleep? The result is that many sheep are to be found at night on these roads, especially in Scotland."—[OFFICIAL REPORT, 24th February, 1961; Vol. 635, c. 1113.]More important in this connection were the remarks of the hon. Member for Lewes (Sir T. Beamish), who said:I certainly support some of the things which my hon. Friend the Member for Exeter (Mr. Dudley Williams) said—everything he said on my Bill and some of the things he said on this Bill. Other hon. Members have referred to the fact that there is no provision in the Bill to deal with the problem of livestock which stray on the highway. There is in existence a Private Bill, sponsored by the R.A.C. and the A.A., which I looked at, the effect of which would be to make sure that if it could be proved in court that a property 900 owner had not taken reasonable care to fence his property, for example, or a gate had carelessly been left open and cows had strayed dangerously on to the highway, then someone who had an accident and whose car was damaged as a consequence could make a claim against the owner of the livestock."—[OFFICIAL REPORT, 24th February 1961; Vol. 635, c. 1127.]Then the hon. and gallant Gentleman went on to describe a personal experience of his, with which I will not bore the House now but which I felt at the time was very graphic indeed. These remarks come from hon. Gentlemen opposite.
I should like also to quote from the OFFICIAL REPORT of 20th February, 1961. This relates to the case of George Elwell. A Petition was presented by my right hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. A. Henderson). He said:Mr. Speaker, with your permission and that of the House, I desire to present a Petition signed by George Elwell, of 32, Laurel Road, in the Borough of Tipton, Staffordshire, supported by 3,070 residents of the Borough of Tipton, referring to the need for amendment of the Highways Act, 1859, Section 135, which provides for a fine not exceeding 5s. in respect of each animal straying on a highway. The Petition calls attention to the fact that recently the son of George Elwell, aged 21 years, died in Dudley Guest Hospital on 25th November, 1960, after a motor cycle he was riding was in collision with a stray horse in Central Avenue, Tipton. Road accidents caused by stray horses are constantly being reported. Your Petitioner considers that a penalty of 5s. is totally inadequate in modern conditions. Wherefore, your Petitioner humbly prays that this House will introduce legislation to increase such penalties.And your Petitioner, as in duty bound, will ever pray, etc."—[OFFICIAL REPORT, 20th February, 1961; Vol. 635, c. 1–2.]
These references will indicate how serious the matter is. In my own file I have a large number of court cases given to me by the Automobile Association and the R.A.C., and all these tell the same story.
In conclusion, I should like to refer to the case which really impelled me to try to bring forward a Measure which would put an end to this anomaly. I have here a letter from a constituent of mine which appeared in my local press. It says:Sir, may I through your columns expose one of the death traps on the roads in our district today; Sheep? Coming home from work at 10.10 p.m. on June 23rd, my husband had the experience of having one jump off a grass verge on to the front wheel of his motor 901 cycle, taking him and the cycle over to crash on the road. He was taken to hospital and treated and next day after X-rays, was found to have badly torn muscles of the right arm from which he suffered great pain. Through this accident, which also upset his chest—he had had to finish in the mines because of dust—he has lost three weeks' work all but three days.After taking into consideration our National Insurance, we are at a loss of £50 in wages, besides a new helmet (cracked down the side), his riding coat ripped to pieces on the shoulders and his riding leggings torn. I applied to the local farmer to help us pay for some of the damage. He referred the matter to his Farmers' Union office at Cardiff. I received a letter from them saying there was no liability on the farmer. So I went to Cardiff immediately, and was told that even if a person is killed through a sheep no one can claim a penny. As my husband's motor cycle was badly damaged, he also now has lost his no claim bonus, which will affect him for a few years. As this is so unfair, is there anyone in authority who will come with me to interview our Member of Parliament to see if we can have this unfair situation changed, and so prevent it from happening to anyone else in the future?The lady came to see me and expressed gratitude for the sympathy which she had received from the farmer, and, indeed, the National Farmers' Union. But I put it to the House that sympathy is not enough. I appreciate the legal position of the farmer and that of the Union which represented him. In parenthesis, I would express my sincere appreciation to the representatives of the Glamorgan County Branch of the National Farmers' Union. They did at least grant me the courtesy of coming to discuss the matter, and I learnt much about many of the difficulties which farmers have in this connection. I express my appreciation to them for the courtesy they showed me. We were of one mind that something should be done.
The Bill would have two important side effects. First, there would be the promotion of greater safety on the roads—and everyone in the House desires that. Secondly, there would be a diminution, however slight, of cruelty and unnecessary suffering to animals left badly injured on the roads. It is not very pleasant to see animals like that. If the Bill does that only, it will be worth while. In bringing it forward and in asking for a Second Reading for it, I will have redeemed a pledge to my constituent, given when she and her husband came to see me.
§ 3.16 p.m.
§ Sir Harry Legge-Bourke (Isle of Ely)
All of us sympathise with the hon. Member for Aberdare (Mr. Probert) in his desire to reduce the risk of road accidents caused by animals, and we also congratulate him on his luck in the Ballot and on choosing a subject which, obviously, has a very considerable constituency interest for him. If I make some criticism of the Bill, I hope that he will not assume that I attribute to him other than the highest of motives in bringing it forward.
All of us have had experiences of the sort of problem which he has described. There is one aspect to which he did not, perhaps, pay sufficient regard. How often, when an animal is involved in a collision with a vehicle, should the driver say to himself, "Was it the animal's fault—or mine?" A great many of us who enjoy travel in the Highlands—and in South Wales the conditions are much the same—know very well that it is an accepted hazard of driving over the roads in such areas that animals may stray upon them.
§ Mr. Probert
If the hon. Member will look at the HANSARD references which I mentioned he will find that his hon. Friend the Member for Lewes (Sir T. Beamish) referred to a case in which he actually stopped his car, but the animal ran into it and caused severe damage.
§ Sir H. Legge-Bourke
I am quite prepared to believe that there may be incidents of that kind, but we should all face up to the fact that, whatever legislation we pass, there are always bound to be borderline cases which, perhaps, we should not seek to deal with if, in doing so, we make the law untypical of British legislation.
In dealing with human beings on a social level, we never can cover all the hard cases. It would be very unwise if the hon. Member tried to do so in this Bill. We want to decide whether the existing legislation is wrong or inadequate. If it is adequate, we must consider whether its penalties bear some relation to the present value of money. The hon. Member has a very big case for seeking to raise the level of the penalty. I do not want to sound too Biblical, but if anybody allows his horse, mare, gelding, bull, ox, cow, heifer, steer, calf, 903 mule, ass, sheep, lamb, goat, kid or swine to wander on the road, then he is running the risk of paying a penalty of 5s. a head, or 30s. in all.
A late brother-in-law of mine was once driving down to Kent late at night. He noticed that there was a red light swinging in front of his car. As he approached the light he found that he was going over some rather big bumps. It was not until he had overtaken it that he discovered what the red light was attached to—it happened to be an elephant, and the swinging light was coming from a red lamp tied on the end of the elephant's tail. I leave it to hon. Members to imagine what the bumps were.
§ Mr. Dudley Williams (Exeter)
My hon. Friend has referred to the question of penalties. I can see no reference to that in the Bill. Will he please explain?
§ Sir H. Legge-Bourke
That is the whole point. If my hon. Friend will allow me, I will come to that.
I was saying to the hon. Member for Aberdare that if he had brought forward a Bill seeking to increase the penalties, or to increase the number of animals which would be covered under the definition of animals which if they stray on the highway, render the owner liable to a fine, I should have considerable sympathy with him; although I am doubtful whether we need include elephants. But by this Bill the hon. Member has done something far more fundamental, which I am sure he meant to do, and I respect him for his intention. He has changed the onus of responsibility regarding proof. If I understand the Bill aright, its provisions would oblige the owner of an animal to prove that he did not act negligently.
Under the existing Statutes—I hope that I am right about this; Halsbury is my authority—negligence has to be proved by the complainant. I think that in this country there is only one situation in which one has to proves one's innocence. If one is caught poaching, if one is discovered with a pheasant in one's pocket, it is presumed that the pheasant has been poached unless one can prove otherwise. I believe I am right in saying that that is one of the very few instances where a person must prove his innocence rather than the prosecution prove his guilt.
§ Mr. Probert
I am sure that the hon. Member will appreciate that I am in some difficulty, since I am not a lawyer. But I am advised by my legal adviser that the Bill emphasises that no liability is imposed on the owner of cattle, but merely the need to take reasonable care. The onus of proof is placed fairly and squarely on the person making a complaint. That is how I am advised by some eminent lawyers on this matter.
Major W. Hicks Beach (Cheltenham)
Perhaps I can help in this matter as I happen to be a lawyer. I regret that I profoundly disagree with the legal advice given to the hon. Member for Aberdare (Mr. Probert), and that is why I am worried about the Bill. I think my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke) is on an extremely good point. As I understand the position, this would entirely change the whole principle of proof, and that certainly shocks me.
§ Sir H. Legge-Bourke
I am grateful for the support of my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach). I am not a lawyer, any more than the hon. Member for Aberdare, but I have always understood that Halsbury was a reliable authority.
It seems to me that Clause 1 (1) of the Bill places on the owner of an animal a duty which is not at present placed upon him and that that subsection alone alters the whole emphasis of the burden of proof. It is this which concerns me most. I have always disliked provisions which assume a person guilty and make him prove his innocence. I see that the hon. Member for Aberdare nods assent to that. If he agrees with me, and if his Bill is given a Second Reading, I hope that he will check very carefully whether what he intends to happen will, in fact, happen when the Bill becomes law.
We must look carefully at the whole question of motoring in the countryside before we change the law. In my opinion, motorists have no right to go careering through the countryside without regard to other users of the road, whether they be animals or humans. Many countrymen would greatly appreciate anything likely to restrain the speed with which motorists pass through their districts. It is probable that the majority of offences of this kind which have arisen 905 in the past have been caused by strangers travelling through the district rather too fast. Anyone who lives in a district in which animals are known to stray tends to go rather more carefully.
Where there is a likelihood of animals straying—other than those which have broken through their fences—it seems to me that there is a clear duty on highway authorities to ensure that notices are put up, warning motorists. It is slowly getting into the heads of the highway authorities that it is no good merely putting a notice at each end of such an area. As is done with signs on clearways, it is necessary to put these signs all the way through the area. I refer to such signs as "Beware of Sheep".
I am by no means satisfied that many of the accidents which have happened—accidents of the type which the hon. Member rightly wishes to prevent—have not been caused by a lack of adequate signs on the roads concerned. My general approach to legislation is that of Lord Melbourne—let us leave things alone unless there is a very good reason to change the law. I am not sure that there is not great scope for avoiding accidents of this kind without seeking to introduce a radical reform of the kind which the hon. Member has in mind in the Bill.
I assume that the Bill is also intended to cover towns. There are many local enactments which govern what happens in that respect. If some of the Private Bills with which I have had to deal concerning London boroughs are any guide, those authorities have considerable powers over what happens in their streets. I imagine that the Bill covers streets as well as roads. Once we accept that, we are up against the question of dealing with domesticated animals, such as dogs and cats. To what extent has the hon. Member considered that aspect?
§ Mr. Probert
There is a provision in the Road Traffic Act, 1956, which empowers local authorities to make orders designating certain areas in which it is an offence to let a dog run loose. I understand that about 140 authorities have adopted the provisions of that Act. I agree with the hon. Member that many more authorities should do so, but the number is increasing.
§ Sir H. Legge-Bourke
I thank the hon. Member for confirming what I had in mind, but it surely begs the whole question—the suggestion that because certain things have to be done in the bigger towns, we must, therefore, do the same in the countryside. I dispute that straight away. We have to approach these matters differently in the countryside and in highly congested areas, where there is heavy and dense traffic and where there are many pedestrians on the footpaths and trying to cross the streets. The hon. Member has confirmed what I suspected and what I hoped that he would be able to deny, namely, that his Bill will affect built-up areas and rural areas in much the same way.
Footpaths have to be considered. Local authorities in rural areas are beginning to think twice about whether it is worth while constructing footpaths, judging by the number of people who use them and the rapidity with which they are overgrown by grass. I suppose that the definition of highway includes a footpath, but I do not know.
§ Mr. Dudley Williams
The question of what is a highway is covered by Clause 5, which says:'Highway' means any highway over which the public have a right of way for the passage of vehicles.That would not cover footpaths.
§ Sir H. Legge-Bourke
I am in some difficulty in not being a lawyer, because I never know whether a baby carriage counts as a vehicle, but I have seen many people riding bicycles on footpaths, whether they are supposed to do so or not. I do not know whether they would be covered by the Bill. A bull can attack a perambulator just as it can attack a motor car, and perhaps it can do more damage to a perambulator and what is inside it. I am concerned about the Bill because I think that it will cause trouble to those who will feel themselves defenceless to avoid what will become a liability under the Bill.
The vast majority of the cases of which the hon. Member is anxious to avoid a repetition are cases where the driver of the vehicle has been careless. People who come from the towns into the countryside must be made to realise that they cannot behave in the countryside as though they were driving all the way along the M1.
907 This problem is causing great concern to the farming community. When I had a Jersey herd of my own, I took great care that my animals did not stray. Any farmer who owns valuable cattle does his best to avoid allowing them to stray. However, if it is becoming an increasing practice of those rearing sheep in the hon. Member's constituency to allow those sheep to wander on the highway, what is the cause? Is there less care than there used to be in the management of sheep, or is someone pulling down fences?
§ Mr. Probert
The hon. Member is now criticising my constituency. I have received correspondence from farmers all over the United Kingdom, and especially from Derbyshire, where the problem is severe. Most farmers are dealing with this problem very responsibly and in my discussions with them I have found that they are concerned about irresponsible farmers. Silly as it sounds, the problem of straying sheep is caused by those who have sheep but no land on which to graze them.
§ Sir H. Legge-Bourke
If farmers in the hon. Member's constituency or anywhere else are taking advantage of the sheep subsidies, and so on, without adequate land on which to rear the sheep, this is a curious way of putting that situation right. I should have thought it obvious that they were indulging in very bad husbandry.
It may be that, down the years, in many districts it has been the custom for local farmers and smallholders to graze their animals along the sides of the road. One of the most regrettable things to be seen every summer is the appalling waste of good herbage on either side of roads. I can remember, when I was a boy, seeing hundreds of animals each week on either side of the road, always tended by a man or boy to see that they did not stray. I appreciate that there are some roads where that would be undesirable because of the density of traffic, but I am not sure whether we should be right to try to make this an illegal operation, and I feel that that might be the effect of the Bill.
We are being encouraged to produce milk more economically, and greater quantities of beef, and I should have thought there were very great reserves 908 of herbage grass on either side of country roads which could make a big contribution to this. It might be better to cut the herbage and dry it, but that is not everybody's opinion.
These are the points which worry me. I am not saying that any one of them is decisive, but, added up, they reinforce my dislike of what I regard as the most obnoxious part of the Bill, namely, the shifting of the burden of proof. That is the most pernicious part of the Bill. It is an un-English way of legislating. I do not intend any offence to Wales by saying that, but I do not like it, and I must vote against the Bill.
§ 3.36 p.m.
§ Mr. Dudley Williams (Exeter)
After the speech of my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke), I would have thought it unnecessary for anyone else to intervene. My hon. Friend was so moving that I thought the hon. Member for Aberdare (Mr. Probert) might decide to withdraw the Bill, especially when, as my hon. Friend said how concerned he was, the right hon. Member for South Shields (Mr. Ede) was quite overcome with emotion. He could not bear to see the way in which my hon. Friend was being upset.
§ Mr. Ede (South Shields)
The hon. Member for the Isle of Ely (Sir H. Legge-Bourke) said that he was very worried about it, and I thought that he should consult a psychiatrist.
§ Mr. Williams
I would not go as far as that. I can understand my hon. Friend's being so worried.
Clause 1 places the onus upon the owner of an animal to ensure that in all reasonable circumstances the animal shall not be able to stray on the highway. The language is not very precise. It does not make clear what is the exact burden or duty laid upon the owner. An owner may decide to keep an animal in a field. It may be the sort of animal which is quite capable of being kept in a field, such as a horse, an ass or a mule—all of which are referred to in the definition of the word "animals" in Clause 5.
I notice that the definition does not include poultry. I am sorry about that, because poultry are sometimes extremely worrying to the drivers of 909 motor vehicles. They are often allowed to run wild by their owners, and they cause serious danger to motor traffic when they suddenly run across the road. The most extraordinary thing is that the moment a person drives along in a motor car, if poultry are on one side of the road they invariably decide to transfer their attention to the other side. Nevertheless, however hard I try, I never seem able to succeed in getting a free meal as a result of my motor car hitting them.
Clause 1 frightens me. The owner of an animal may keep it in a field, and may take all the precautions he considers to be reasonable to ensure that it cannot stray on to the highway. He may think it reasonable to have a gate with a simple latch. We cannot be certain that this will be accepted by the courts as reasonable. All of us who live in the country know that the ordinary countryman is usually very careful about closing gates, but he cannot always depend on people's good sense. Very often people who come into the country, although they have no viciousness in their nature, do not understand the importance of keeping gates shut. They leave gates unlatched after they have been into fields to pick a few buttercups and, as a result, animals get on to the highway.
Are we certain that in those circumstances the courts will maintain that reasonable care has been exercised by the owner of an animal getting on to the highway? How can we be certain that the courts will not hold that the gate should have been padlocked so that nobody could have opened it? There should be a far more precise definition of what is reasonable care by the owner of an animal which is kept in a field.
"Animals" is defined in Clause 5, the rubric of which is "interpretation". The definition includes swine. What will be regarded as the correct type of pigsty in which to keep a pig in order to be certain that the owner of an animal has kept within the confines of the Bill? There is no clear definition.
As my hon. Friend the Member for the Isle of Ely made clear in his very constructive speech, the Bill would change the whole basis of the law of this country. It would make it the responsibility 910 of the unfortunate owner of an animal to prove his innocence in the courts if he was to avoid the penalties which might fall upon him if an animal of his did any damage to anybody else. That is not the right way to go about things. The onus of proof should lie upon the person bringing the charge. There is no definition of the reasonable care which should be taken to ensure that an animal does not cause injury.
I take the view that animals have a right to be on the road.
Major Hicks Beach
I think that my hon. Friend has hit upon the most unfortunate aspect of the Bill, but I want to make quite certain that I have understood him right. As I understand his argument, the Bill would entirely change the burden of proof and thus alter the whole concept of British justice. I want to be clear that I have understood my hon. Friend correctly.
§ Mr. Williams
That is my point, and I am grateful to my hon. and gallant Friend for making it clear. My hon. Friend the Member for the Isle of Ely also pointed this out.
In country districts farm animals are often driven on the road. This is an aspect of our country activities which will be severely embarrassed if the Bill receives a Second Reading this afternoon and if it by any chance gets through Standing Committee C, which I strongly suspect that it will not, even if it ever gets up there. If the Bill becomes law it will cause severe embarrassment in the country. We all know that at about five o'clock in the evening the cows are being driven in to be milked.
§ Mr. Williams
It depends on the time of the year. At this time of the year the cows are being driven in to be milked at five o'clock in the evening. At that time, many people are trying to get home from work. If this Bill gets through, what will happen? Will the same kindness be shown to animals as is shown in the country today? I think not. People will say, "These animals must be got out of the way. The farmer is not taking sufficient care to ensure that they do not cause damage to anybody using the highway". I believe that this Measure would increase the risk of accidents rather than decrease it.
911 I believe that in certain circumstances one has, even today, a right of action against a farmer who carelessly drives animals on the road. An action can be brought against him under certain sections of the common law. I think that it is very wrong, however, that the owner of a herd of cattle—it may be a pedigree herd—should have to prove that he had taken reasonable care when they were on the highway—that the onus of proof should be on him to ensure that reasonable care had been taken that they did not cause injury to persons or their agents on the highway.
To my way of thinking, this is a very poor Bill——
§ Mr. Probert
My hopes of the Bill receiving a Second Reading are very grim, indeed, but I must interject, because I have been intrigued by the remarks of the hon. Member for Exeter (Mr. Dudley Williams) and his hon. Friends about the legal aspects. I admitted at the start that I was not a lawyer, but my Bill results from recommendations put forward by certain people, and I should like to enumerate them. If I am wrong, they are wrong, too. The recommendations were made by Lord Goddard, the Lord Chief Justice of England, Lord Tucker, Mr. Justice Devlin, Mr. Justice Davies, Professor A. L. Goodhart, K.B.E., Mr. John J. Archibald, and others——
§ Mr. Probert
It was the Report of the Committee on the Law of Civil Liability for Damage done by Animals, presented by Lord Goddard to Parliament in January, 1953. My Bill is in accord with the recommendations of that Committee.
§ Mr. F. P. Bishop (Harrow, Central)
In spite of that wealth of legal authority, there are some of us Who have been puzzled as to what the legal effect of the Bill would be. I very much hope that my right hon. and learned Friend the Solicitor-General will have an opportunity to tell us whether it means nothing, or whether it means what some of us think that it means, which is a very great deal indeed. I do not know, and hope to be told.
§ Mr. Williams
I may be able to help the House by referring to a case in the House of Lords—the case of Searle v. Wallbank, reported in 1947 Appeal Cases, page 341. The heading is:Animals—Negligence—Straying from adjoining fields—Liability to fence.The head note reads:The owner of a field abutting on the highway is under no prima facie legal obligation to users of the highway so to keep and maintain his hedges and gates along the highway as to prevent his animals from straying on to it nor is he under any duty as between himself and users of the highway to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on the highway.Decision of the Court of Appeal Affirmed.That is the decision of the House of Lords.
The interesting thing about that case is that the animal must be dangerous. There is an onus on the owner of a dangerous animal, such as a bull. As I understand the law, a bull would put its owner in baulk, as it were; he would be in serious trouble if he allowed that animal to stray on the highway. In the case of the ordinary domestic animal, such as a cow or a sheep, according to the law of this country, he is not under an obligation to fence his land to prevent the animal straying on to the highway.
§ Mr. Kenneth Lewis (Rutland and Stamford)
Can my hon. Friend tell me whether the Bill relates to cats? It is supposed not to apply to domestic animals; it lists the sorts of animals to which it applies. When I go into a farm kitchen I often find that there are more cats than chickens. It is well known that cats can cause bad accidents on the roads.
§ Mr. Williams
I have heard of cats amongst the canaries but I have never heard of cats amongst the chickens. In fact, I believe that cats are covered by the Bill.
§ Mr. Williams
In my submission, cats are covered by the Bill and, as has been pointed out by my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke), so are dogs.
§ Mr. Williams
I think that we had better leave this question of cats. Otherwise, I shall not be able to complete my remarks, and I particularly want to give my right hon. and learned Friend the Solicitor-General an opportunity to express the Government's view.
I think I have said enough to make clear my view of the Bill. I hate the fundamental change in putting on the accused the onus of proving his innocence, and I hope for that and other reasons the Bill will not get a Second Reading.
§ 3.53 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
I should like, at the outset, to associate myself with what was said by my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke) and to congratulate the hon. Member for Aberdare (Mr. Probert) not only on his good fortune in the Ballot, but on the very attractive manner in which he put forward what is a measure of law reform, obviously not easy for a layman, but relating it very attractively, as it seemed to all of us, to his constituency interests.
As my hon. Friend also pointed out, the law on animals straying on to highways can be dealt with in two ways, either criminally or in the way of civil liability. This Bill does not touch criminal liability, and my hon. Friend is, I am sure, right when he says that the existing criminal law on the matter is out of date for the reason which he gave. It applies only to a limited number of animals and the penalty is only 5s. for each animal, with a maximum of 30s., however many animals are affected.
The civil law relating to straying animals is seriously defective, as was brought out by the Goddard Committee to which the hon. Member for Aberdare referred. The Committee made its recommendations as long ago as 1952, and the Report was presented to Parliament in January, 1953. However, this Bill isolates and picks out only one of the recommendations. As my right hon. and learned Friend the Attorney-General said when he was asked about the implementation of the recommendations of the 914 Goddard Committee, it is our view that they ought to be dealt with as a whole.
For farmers it is very much a package deal; and I think that the farming community might have legitimate cause for complaint if the heavy liability which is put on them by the Bill were not accompanied by a right, that was also recommended by the Goddard Committee, for them to shoot dogs which stray on to their land and are likely to cause injury to their farm animals. The hon. Member for Aberdare was, it seems to me, perfectly entitled to claim that he had high legal authority behind this particular proposal, although, as I say, it is an isolated one.
I am not myself clear where the onus of proof lies. The Bill is not clear in setting out precisely on whom the onus of proof lies. I think that my hon. Friends were quite right in saying that it is placed on the defendant, on the owner of the animal. Nevertheless, the hon. Member for Aberdare is entitled to say that, if this is so, it was, indeed, the recommendation of the Goddard Committee; and, therefore, in doing what is admittedly something unusual in our law, he has high judicial authority behind him.
As I said at the beginning of my remarks, the law on the matter is seriously defective. The Government welcome the attempt to deal with what is a quite anomalous rule of law, that is, that damage caused by animals straying on to a highway should not be pursuable in the civil courts at the suit of the person injured. On the other hand, the Bill isolates one of the recommendations of the Goddard Committee. Although it founds itself on the Goddard Committee's recommendations, that Committee, of course, has no responsibility whatever for the drafting of the Bill, which I regard as open to the serious criticism which has been made of it.
In particular, the definition Clause makes it very doubtful whether dogs or, indeed, cats, as my hon. Friend the Member for Rutland and Stamford (Mr. K. Lewis) pointed out, come within the purview of the Bill. The hon. Member for Aberdare does not intend that they should. On the other hand, the definition is merely that "animals" includes cattle, etc., but does not include poultry.
915 That suggests to me—and I think that this would be the construction put on it by the courts—that "animals" would extend to dogs and cats.
I have said that the Bill deals with a serious anomaly in the law, and I do not want to deprive the hon. Member of a chance of having a Second Reading of it, if that is the wish of the House. On the other hand, I should emphasise that the objections to the Bill which have been put forward by my hon. Friend the Member for Exeter (Mr. Dudley Williams) and my hon. Friend the Member for the Isle of Ely are serious objections. The Bill puts a heavy liability on farmers and landowners who may not themselves be responsible for their animals straying if someone else has left a gate open. It is uncertain whether it extends to dogs straying. The additional rights recommended by the Goddard Committee are not given to the landowner. Therefore, although, in principle, Clause 1 provides a welcome measure of law reform, I am bound to tell the House that, if the Bill goes to Committee, it will require considerable amendment.
§ 3.57 p.m.
§ Sir Robert Grimston (Westbury)
I add my congratulations to the hon. Member for Aberdare (Mr. Probert) both for his luck in the Ballot and for bringing the matter forward.
Whatever may be the outcome of today's discussion—I imagine that he already is of opinion that the Bill probably will not receive a Second Reading today—the short debate which we have had has been very useful. In my opinion, having regard to what has been said today, particularly by my right hon. and learned Friend the Solicitor-General, it is high time that the matter was examined with a view to legislation, though I join my hon. Friends who have opposed the Bill in saying that I do not regard it as the right means of achieving that end.
My opinion is reinforced by my right hon. and learned Friend, who points out that the Bill deals with only one aspect of the problem, and——
§ It being Four o'clock, the debate stood adjourned.
§ Debate to be resumed upon Friday, 14th April.