HC Deb 04 May 1965 vol 711 cc1138-50
Mr. Peyton

I beg to move, in page 5, line 21, to leave out "in the opinion of the Minister".

The Parliamentary Secretary will recall that we had a certain amount of discussion in Committee on what gases were suitable for this kind of storage. I am grateful to you, Mr. Deputy-Speaker, for the exercise of your discretion in selecting an Amendment of which I recognise that not long notice was given.

The position of the previous Administration was that the use of these storages should be limited to natural gas, which was, of course, not poisonous. The Bill as now before the House provides that any gas can be stored there which the Minister believes to be suitable. It is right that we should ask the Government at least to state the criteria upon which the Minister will exercise this very wide discretion. In view of the change which the Government wrote into the Bill before introducing it, I take it that they are against limiting it to natural gas. Will the Parliamentary Secretary be good enough to say whether the Government will consider limiting the use of these storages either to non-toxic gas, or, alternatively, to gases which do not have anything above a permitted maximum of carbon monoxide content?

This is an important point. The Government should not run away with it and say, as the Parliamentary Secretary said in Committee, that Ministers do not act entirely in ignorance. This is not the kind of assurance with which public opinion is entirely happy. There is a profound conviction among some sections of the public that Governments, and in particular this Government, act frequently in ignorance. I hope, therefore, that on this occasion the Parliamentary Secretary will go a little further than he felt able to go in Committee and will at least give the House some indication of the criteria which the Minister will have in his mind when he exercises this very wide discretion.

Mr. Patrick McNair-Wilson (Lewisham, West)

As my hon. Friend the Member for Yeovil (Mr. Peyton) has pointed out, a similar Amendment was dealt with at some length in Standing Committee. It was suggested there that it might be useful for the Minister or the Parliamentary Secretary to make sure that there was available for everybody an opportunity to find out what gases the gas authorities had in mind for underground storage.

On that occasion it was suggested, and the Parliamentary Secretary acquiesced in the idea, that at some stage local authorities would be able to explain to people in areas where storage was likely to take place the sort of gases which might be involved in this storage. I remind the Parliamentary Secretary, therefore, of the concern felt by people in areas where this sort of storage might take place and their fears that there may be gases stored in their vicinity about which they would not be entirely happy. Can the hon. Gentleman give us some assurance on this point?

Mr. John Morris

I am glad to have this opportunity to refer to the gases which can be considered suitable for storage underground, but, first, I should like to stress, as I did in Committee, that the Minister is bound by the terms of Clause 4(1) to authorise underground storage in natural porous strata of only such kinds of gas (including natural gas) as, having regard to the safety of the public and the need to protect water resources, are, in the opinion of the Minister, suitable for such storage. He therefore would not be free to authorise the storage of gas which would pollute water in natural porous strata or of a toxic gas in circumstances where there was a risk of its escaping and endangering public safety.

There could be circumstances where it was entirely safe to store toxic gas and, therefore, the Bill does not forbid this, although it seems academic in the light of technical developments in gas making. Perhaps I might round off the discussion of the kinds of gases for which underground storage authorisation might be given by saying that there are some gases, Algerian natural gas being the outstanding example, which would normally be suitable to store underground in almost all circumstances because they are non-toxic and would not contaminate the water. Most natural gases would come into this category, but there are some natural gases which would require the removal of sulphur gases before storage, as is done already in France.

I took the opportunity over the weekend of visiting some of these structures. Near Paris there are two very well-known ones. One has been in use since 1956 and in that one manufactured gas is stored. In the other one, at St. Illiers, which has been in use for the last three weeks, the French have begun to inject gas, and they are using Algerian gas. I have spoken to one or two people who have had wide experience of this in France. There are also many such storages in the United States.

I give the House the assurance given to me about experience in France by the President of Gaz de France, M. le Guellec, that no difficulty has been experienced about public safety. When hon. Members look at these matters they should be aware, as I am sure they are, that we are doing in this country only what other countries have been doing for many years. It is a novelty only in our own country.

As I said, most natural gases are suitable though some of these might require the removal of sulphur. With modern gas making processes, gases can be manufactured with characteristics similar to those of natural gas and these may prove just as suitable for underground storage. It is these gases, natural or manufactured, which would normally he considered suitable for underground storage, and it is for the storage of such gases that the powers under the Bill are primarily intended. As my right hon. Friend said on Second Reading, it is these gases which the industry plans to store.

5.0 p.m.

We should approach the Bill in this light. Storage of a toxic gas or one which would pollute water could be considered suitable only in exceptional circumstances, for example, where the storage was remote from human habitation and usable water. While this would be the exception, the Government do not wish to rule it out altogether and would not want to put a figure on a maximum carbon monoxide content of gas before it could be regarded as suitable for storage. Between a gas which contains no carbon monoxide and one which is highly toxic, there are many gradations, and the gradation which might be acceptable in any particular case would depend on the circumstances in which the gas was to he stored.

At the end of the day, we come back to this. Whatever gas the industry wishes to store underground, the Minister will need to satisfy himself that it is or can be made suitable for storage in the circumstances proposed without danger to the public or to water resources. Otherwise, he would not be entitled to give an authorisation to the gas authority.

Mr. Peyton

With the leave of the House, may I add a few words? I feel some concern when the Parliamentary Secretary says, as he did just now, that there could be circumstances in which it was entirely safe to store a toxic gas. I do not concede this. I have great doubts about it. As I understand, it is virtually inconceivable that water would not be present in a storage. This being so, it is certain that the water would be affected by the storage of a toxic gas.

The Parliamentary Secretary said, quite rightly, that the use of toxic gas in this country will diminish, that not only do the new processes produce non-toxic gas but the carbon monoxide content of the other gases is steadily being reduced. I urge the hon. Gentleman to recognise that this is an exceedingly important point. The Bill is soon to go to another place, and I hope that he will have further thoughts on the matter. If the toxic content of gas is to be reduced, this is a very strong reason for saying at this stage that in no circumstances will the Minister permit a gas with more than a certain content of carbon monoxide to be stored in the strata with which we are here concerned.

I press the hon. Gentleman to reconsider it. I am not satisfied that it is reasonable for a Minister to say at that Box that he is satisfied that there could be circumstances in which it was entirely safe to store a toxic gas.

Mr. John Morris

By leave of the House, may I speak again, and ask the hon. Gentleman to put this matter in its proper perspective? The intention is to store natural gas. That is the strongest and most obvious candidate for this kind of storage. It is the candidate in the recent developments in other countries. I referred to the recent developments which I saw yesterday in St. Illiers. But there might be circumstances in which the Minister, having regard to his obligations under Clause 4(1) for the safety of the public, on the best possible advice tendered to him and after all the elaborate statutory precautions and inquiries had been gone through, might come to the conclusion that it would be safe to store either manufactured gas or gas which had some degree of toxicity. But, with respect, this should be put in proper perspective.

The obvious candidate is natural gas. But on the other hand the degree of toxicity of manufactured gas, in this country, is rapidly becoming less year by year, as hon. Members know. All I am saying is that, at the end of the day, this matter must be left to the opinion of the Minister of Power, whoever he may be. He is ultimately answerable to Parliament for his decision. I ask the House to leave the matter open. I am deeply aware of all the considerations so eloquently advanced by the hon. Member for Yeovil (Mr. Peyton), but I am sure that he will bear in mind the most natural and probable outcome of developments as they are now envisaged by the gas authorities.

Amendment negatived.

Mr. McNair-Wilson

I beg to move Amendment No. 6, in page 5, line 29, to leave out from "proceedings" to the end of line 30.

We now return to an Amendment which was dealt with at some length in Committee, but which was not, in the interests of speed, pressed too hard because the Parliamentary Secretary then said—I have his words here—that he was prepared to give any assurances that hon. Members might require.

The Amendment relates to that part of subsection (2) which is designed to make clear that the giving of storage authorisation orders does not protect the gas authority from its legal duties to third parties. Like much else of the Clause, it is designed to make clear to the general public and those who are likely to be affected by storage authorisation orders that they are fully covered in law for any loss or damage they may suffer.

The closing words of the subsection, which we propose should be left out, are particularly unhappy inasmuch as they qualify the liability of the gas authority by reference to any nuisance caused by them. We are concerned about the word "nuisance". In Committee my hon. Friend the Member for Wanstead and Woodford (Mr. Patrick Jenkin), who is something of an expert on legal matters, pointed out that nuisance is a term hard to define, and he quoted from Halsbury's Laws of England, page 126, The term 'nuisance' as used in law is not capable of exact definition. Our Amendment is directed to this problem.

The Parliamentary Secretary said that this form of words could be found in other Acts and that it was suitable for incorporation here. But Clauses 14 and 4 of the Bill are in conflict. Clause 14 imposes absolute liability on the gas authority, that the gas authority shall be absolutely liable in civil proceedings in respect of damage caused by gas … and we read that damage is to be construed as meaning loss of life, personal injury and damage to property. As I say, there seems to be a conflict between Clauses 4 and 14. On the one hand, the Parliamentary Secretary tells us that Clause 4(2) in no way restricts the provisions of Clause 14 which imposes absolute liability, but, on the other, we have the limiting reference to nuisance in the subsection. If no restriction is intended, why are these words necessary? What is the point of saying for any nuisance caused by them"? I hope that the hon. Gentleman will reconsider the matter. We did not press it in Committee for the reason I have given, but we remain very unhappy about it because this appears to be a limiting form of words. At a time when we are introducing important legislation dealing with a completely new branch of activity for the gas authorities and when there is some concern in various parts of the country, the Government would be well advised to do everything possible to ensure that forms of words are written into the Bill to make clear to the general public that the liability of the gas authorities is in no way intended to be limited.

Mr. John Morris

We had a long and interesting discussion on this matter in Committee, and, unless the House wishes, I shall not go over all the argument again. This kind of provision is common form in other enactments. It is to be found in paragraph 42 of the Third Schedule to the Gas Act, 1948. It has a precedent as far back as Section 81 of the Electric Lighting (Clauses) Act, 1899, which was applied by Section 57 of the Electricity Act, 1947.

In the light of those matters and the antiquity of the precedent, perhaps should tell the House the purpose of having such a provision here. I told the Committee on several occasions that Clause 14 imposes absolute liability at law on the gas authority, and the reason for having this added provision in Clause 4(2) is not to create any conflict with Clause 14 but merely to make assurance doubly sure about nuisance.

I take the point of the quotation by the hon. Member for Lewisham, West (Mr. McNair-Wilson) from Halsbury on the difficulty of definition of nuisance, but I assure the House that the purpose of Clause 4(2) is to provide that, in the unlikely event of an action being brought against a gas authority at common law, the gas authority will not be able to plead that, by reason of the statutory authority conferred by the storage authorisation order, it has statutory authority to commit the nuisance complained of.

Even though absolute liability is imposed by Clause 14 on the gas authority, it does not remove anyone's right to sue the gas authority at common law. In the remote possibility of someone doing so, it is necessary to ensure that the gas authority could not, in those unlikely circumstances, if an action in nuisance were brought against it, rely upon any statutory authority conferred upon it.

Mr. Patrick Jenkin

I am following the hon. Gentleman's argument with great care, and it is much the same as was deployed in Committee, but the difficulty which we feel about it is this: why is it thought right to limit the exclusion to cases of nuisance? There could be many other causes of action which did not sound in nuisance, actions in trespass, assault or negligence, all of which are outside the scope of nuisance, yet they would be outside the scope of the subsection because of the final limiting words. Will the hon. Gentleman deal with that?

5.15 p.m.

Mr. Morris

I will certainly take the point made by the hon. Member about why this should be limited to nuisance. I would have come to that as my next point, even if it had not been raised by the hon. Member for Lewisham, West. I hope that I have managed to persuade hon. Members that there is no conflict between Clause 4 and Clause 14. The purpose is rather to make assurance doubly certain and that in the remote possibility of any person suing a gas authority in nuisance, the gas authority cannot set up a defence that it has statutory authority for committing the act. There is no conflict here whatever.

The hon. Member for Wanstead and Woodford (Mr. Patrick Jenkin) asked the reason for the limitation to nuisance only. Our views are that the Clause should be limited to nuisance and not to, say, trespass or negligence, because under the existing law the defence of statutory authority which the subsection excludes concerning nuisance could not in any event be pleaded for trespass or for negligence. That is obvious. As regards trespass, express statutory authority would be needed for any person, including the gas authority, to be permitted to commit a trespass against another person or another person's land. That removes the issue of trespass.

As to negligence, even if the Statute permits a person or an authority to do a certain act, it permits him to do it only provided that he does not do it negligently. Statutory authority in itself is no excuse for a person to commit negligence. There is, I am sure, no need for me to labour the point. That deals with the two aspects of the question which the hon. Member for Wanstead and Woodford put eloquently and reasonably in Committee about why the Clause should be limited to nuisance. I hope that I have persuaded the House on this aspect.

Perhaps I may now properly deal with some of the other issues that were raised in Committee. The hon. Member mentioned the case of Rylands v. Fletcher and why we should not deal specifically with the kind of case that he advanced. It is possible that it could arise in these circumstances. The hon. Member told us that Rylands v. Fletcher is not strictly a part of the law of nuisance and, again, he quoted eminent authorities.

Subsegtion (2) of the Clause states in terms: and shall not authorise the disregard by any gas authority of any enactment or rule of law". I am advised that the words "or rule of law" in this context include a reference to Rylands v. Fletcher and, therefore, the subsection would apply to cases falling within that rule as well as to actions for nuisance. There is some conflict, on which I need not detain the House, about how far the rule in Rylands v. Fletcher applies in this kind of case.

At the end of the day, Clause 14 is far wider. It imposes absolute liability. If any person in a remote contingency were to bring an action in nuisance, it would be covered by subsection (2). If he were to take an action, which, again, is a remote contingency having regard to the variety of defences that could be raised in an action under Rylands v. Fletcher, that is covered by the Clause.

Dr. Reginald Bennett (Gosport and Fareham)

I have watched this point carefully since the introduction of the Bill in the former Parliament and I gather from what the Parliamentary Secretary has said that the major damage, destruction and injurious affection to property and people comes within Clause 14 and that minor matters which might not come within that Clause are dealt with under Clause 4 and subsection (2). If I am correct in that assumption, does the Parliamentary Secretary have in mind the Government's view of the sort of thing for which the Clause and the subsection might be applicable in the way of nuisance?

Mr. Morris

Obviously, there is a limit to how far I can assist the hon. Member in hypothetical cases. Clause 14 imposes absolute liability upon a gas authority. That is a heavy and onerous responsibility. As I have said both today and earlier in our proceedings, the insertion of a Clause like Clause 14 in the Bill does not remove from a person his right to sue at common law. Were he so to do in nuisance, which in my submission is a remote contingency, the gas authority would not in those circumstances be able to rely upon a defence that the statute permits it so to do. That is the sole and simple object of part of the Clause which is found in similar statutes.

Mr. Peyton

It is not my intention to press the Amendment or to spend much further time upon it. I agree entirely with the argument advanced by my hon. Friend. The Parliamentary Secretary has not justified the inclusion of these words. I am sorry that he has not agreed to their deletion. I appreciate that the force behind them is the argument adduced by the hon. Gentleman in Standing Committee that if these words were not included, the wording would be different from that which is used in other Statutes.

I have some sympathy with the hon. Gentleman in that respect, because once a form of words is used in one Statute it continues to be re-echoed down the ages in Statute after Statute, whether it is necessary or not. I know that the hon. Gentleman is bearing a burden in which he is not alone, but I am sorry that he has not been able to convince me and I do not think that he has convinced this side of the House.

Amendment negatived.

Mr. Nicholas Ridley (Cirencester and Tewkesbury)

I beg to move Amendment No. 7, in page 5, line 34, to leave out "or" and to insert "and".

Mr. Deputy-Speaker

I understand that it would be for the convenience of the House to take at the same time, Amendment No. 8, in line 34, leave out "as the case may be".

Mr. Ridley

Yes, Mr. Deputy-Speaker.

The two Amendments, which it would be convenient to take together, arise from a debate in Committee. Two alternative ways were discovered of reading subsection (3) of the Clause and on that occasion the Parliamentary Secretary kindly undertook to check whether there was any possibility that the words could be read in the way that some of my hon. Friends read them rather than as he read them, because there is a considerable difference between the two interpretations.

As I see the words, they could mean that the Minister or the gas authority, whichever of the two felt inclined to do so, should have regard to safety. According to the Parliamentary Secretary's version, the words could mean that the gas authority should have regard to safety during the making of a storage authorisation order and that the Minister must have regard to it during the consideration of the gas authority's proposals.

I still feel slightly unconvinced by the Parliamentary Secretary's interpretation. When a proposal is submitted, there will surely be a lot of to-ing and fro-ing between Millbank and Grosvenor Place. The two separate parties will not stand aloof and refuse to see or to speak to each other. The gas authority will be consulting the Minister when it formulates a proposal and when the Minister is considering the proposal he will, no doubt, be asking the gas authority about this, that or the other. For all these reasons, there must be a great traffic between the Ministry and the gas authority and it is natural that they should both, at all stages, have the safety issue firmly in mind. To leave the words as they appear in the Bill suggests that only one or other of them is to have concern for safety.

I should like to know from the Parliamentary Secretary what his further thinking on the subject has led him to conclude. If we on this side can place the interpretation which I have suggested on the words in the subsection, is it not likely that people outside this House who live in areas where a gas storage authorisation order might be made would look at the Statute and come to the same conclusion as ourselves? It would be no sacrifice for the Government to accept the Amendment, because the importance of safety in this matter cannot be overemphasised.

I am not a lawyer, but I feel that the Amendment would remove a great deal of anxiety in the public mind. Even if the words may not be strictly in accordance with lawyers' requirements, that they should be strictly satisfactory to this side of the House and to the public at large is surely more important.

Mr. John Morris

I am glad to have this opportunity of giving the fruits of my re-examination of the problem. The hon. Member for Cirencester and Tewkesbury (Mr. Ridley) posed an interesting point towards the end of his remarks when he suggested that if he and his hon. Friends placed a certain interpretation upon the Clause, people elsewhere might reach a similar interpretation. I should not like to follow that analogy too far, because the interpretation which the hon. Member and his hon. Friends sometimes place upon certain Clauses is not always reflected in the interpretations that people elsewhere place upon statutes and legislation.

The Minister and the gas authority are to have different functions at different stages. I repeat unashamedly that this kind of subsection is common form with other Statutes. I have already said that it provides the proper safeguards that the circumstances require. There is no ambiguity.

As promised, I have examined the Clause and its drafting and have taken advice upon it. On the best possible advice, I am able to confirm that there is no ambiguity about the phrase the gas authority or the Minister, as the case may be". It puts the gas authority and the Minister under a duty to have regard to the safety of the public and the protection of water resources. The gas authority is to have regard to this in the formation of any proposals for the making of a storage authorisation order, the gas authority's functions in the matter being to make such proposals.

The Minister is to have regard to this in the consideration of any such proposals, his function in the matter being to take the gas authority's proposals into consideration. Thus each of them, the gas authority in the initial stage and the Minister in the later stage, is given a duty in respect of its or his own function.

I would have thought that this was eminently sensible and that there was no conflict and no ambiguity. Each is given its own function and its own duty.

Mr. Ridley

I am glad that we gave the Parliamentary Secretary the chance to redeem his pledge to look at this matter again. His answer has been perfectly satisfactory and I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.