PENALTY FOR OFFENCES RELATING TO TIPS TO WHICH PART I APPLIES (Hansard, 21 January 1969)

§ Mr. Freeson
I beg to move Amendment No. 5, in page 7, line 44, at beginning insert 'and the act or omission which constituted the contravention was of such a nature that it impaired, or might in the opinion of the court have been expected to impair, the security of the tip.'

§ Mr. Deputy Speaker (Mr. Harry Gourlay)
We may discuss at the same time the following two further Amendments:
No. 6, in page 7, line 47, at end insert: 'so long as such imprisonment is limited to offences where there was a risk of death, serious injury, or danger to a person'. No. 7, in page 8, line 1, leave out from 'any' to 'subsection' in line 2 and insert 'contravention falling within'.

§ Mr. Freeson
Amendment No. 5 has broadly the same objective as the Opposition Amendment No. 6. It implements an undertaking given by my right hon. Friend in Committee. It was strongly argued by the hon. Member for Honiton (Mr. Emery) and several other hon. Members that imprisonment was too severe a penalty for contraventions likely to lead to danger to property only, and that only where there was a risk of death or injury to persons should someone be liable at law to such a heavy penalty.
416 My right hon. Friend then explained that the Bill did nothing to safeguard property, that it was designed for offences affecting people, but he would consider changing the Bill, if necessary, to make this clear. Hence this Amendment tonight. It is difficult to put over the main point at issue because the dividing line between danger to property and the potentiality of danger to people, in a situation in which one is seeking to deal with possible or prospective danger before it occurs, introduces difficulties of terminology. That is what gave rise to the discussion in Committee and to the need for further discussion now.
The Aberfan Tribunal reported that all tips are dangerous. Part I treats them as such by requiring that they shall be made and kept secure". It follows that any act or omission which caused or was likely to cause a tip to become insecure should be treated as a danger to people. This is the essential point.

§ Mr. Emery
I welcome the Government's Amendment, but my hon. Friends and I are still in some difficulty here. Our view is that the punishment of imprisonment should take effect only where there is the risk of death, serious injury or danger to a person. In other words, we want to limit imprisonment to offences against persons. Imprisonment should not be awarded for endangering 417 property. Our Amendment No. 6 would have that result.
11.45 p.m.
The Parliamentary Secretary has argued that it is the intention of his Amendment to do approximately the same thing, but my interpretation is different, and I have had some lawyers read it too. The subsection says: Where any person is convicted of an offence under the principal Act by virtue of—

(a) a contravention of any provision of this Part of this Act, or

(b) an act or omission which, by virtue only of a provision of this Part of this Act, constitutes a contravention of any provision of the principal Act or of regulations, …"
and we then have inserted: and the act or omission which constituted the contravention was of such a nature that it unpaired, or might in the opinion of the court have been expected to impair, the security of the tip. The Bill goes on to say that the person may then be convicted, and a fine or imprisonment not exceeding three months imposed.
The Parliamentary Secretary has argued that if the security of the tip is impaired this must be, by his definition, a danger to persons. I cannot accept that. In the report on tip management one reads time and time again of tips becoming insecure and moving. There may have been negligence, but until the Aberfan disaster there was never a fatality and in most of these cases there has never even been a risk of danger to person. Therefore, I find it particularly difficult to give the interpretation which the Minister gives us to his Amendment.
I ask the Parliamentary Secretary to draw his right hon. Friend's attention to what he said at the second sitting of the Committee on 21st November: I am able to say at this stage that the penalty of imprisonment is designed for offences affecting persons, not for offences affecting property."—[OFFICIAL REPORT, Standing Committee B, 21st November, 1968; c. 53.] The lawyers in his Department have obviously consicered the Amendment fully, but if they look at it yet again they must admit that the words might in the opinion of the court have been expected to impair the security of the tip. 418 do not imply that that must limit imprisonment to cases of danger to persons.
I do not think that I am disclosing any secret when I say that the C.B.I, feels very strongly on the matter. It urges that the Bill be brought into line with Section 155(2) of the 1954 Act, which makes it plain that it is where the safety of any person employed is concerned that imprisonment may be imposed. The C.B.I. would like this to be altered to read the safety of any person, leaving out the word employed. It believes that this is probably the best way of dealing with the matter. I feel that Amendment 6 would be equally suitable.
We shall, of course, examine what the hon. Gentleman said, but we are most concerned that when such a case comes to court the interpretation given by the court is likely not to be the same as that given by the Minister.
We welcome the Government's Amendment, which goes some of the way, but I urge the hon. Gentleman to look at our arguments before the Bill goes to another place. If we could have his assurance that he will do so, we could press on.

§ Mr. Freeson
On the last point raised by the hon. Gentleman, particularly as my right hon. Friend has not been able to be present for a short while during the hon. Gentleman's remarks, and since it was my right hon. Friend who gave the general undertaking in Committee on this matter, I feel it right to say that of course we shall look carefully at this discussion before the Bill reaches another place.
But in doing so I must be careful not to mislead the House into thinking that we are likely to change our minds, since we have already given the matter very careful thought. Our view is based on the principle I explained earlier. This is that to impair the security of a tip is to create danger to persons. If we have learned nothing else from Aberfan we must surely have learnt the importance of that.
We think that it would be wrong, where the security of a tip was put in peril, that the offender should escape because, fortuitously, there was not an actual case of danger to people—perhaps because they happened not to be present 419 at the time, or because no vehicles happened to be passing at the time, for example.
It remains a fact that, if one imperils the safety of a tip, one is imperils people's lives, and we have based our Amendment on that principle. We feel that we have been as flexible as we could be on this issue with our Amendment. Amendment No. 6 would restrict the position of a court should an offence of this nature take place. These are our views but the matter will be looked at again before the Bill reaches another place. I hope, however, that I have made our present position clear.

§ Colonel Lancaster
I am not altogether happy as to whether we are not perhaps allowing ourselves to be affected too much by the Aberfan disaster. Obviously, there was an immensely emotional content in that ghastly disaster, but we should not frame an Act of Parliament because of something which should never have occurred and which was wholly due to the mismanagement of the National Coal Board. To argue that that is ever going to happen again would be wrong. I do not believe that it will ever happen again.
My mind goes back to the question of the control of tips. It will always be a difficult question. Tips, for a number of reasons, tend to slide to a certain degree. They tend to exceed the land on which it had originally been arranged that the soil should be deposited. It could be said that every time that happens, if someone is stupid enough to lie down on that piece of ground, there is risk to life and limb. But that is carrying the thing to an absurdity. There is bound to be movement in tips. Anyone who thinks that tips can be made and that there will be no movement in them is not being realistic.
The whole essence of controlling tips was to limit movement so that the least damage would be done. But all movement of tips is not a threat to life and limb. There had never been a fatality from this cause until Aberfan. The movements are not very drastic, although once they start they take a lot of stopping. It happens in a very modulated way.
It can be argued that any movement carries a risk to human beings, but that 420 would bring the matter to an absurdity. It would mean that during the 170 years preceding Aberfan dozens of people would have been going to prison each year for movements which happened despite the best management put into the formation of tips. Tips are apt to move, often in only a minor way but sometimes in a more drastic way than is expected. I cannot believe that the House wants to introduce legislation of that type just because we are discussing this matter after the ghastly tragedy at Aberfan, which was something which I believe will never happen again.
We are getting the matter a little out of perspective. It could be shown that there have been occasions when there has been negligence of a nature which, since a tip was close to a road or a house, might endanger life.
On such occasions those who are negligent must be dealt with in a drastic manner. But the majority of tips are not close to roads or houses. They are sited in the first instance to avoid just those eventualities. But to say that if, every time there is a slip or a movement of the tip, the manager must have hanging over his head the risk of going to prison, is wholly unreasonable.
Although we have tried to tighten up the regulations under the Bill so that it can become a more definite Act, none of us would want to take part in bringing about a situation which, on the face of it, has an element of uncertainty about it. I hope that the right hon. Gentleman and the Parliamentary Secretary will think about the matter in the light of what I have said. Movement is inevitable, and no manager should have hanging over his head the possibility of imprisonment—even though he has used his best endeavours—just because there is some movement of the tip and it can be argued that somebody was on the site or passing it at the time and that he might have been injured or killed. That would be putting an unreasonable strain on managers. I hope that the right hon. Gentleman and his Department will give further thought to the matter.