§ Order for Second Reading read.
§ 7.34 p.m.
§ The Solicitor-General (Sir Arthur Irvine)
I beg to move, That the Bill be now read a Second time.
The Bill deals with a branch of the law which is of great antiquity. It concerns the civil liabilities of those who keep or own animals for any injury or damage which those animals may cause to others, and, conversely, with the remedies which may be invoked by anybody injured by an animal or whose property is damaged, and with the preventive action which people may take to protect themselves and their property against attack from animals belonging to others.
The House will appreciate that these are matters which impinge on the daily lives of many sections of the community. A law which touches so closely the lives of ordinary people should be simple and certain. Unhappily, at present that is not so. It is one of the most intricate, complex and uncertain branches of our common law, much of it going back to conditions which prevailed centuries ago, before the Industrial Revolution.
The need for modernisation and reform has long been recognised. A Committee was set up as long ago as 1951, under the chairmanship of the then Chief Justice, Lord Goddard, to consider the law of civil liability for damage done 509 by animals. The Committee recommended extensive reforms, but those recommendations have never been implemented; and the need for reform has become greater.
This branch of the law was, therefore, one of the first subjects that my hon. Friend the Lord Chancellor referred to the Law Commission for examination. The Bill accords in most respects with the legislation recommended by the Law Commission in the Report published in October, 1967 entitled, "Civil Liability for Animals". The Law Commission undertook extensive consultations, which are set out in Appendix B of the report.
It is probably true to say that over a large part of the sphere covered by the Bill there is a wide consensus of agreement, and I hope and expect that that is the case. On some issues, however—I will mention two—there are conflicts of opinion. These two are questions affecting the liabilities which a person should incur when his animal strays and causes injury on the highway, while the other is the question of the extent to which somebody may shoot a marauding dog in defence of his livestock. These have evidently been weighed with great care by the Law Commission, and the Government accept the solutions which the Law Commission advocates.
What, broadly, is wrong with the present law? I think it could be said that it fails to meet the requirements of the present day in three respects. First, it is often found to be uncertain. As I indicated, this is a branch of the law of such everyday importance in the lives of ordinary people that justice can be achieved only if the law is both simple and certain. People should be able to discover easily and with assurance what are their rights and obligations.
Although the broad principles of the law are mainly sound, their exact operation is often obscure and uncertain. I will give two examples of this. It is well-established law that anybody who keeps a dangerous animal, whether it is an inherently dangerous one like a tiger or one which, although of a harmless species, is known to have dangerous characteristics, like a vicious dog, is responsible for any harm that that animal may do. But it is by no means clear whether an owner is liable where an animal has been allowed to escape as a result of inter- 510 ference by a third party or what is the extent of the liability of an employer where injury is done to a servant whose duty it is to look after the animal and who might be said to have voluntarily assumed a certain degree of risk.
I think that the House will agree that these are two instances of matters which can easily arise in everyday life and experience. There is even greater uncertainty about the extent, if any, to which the owner of such an animal may be liable to persons who are injured while trespassing.
To take another example, it is well-established law that if one's cattle stray into one's neighbour's garden and eat his cabbages one must pay compensation irrespective of any fault on one's part. But the law is obscure, I think, on the exceptions to this liability; where, for instance, one's neighbour could have kept out one's animals by putting up a fence and has failed to do so, or where circumstances wholly outside one's control—as in the case of a fence knocked down by a car or pulled down by destructive youths, for example—have allowed the animal to escape.
Another defect of the present law is the development of fine distinctions leading to excessive complexity and sometimes quite unreasonable results. The basis of the decisions which constitute the case law under this head becomes part of the common law to be followed by the judges in subsequent cases. In some instances, the law has developed over a long time principles which are inappropriate today. There is the question of what is or what is not a dangerous species. Whether an animal belongs to a dangerous species is a matter of law which has been determined by reference to criteria which are now out of date. Once determined, the classification cannot be changed except, perhaps, if a subsequent case is taken through all the instances up to the House of Lords. So it is now the law that elephants and monkeys are wild and dangerous, but camels and bulls are tame and not dangerous.
Another example can be taken from the law relating to the right to detain animals which stray on to one's land. This is intended to enable people to protect themselves against further damage and to ensure that they will get compensation for any damage already done. 511 But, the exact extent to which the detainor of the animal may obtain compensation and the extent to which he himself becomes responsible for the welfare of the beast he has detained depends on whether he has impounded the animal on his own land or in a common pound. Cattle pounds are not readily accessible to most of us nowadays, and the impracticability of this remedy, together with the overriding defect that there is no power to sell the animal where the owner does not reclaim it, have rendered this branch of the law almost wholly obsolete.
§ Mr. Emlyn Hooson (Montgomery)
The right hon. and learned Solicitor-General suggested that bulls and camels were not regarded as dangerous animals. Does he impliedly suggest that under this Measure a bull will be regarded as a dangerous animal?
§ The Solicitor-General
Under this Bill the distinctions that have been drawn under the common law, which I illustrated by reference to these two types of beast, are eliminated, and what I suggest to the House is that they were unrealistic distinctions and did not accord with contemporary and common sense opinion.
The third defect of the present law, and perhaps the most serious, concerns animals on the highway. The legal rules—
§ Mr. Leo Abse (Pontypool)
Before my right hon. and learned Friend moves from the question of retaining the animal, will he explain why it is that now we are to be faced with a situation that there has to be a retention for 21 days and not for the 14 days recommended by the Law Commissioners, which imposes an intolerable burden in South Wales upon people who have not the facilities to keep sheep in their back gardens?
§ The Solicitor-General
I take note of my hon. Friend's point. It is interesting and, no doubt, arguable, but he will agree that it is a Committee point, and I look forward to the opportunity of pursuing it in Committee.
The third defect of the present law, as I have just indicated, concerns animals on the highway. The legal rules regard- 512 ing animals on the highway are based, I think the House will agree, on social conditions of a different age. Today, they have become inappropriate, and work serious injustice.
The occupier of land adjoining the highway is under no obligation to prevent his animals from straying on to the highway and, therefore, owes no liability for damage or injury caused by his straying animals. The rule dates back to the times when highways came into being across open land, the soil of the highway and the adjoining land often being in the same ownership. So if, today, sheep straying on the highway unseat a bicyclist, or a dog causes a car to swerve into a wall, or a stray horse is responsible for a traffic accident injuring a coach load of passengers, for example, there is no legal remedy. The principle has been applied time and time again with the utmost reluctance by judges who have felt themselves constrained to do so.
In this connection I draw attention to a comment of Lord Justice Pearson, as he then was, in the case of Ellis v. Johnstone—a 1963 case:In this sphere the common law has not shown its usual elasticity and adaptability. It has become so rigid that it has failed to make any response at all to the changing conditions on the roads and their traffic".Those words indicate what I feel sure the House will be satisfied of, which is that there is a need in this field for a new and clearer statement in statutory form of the law in this matter, which is at present such a complex and elaborate department of the common law.
The Bill seeks to put these matters right. The first six Clauses introduce a new code of strict liability for animals —and by "strict liability" I mean liability irrespective of fault. Apart from the code of strict liability, liability will continue to depend on the fault of the keeper of the animal under the general rules of the common law as amended by the Bill. A person who keeps or controls an animal is always responsible if it does damage because he has failed to take reasonable care to prevent it from doing so. That liability is based on the law of negligence or the liability of occupiers for the safety of their premises, with which these six Clauses are not concerned. This part of the Bill sets out 513 in statutory form all the circumstances in which a person will in future be liable, irrespective of any fault of his, for damage done by his animals. It replaces the common law, and sets out with precision who is to be liable and to whom, what kind of damage it is for which liability is incurred, and what defences may be used to rebut a claim.
The new code re-enacts the broad principles of the existing common law, but irons out anomalies and complexities. It introduces certainty where the law was ambiguous or ill-defined. Fairly broadly, applying the new code has the result that anyone who keeps an animal of a dangerous species or one which although of a harmless species he knows to have dangerous propensities, will be liable for any damage or injury done by it, unless the injured person was himself wholly at fault or voluntarily accepted the risk of injury, and subject to certain qualifications where the injured person was a trespasser. A person who keeps a dog will be liable, irrespective of any fault of his, if the dog kills or injures someone else's cattle or poultry. Again, there are certain well-defined exceptions. Anyone whose livestock strays on to another's land will be liable, again whether he has been at fault or not, for any damage done to crops or plants growing on the land or to any property belonging to its occupier, but this liability is excluded where the occupier was himself solely responsible for what has happened or where the animals strayed on to his land from the highway.
There follows Clause 7, which makes provision for a new statutory right to detain and sell trespassing livestock. This is to replace the common law remedy of a similar nature known as "distress damage feasant". The precise limits of the right are set out, and much archaic law on the seizure of animals—their impounding and redemption—is swept aside. The most important feature of the new right is that unless the detained animals have been reclaimed and satisfactory amends for damage done by them and the cost of detaining them has been tendered by their owner within 21 days, the person detaining them may proceed to have them sold either at a market or by public auction. The interests of the owner of the animal are safeguarded by a requirement that he must be noti- 514 fied, if his name is known, and so must the local police, within 48 hours of the detention, and a further requirement that the animal must be returned to its owner on receipt of the appropriate amount of compensation.
The most far-reaching change of the existing law made by the Bill is in Clause 8, which deals with the escape of animals on to the highway. The complete immunity from liability for acts done on the roads to which I referred a few moments ago will disappear. In future the normal rule whereby a person is liable for negligence if he does not exercise reasonable care in relation to any animals or things in his control to ensure that they do not cause injury to others will apply in respect of damage caused by an animal which has escaped on to the highway as it applies to damage done by animals or chattels anywhere else. In determining whether there has been a failure to take reasonable care the court will, of course, take account of all the circumstances. It does not follow that in future the owner of the animal responsible will always be liable where injury or damage is occasioned on the highway. That will depend on the adequacy of the steps which he took to prevent the accident.
On a busy main road with a constant flow of traffic it might well be negligent to allow a dog off the leash whereas it would be perfectly reasonable to do so in a quiet country lane. Similarly, it would almost always be negligent to allow cattle to roam freely by the side of busy main roads close to built-up areas. In such an area cattle and horses ought to be fenced in, but different considerations might apply where a road crosses open land and travellers must know that cattle and horses are habitually left to graze there.
The court is assisted in the evaluation of the various factors which may establish or negative negligence by guidelines laid down in the Bill. It is to have regard to the nature of the land and the situation of the highway, the extent of the use likely to be made of the highway, the obstacles which the animal has to overcome before straying on to the highway and the extent to which those travelling on the road can be expected to know of the risks and to guard against them. Finally, the court must take into account 515 the seriousness of the risk compared with the steps necessary to avoid or reduce it and, where the dangers could have been avoided or reduced by fencing, the extent to which fencing is normal practice in the area concerned.
This final criterion about the practice of fencing is not found in the corresponding Clause of the Bill annexed to the Law Commission's Report. It has been added because the Government are conscious of the anxiety felt by the farming community in those areas of the country where land is normally left unfenced. These farmers fear that the Bill will impose heavy financial burdens on them and that they will have to put up fences. It will be appreciated that the Government had these considerations well in mind when that amending provision found its way into the Bill.
§ Mr. J. E. B. Hill (Norfolk, South)
When dealing with fencing, had the Government in mind the common practice of using electric fencing when cattle are grazing in fields which are not always grass but only temporarily grass? This is an important factor in arable areas.
§ The Solicitor-General
I am obliged to the hon. Member for that intervention. I have no doubt that these factors have been in mind, as indeed all have been. That is a point which perhaps we can pursue at a later stage.
§ Sir John Foster (Northwich)
In future if the electricity supply failed and the cow got out, would the owner of the cow be liable?
§ The Solicitor-General
The hon. and learned Gentleman is establishing a reputation in my mind, he may be interested to know, of putting before me fairly elaborate and complex points and theoretical possibilities. I would rather like to reserve my answer to that inquiry. I hope that in requiring the court to have special regard to the extent to which fencing is normal practice in the area we shall be regarded as having gone a considerable way to meet this anxiety. Some additional liability will fall on farmers in open parts of the country but I do not believe that it will be serious or that it cannot be covered by insurance at minimal expense. The Bill does not impose liability for animals straying from common land or town or village greens, 516 because it is impracticable to put livestock out to graze on a common and to prevent them from straying; commoners have no right to put up fences.
As a result of the change in the law on animals on the highway, the owner of a dog which runs into the road and causes an accident will in future be liable for the consequences in some instances where hitherto he would not have been liable. The number of such cases may not prove to be very large since even at the present time the owner will often be liable because he has been negligent and in any event there are the difficulties of identifying the dog, of establishing that it was the cause of the accident, and of tracing the owner. But it is hoped that the Bill will have some salutary effect on the control which people exercise over their dogs and in inducing more of them to cover themselves by insurance for any damage which their dogs may do. Road accidents involving dogs kill or seriously injure on average about 500 people a year.
Statistics are not available of the total number of road accidents involving animals of all kinds but the figures concerning dogs are some indication of the scale of this danger and risk. One of the benefits I hope from this Bill is a reduction of the accident rate.
Lastly I ought to mention the rationalisation of the rules which govern the extent to which a farmer can protect his livestock against marauding dogs. The existing law which has developed from the right to defend oneself and one's property no longer meets the needs of the farming community. Sheep and poultry worrying is a serious problem in some parts of the country. The Law Commission gives some interesting figures on page 36 of its Report. These cover the years 1961 to 1966. I am informed that the number of sheep killed and injured by dogs in 1967 and 1968 were 8,537 and 7,001 respectively. There has been a welcome improvement in these figures over the last 10 years, but they still represent a real problem.
The Bill will materially strengthen the position of the farmer who is defending his stock. Where at present he can shoot a dog only while an attack is in progress or is about to be resumed after being broken off, he will in future be able to do so if he reasonably anticipates that 517 an attack is imminent. He will also have a good defence against an action by the owner of the dog if he shot it when it had been worrying livestock and was making its escape. On the other hand there will be safeguards for the owner of the dog. An escaping dog must not be shot if it is under anybody's control or if there are practical means of discovering to whom it belongs. After a dog has been killed or injured the police must be notified within 48 hours.
I turn to the provision in Clause 11(2) which has undertones reminiscent for many of us of earlier occasions, the provision:In ascertaining the meaning of any provisions of this Act, regard may be made to the Report of the Law Commission on Civil Liability for Animals.I want the House to consider that, because this is an important issue in principle and everyone will wish that we should make progress in our consideration of it. I well remember that on an earlier occasion the hon. and learned Member for Montgomery (Mr. Hooson) helpfully treated this as a matter which deserved careful inquiry and analysis. The Bill affords another example of the type of provision with which much concern has been shown.
We want to get the background right about this and bear in mind that in most situations involving a legal dispute the effect of any Statute will be clear once the facts have been determined. Even where disputes reach the courts, by far the greater part of the judge's task, at any rate at first instance, is to find out what actually happened.
Questions of interpretation of Statutes will arise only in a minority of cases. In these cases any competent lawyer will necessarily, if he is to discharge his duty to his client, have regard to the background and to any relevant extraneous aid. If the legislation derives from a report, he will look at the report. He will also take note of the views expressed by leading textbook writers and by authoritative writers in legal periodicals. He will also have to read any relevant cases. It is quite clear that before advising his client on any difficult points of construction the lawyer does not merely read a Queen's Printer's copy of the Statute.
That is the background before which this matter deserves to be considered.
518 In a case which does involve a question of statutory interpretation and which is litigated, the question arises: can the courts openly look at reports of Royal Commissions and committees which have wholly or in part been the basis of the legislation in question? It is quite clear that in the present state of the law the court can look at any of this material in order to inform itself of the mischief which the Statute was intended to remedy. The right of the courts to do this has been recognised by them in cases since the 16th century.
The present law would seem to draw a distinction between reference to commission or committee reports for the purpose of ascertaining the mischief which is committed and reference for the purpose of ascertaining the particular remedy which the Statute provides. I suggest to the House that on analysis this rigid distinction is found in practice to be somewhat unreal. In fact, I believe it true to say that judges now tend to look at reports as a whole.
This matter was emphasised by the noble Lord, Lord Denning, in the Second Reading debate in another place on the Matrimonial Proceedings and Property Bill. The blurred line between mischief and remedy is illustrated by the remarks of the President of the Probate, Divorce and Admiralty Division in the recent case of F. v. F., reported in 1970 1 All England Reports, pages 204–5:The court will seek to ascertain what was the pre-existing mischief which Parliament was endeavouring to remedy: this will often give a guide to what remedy Parliament has provided, and to its extent and sanction. In the case of Section 2 of the 1958 Act…the preexisting mischief cannot be in doubt. It is spelt out in detailand he gives the reference.… nowadays courts do not insist on proceeding blindfold when such information is available.The difficulty of the present distinction between using a report for the purpose of ascertaining the mischief which a Statute is designed to remedy and ascertaining the nature of the remedy is well illustrated in the case of the present Bill. Most of the relevant law relating to animals is to be found in a complex body of case law. The Law Commission report offers a most valuable summary and illustration of the existing law which it is most difficult for the practitioner to begin to achieve by 519 analysis of the hundreds of cases at common law which are relevant.
The practitioner and the courts are at present entitled to read the report in order to identify those parts of this body of law which are regarded as being in need of change, but, having reached that point, I suggest that it is quite artificial to pretend that the reader can draw a line which will exclude those parts of the report which indicate the remedy.
Still upon this important point, it has been suggested that the proposal is undesirable because it reduced the authority of Parliament and inflates the authority of the Law Commission. This argument I believe to be utterly misconceived. I believe it to be nonsense. The purpose of this type of Clause is not to challenge the authority of Parliament. It is wildly absurd to think that the Law Commission would ever lend itself to such a challenge. On the contrary, the purpose is to give Parliament the opportunity, if it thinks fit, of providing the courts with the means of carrying out Parliament's intention more effectively. Nor do such Clauses result in any diminution in the interpretative powers of the court. They strike off fetters by which the courts are at present bound in theory and to some extent in practice.
A further facet of the constitutional argument is that to make the report on which a Bill is based admissible in aid of its interpretation is an attempt to inhibit Parliament from rejecting the recommendations of the report or from amending the Bill as originally drafted.
This is the last thing that is intended. Parliament must have complete freedom to reject a Bill or to amend it in any way it thinks fit. Law Commissions and other committees and commissions are advisory bodies alone. It is for the Legislature to legislate in the light of that advice and to accept or reject it.
If Parliament substantially amends a Bill, reference to the Law Commission's report on which the original version of the Bill was based will obviously be less valuable than if there had been no amendments. I would have thought that was a very clear proposition.
But in the case that may be a hypothetical case where the draft Bill comprised in the Law Commission's report 520 is substantially acceptable to Parliament after a debate, Committee stages, and so on, we think that the reference to the Law Commission's report can be of great value. We think it better that the matter should be dealt with openly and that its usefulness should be recognised. Some critics say that the Clauses will substantially add to the work of legal advisers and, therefore, to the expense which will be borne by their clients. As I have already said, if a point of real difficulty arises a practising lawyer will necessarily have to consult leading textbooks, decided cases and other material in addition to reading the words of the enactment in question. If—heaven forbid —the members of the Law Commission were to die overnight, under existing practice their report would almost certainly be something referrable to by the courts under the category of a text book on issues of law. It is a most artificial consideration that denies reference to the report because of the happy circumstances that the members of the Law Commission survive.
The suggestion that the provision will materially add to the trouble of the practising lawyer or the expense borne by his client if he can openly refer to material which at present he will almost certainly read anyway, and which it would be rash for him to assume that the judges or his opponents have not read, must surely be nonsense.
§ Mr. Edwin Brooks (Bebington)
My right hon. and learned Friend has devoted a considerable proportion of his speech to a matter which seems to have much wider implications beyond the Bill. I speak with hesitation as a non-lawyer, but does not he agree that there is a difficulty in defining a priori the degree of difference which may exist between a Bill as it eventually emerges as an Act and the prototype Bill which may have appeared in the report of the Law Commission? If there is a very substantial difference—and this must be a subjective matter of judgment—possibly reference to the report of the Law Commission on any Act could not merely have less value than had there been no substantial amendment, but could be positively mischievous.
§ The Solicitor-General
I am obliged to my hon. Friend for that intervention. 521 I have already indicated my belief that the more departures there are in Standing Committee from the original draft of the Bill, the less valuable is reference to the Law Commission's report likely to be. I acknowledge that, but that does not lead me, bearing in mind all the relevant circumstances, to the conclusion that it is undesirable to provide in Statute that the court may have regard to the report of the Commission for the assistance of interpretation of the Act. The courts will be well aware of such departures as there have been in Acts passed by the House from the recommendations of the Law Commission. The judges will be well aware of them. They will be obvious from the whole record of the matter.
What we are doing here is to suggest that it is highly desirable to set out clearly that there is a right of the judges to refer to the report to assist them in inerpretation. That is all we are doing. There is nothing mandatory about it; it is purely permissive.
The evidence is that many judges would welcome this proposal. It was Lord Wilberforce who moved the subsection at the Report stage in another place. When the House divided on the Clause, with a majority of 18 in favour, those who voted in favour included—in addition to Lord Wilberforce—Viscount Dilhorne and Lord Morris of Borth-y-Gest. Bearing in mind the support of Lord Denning on the other Bill which I mentioned, this constitutes a very powerful body of legal opinion.
It has been suggested that the Clauses represent an attempt to introduce by the back door the recommendations set out in the joint report of the two Law Commissions on the Interpretation of Statutes in advance of a general debate on the recommendations. The answer is that that is simply not the case. In the debate on the Bill before us, my noble Friend the Lord Chancellor gave an assurance in another place that he was inviting acceptance of Lord Wilberforce's Amendment on the understanding that it was not intended in any way to prejudice the consideration which would have to be given to the report on the Interpretation of Statutes.
The law relating to animals is a complex branch of the common law. What could be more absurd than to argue that 522 lawyers dealing with cases under this head should not have regard to an analysis and study of the common law cases by a body like the Law Commission?
I apologise to the House for dealing at such length, in connection with this Bill, with what is confessedly a rather broad issue of principle, but it arises explicitly in Clause 11(2) and is a matter of great importance. Having regard to the background and complexity of the Common Law to which I have referred, I would suggest that the law relating to animals and liability in connection with animals is peculiarly well fitted and suitable for the kind of provision in that Clause.
§ Mr. Hooson
One matter that the right hon. and learned Gentleman has not dealt with is the definition Clause. I am sure that the whole House has been waiting for him to explain what exactly is meant in the definition of "livestock" by the word "hinnies". Clause 11 says:'livestock' means any animals of the bovine species, horses, asses, mules, hinnies …Perhaps the Solicitor-General could explain what they are.
§ The Solicitor-General
I cannot tell the hon. and learned Gentleman immediately what a hinny is. All I can say is that it sounds a highly domesticated creature.
§ Sir David Renton (Huntingdonshire)
The same point arose during the discussions on the Highways (Provision of Cattle-Grids) Act, 1950, when it was explained by a back-bencher on the Conservative side to another Labour Minister that a hinny is the converse of a mule.
§ The Solicitor-General
How far that clarifies the matter may be open to doubt. All I know is that there are no hinnies, so far as I am aware, in the Edge Hill division of Liverpool.
The Bill does not deal with legal rules known only to the specialists. It concerns ordinary people. It is an important Measure which may at one time or another affect the life or property of almost any citizen. It is my hope that it will not only make the law simpler, clearer and fairer but above all will give a remedy to a significant number of persons who suffer injury in road accidents for which there 523 is at present no redress. If in addition the Bill were to have the effect of reducing the number of road accidents, which it is not altogether fanciful to hope, it will perform a highly desirable service.
I believe that the Bill deserves the wholehearted support of the House.
§ 8.20 p.m.
§ Sir David Renton (Huntingdonshire)
It is a pleasure for me for the second time in eight days to thank the right hon. and learned Gentleman the Solicitor-General for a careful and lucid explanation. But I do not think that I can quite accept his apology for the very heavy broadside, of what I can only describe as debating ping pong balls, which he launched on us in defence of Clause 11(2). I think that many hon. Members, especially laymen, will think it strange that this very important principle relating to the interpretation of Statutes should have been dealt with at such length by the right hon. and learned Gentleman on an occasion when we are discussing the reform of the law relating to animals. I shall later, I hope at rather less length, attempt to deal with this argument.
Meanwhile, and in the presence of the right hon. and learned Gentleman the Attorney-General, I say again, as I said a week ago, that it is extremely regrettable that this important new departure which the Government are trying to advance should be done piecemeal as though they were trying to do it in a kind of "build-up" manner instead of our having a proper discussion devoted to the principle itself. Such a discussion could surely take place on a debate to take note of the Law Commission's 21st Report on the Interpretation of Statutes, which is a very interesting and important document.
Apart from subsection (2) of Clause 11, and apart from the provisions of Clause 8 relating to animals straying on to the highway, I would like to give a general welcome to the Bill and would again like to acknowledge the valuable work done by the Law Commission, this time on foundations laid by Lord Goddard's Committee as long ago as 1953. The Goddard Committee proposals were regarded as in some ways controversial. There are people who think, however, that they were preferable to some of the provisions in the Bill. But further thought 524 and discussion has enabled the Law Commission to produce these proposals which, apart from Clause 8, are more generally acceptable than those put forward by the Goddard Committee.
The Bill is indeed a useful piece of codification of the common law and of reform of the law. Having commented unfavourably on the very long title to the Matrimonial Proceedings and Property Bill a week ago, I must say how I admire the way in which the long Title has been drawn in this Bill. It does, within the scope of the subject, although it has a fairly limited scope, give us much more freedom to move Amendments at a later stage. That is a much better model of a long Title.
In relation to the drafting of the Bill generally, I think that hon. Members will be glad that we have got rid of those Latin expressions which are so familiar to lawyers and surprisingly well understood by them on most occasions, despite what the learned Solicitor-General said. The Bill, as he rightly pointed out, affects a very large number of our people; indeed, it affects potentially every household in the country because almost every household either has had a dog or would like to have one.
I come now to the real point of controversy on the substance of the Bill, the application of Clause 8 with regard to livestock straying on to roads. Its application is difficult, especially in hill farming country. It seemed to me that the common law, in spite of its antiquity and obscurity on some points, was probably well suited to the problems of rural life until the coming of the motor car. When the motor car came, it was regarded as something much worse than a dangerous animal. Many people still regard it as the most dangerous animal of all. It causes more pain and suffering than animals have ever done in this country, despite the fact that the motor car is much easier for man to control than most animals are.
However, we have to acknowledge the fact that the day is long past in our highly motorised society when we can say that all owners of cattle, sheep, horses and dogs shall always have complete priority in all circumstances over the motor car on the highway. That day, whether we like it or not, has passed. It is on that assumption that, in my 525 opinion, we should consider Clause 8 and, indeed, some of the other parts of the Bill too.
As a Member for a large rural constituency, I am deeply conscious of the doubts and, indeed, the fears of the National Farmers Unions and many of their members about Clause 8, and I think that the Government must try to set these doubts and fears at rest. They can do so up to a point by careful explanation of the principal effect of the Clause, but I think some amendments are needed to clear up certain matters which are, to me at any rate, still obscure, and I know that they are obscure to others as well.
The first thing to point out to all animal owners is that no farmer will be liable for damage or injury caused by his animals straying on to the road unless negligence is proved against him. It is perfectly plain from subsection (1) of Clause 8 that the burden of proof will, at any rate at first, be upon the plaintiff. It will be upon him to prove that the farmer was negligent. It will not be upon the farmer to prove that he was not negligent.
But the question immediately arises of how will the courts interpret subsection (2). As the right hon. and learned Gentleman did riot in detail go into the five sub-paragraphs (a) to (e) inclusive, to which regard must be had in determining negligence, I think that I should refer to them in detail because I shall have comments to make about especially the last of them. But perhaps I am doing the right hon. and learned Gentleman an injustice. He made a passing reference to the first three of them and I think that he omitted reference to the last one.
§ Sir D. Renton
I am obliged to the right hon. and learned Gentleman. I was perhaps trying to take too careful a note of what he was saying. Let us consider the last sub-paragraph because it is really the important one. This very important matter of fencing, which the courts must have regard to and which has been the subject of amendment in another place, was not in the minds of the Law Commission, and on this point, which is perhaps the most difficult point in the Bill, reference to the report of the Law 526 Commission will not avail anybody because the Law Commission did not mention it in this context. It arose in another place. May I just read it:(e) the seriousness of any such risk and the steps that would have been necessary to avoid or reduce it, and, where it could have been avoided or reduced by fencing, the extent (if any) to which fencing is the normal practice in the area in which the land is situate;The words "if any" are very important, although they are in brackets.
Let us consider the meaning of the words "the normal practice in the area". There is a much older phrase which means exactly the same—"the custom of the country". The custom of the country is what our common law is based upon so, although the Bill purports to replace the common law, it does in this respect bring us back to its very foundation.
Applying those provisions and the custom of the country to those considerable and still lovely and unspoilt areas of our country where, on hill farms, sheep and cattle graze on unfenced lands, it seems to me—and I should be glad if the Solicitor-General could confirm it—that, if it is the normal practice in the area, the custom of the country, not to have any fencing, a farmer cannot be expected to provide any. I am talking now of the practical, physical difficulty that arises. It is a difficulty first in relation to cost. It would have to be pretty stiff fencing of the kind now being erected by the Ministry of Transport along the side of trunk roads, and fencing of that kind now costs about £800 a mile to erect in fairly accessible country. The cost is greatly increased if it has to be erected on rocky hills and in inaccessible places. The farmers cannot be expected to incur that sort of cost, and I shall be glad to know from the Solicitor-General if the Government accept that farmers cannot be expected to incur such costs.
Incidentally, it rather spoils the scenery, and those of us who are keen about amenities have doubts about forcing people to put up fencing which is extremely expensive and perhaps not necessary, quite apart from the fact that it is not the custom of the country to have it.
§ Mr. Abse
A great many hon. Members on this side of the House are concerned with the amenity of the people who live in townships in areas of this 527 kind, and they put people before sheep. Will the right hon. and learned Gentleman, since he is speaking from the Front Bench opposite and not on behalf of his own rural constituency, direct his mind to the point that farmers should be restrained from over-stocking and being careless about looking after their animals in areas which are immediately adjacent to industrial areas? In that respect the Clause is clearly one in which the question of fencing is comparatively irrelevant.
§ Sir D. Renton
I would not say that the question of fencing is irrelevant, even in the circumstances which the hon. Gentleman mentions. With great respect, when he reads HANSARD tomorrow, he will find that he was diverting me on to a slightly different point from the one I was on, but, to a limited extent, it is a point I shall come to.
§ Mr. William Baxter (West Stirlingshire)
A point of principle is involved here. The right hon. and learned Gentleman rightly points out that it would be a costly operation to fence hills and valleys where sheep and cattle have roamed for centuries, and that it would cost roughly £800 a mile. Where it is necessary to put up a fence, should not the onus of responsibility for the erection and maintenance of the fence be the responsibility of the Minister of Transport, in view of the right hon. and learned Gentleman's previous statement that it is the car which makes it necesary for the fencing to be there?
§ Sir D. Renton
That is another fascinating red herring. In any event, I am in the happy position of having only to try to make constructive criticism. I am not the answerable Minister—at least, not now! May I suggest that these interventions would have been better made when the Solicitor-General was speaking. I do not see why I should be diverted from a theme which I am trying to develop as patiently as I can to deal with the difficulties, which I appreciate, of other hon. Members.
I have asked the right hon. and learned Gentleman to confirm that the Government accept that it would be unreasonable for farmers in hilly areas to spend these enormous sums on fencing roads which are unfrequented to any great extent by motorists. Will he also confirm that, on 528 his interpretation of the Bill, such farmers will not be liable in negligence within the terms of Clause 8 if they do not do any fencing? It is important for us to know that. It would seem that that is so by the wording of subsection (2)(e).
The various matters to which the court must have regard are carefully set out, but how, if at all, do they affect the burden of proof? That is not made clear in the Bill, and it should be made clear at a later stage. Farmers fear that, although it may be for the plaintiff to make a prima facie case under Clause 8, when it comes to dealing with these other matters, the burden of proof will be upon them. That is what we shall have to make clear, unless the Solicitor-General can assure us tonight that the burden of proof never will be upon them. If he gives such an asurance, I would prefer to see it written into the Bill, whatever the Law Commission may or may not have said about it.
§ Mr. Gordon Oakes (Bolton, West)
Is the right hon. and learned Gentleman suggesting that the words that have been added in the other place to the draft Bill of the Law Commission should be deleted? If so, I would agree, but on a different argument. The right hon. and learned Gentleman speaks of farmers, but in my constituency and that of my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) and that of my hon. Friend the Member for Bebington (Mr. Brooks) we do not have "hinnies" but we do have dogs. It is not the normal practice of the area to fence round housing estates. Is this an escape Clause to allow every dog-owner who lives on a housing estate to let his dog run round? That is the sort of position this difficulty with farmers has led us into.
§ Sir D. Renton
The hon. Gentleman has mentioned another difficulty. One could spend a good deal of time answering the points which arise on that. I will answer only that point which he put specifically. He asked whether I thought that the words which had been added since the Law Commission had made its draft Clauses should be deleted. No, I do not. They should remain there. Those words were an improvement of the Bill. None of my hon. Friends is likely to disagree with that. What should be made plain is how paragraphs (a) to (e) affect the burden of proof.
529 In the Lords, the way in which special treatment is given to common land and village greens in the last two lines of Clause 8 led to some doubt. It has drawn attention to the contrast between the blanket exemptions when animals graze on commons and village greens and the rather difficult issues which will have to be decided by the courts on the question of negligence in the earlier part of the Clause. I am fairly happy about this, but I know that the National Farmers Union and a number of those who spoke in another place are not happy. At any rate, it might be better to set all fears at rest by redrafting the last part of the Clause.
I will deal with one point which the hon. Member for Pontypool (Mr. Abse) mentioned, although not in the way in which he would like. One realises that in open hill country farmers do not want their cattle injured by cars. Nor do they want their cattle to injure motorists. It therefore seems relevant in the context of this difficult problem to consider what steps can be taken within the framework of the existing law to make the lives of the cattle, the motorists and the dogs a bit easier in this hill country.
It is not the same sort of problem as arises in East Anglia, where I live. We have our commons, and people know where they are. The commons are mostly unfenced. They generally have roads or footpaths going through them, and we have all become accustomed to using them, and accidents are extremely rare. So the problem to which I am going to refer is essentially one in hill farming country.
Under the Highways (Provision of Cattle-Grids) Act, 1950, which has now been replaced, without substantial change, partly by the Highways Act, 1959, and partly by the Agriculture Act, 1967, arrangements and grants were proposed by Parliament to enable cattle grids to be inserted by highway authorities and local authorities on public roads and on land adjoining so as to prevent cattle from straying on to the roads. It was hoped that, in this way, considerable areas of additional grazing land would be brought into agricultural use in hill country without the risk of damage by or to animals.
530 In 1967 we had the Provision of Cattle Grids (Payment of Grants) Regulations. They were not the first of their kind: they replaced previous ones. If the Solicitor-General can say what is being done by way of implementing the Act and what grants are being paid, this would be relevant to our debate and very helpful. Perhaps I am asking too much at too short notice, but between now and Committee he should arm himself with pretty full information on this point.
I apologise for having spoken at considerable length on this, and longer than I had intended, but I am afraid that the interruptions made this inevitable. Certainly, Clause 8 is still controversial and difficult to interpret. Speaking as one who practises in the law, I think that it will give rise to difficulties over the burden of proof unless there is clarification.
I should like to pass on to the question of the Law Commission's reports being used for interpreting our Acts of Parliament, and this one in particular. Since a week ago, when I found myself in disagreement with the Solicitor-General, I have, like him, given the matter a great deal of thought. I take note of what he says, but I do not accept it. I think that the right way to consider what sources should be available to the courts is to draw a clear distinction between, on the one hand, Acts of Parliament and the reports of cases decided by the courts and, on the other hand, all the other available sources, lumped together and given no special status.
I would put a good modern textbook like Archold's Criminal Law—which is the criminal lawyer's bible—Halsbury's Laws of England and Halsbury's Statutes in just the same position as the Law Commission reports. I would put them all on the other side of the line from the Acts of Parliament and the decided cases. In some ways, the Notes to Halsbury's Statutes will be more valuable than the Law Commission reports, because those are comments made on our Statutes when the final versions of them are available after the Royal Assent. With the Law Commission reports, nearly always we shall find that changes have been made by the process of going through Parliament. To the extent that changes are made, they will lead to doubt and difficulty in discussion if we 531 give them a special status for the courts to consider, even though it is only permissive.
I have drawn attention already to the fact that, although admirable, the Law Commission is not infallible on the Bill. What is said to be one of the most important points about the custom of the country with regard to fencing was not put in by them as one of the matters to which regard should be had in deciding negligence.
I suggest that the Law Commission reports should not be given special status. We should draw the line clearly, as I have said. Following the splendid example of the hon. and learned Member for Mongomery (Mr. Hooson), I will give an undertaking to keep an open mind. I implore the Lord Chancellor and the Law Officers to do the same. Do not let us try to insinuate subsections into Statutes dealing with quite separate matters when there is an important principle at stake which should be discussed on its merits.
I congratulate the right hon. and learned Gentleman on having had the opportunity to move the Second Reading. We will give him constructive help in the passage of the Bill through its various stages.
§ 8.49 p.m.
§ Mr. Arthur Probert (Aberdare)
I shall not wander into the highways and byways of whether we should accept the inclusion of reference to the Law Commission's report.
We have listened—I say this with respect—to two very long but erudite speeches.
I propose to be as brief as possible in illustrating the real difficulties facing the people in South Wales concerning straying animals.
It is with great pleasure that I support the Second Reading of the Bill, although, having heard the two speeches, it is with some trepidation that I think the Bill will do what many of us hope. However, as my right hon and learned Friend said, it will have a salutary effect. This is the fervent hope of many of my hon. Friends concerning the problems which I will illustrate shortly.
The Bill is the culmination of many years of hard and persistent work by 532 many of my hon. Friends who are present this evening. But it is right to say at the outset that we owe a debt of gratitude to the Lord Chancellor and, indeed, to the Government for fulfilling their promises in bringing it forward.
In a purely legal sense the Bill offers a radical change and departure from the old. As has been said in another place, the time has come for the law to be brought up to date with modern Statutes, for too much of our law was made in the days of antiquity when society was of a very different form and, indeed, when modern roads and methods of transport were not known.
As the law stands—I want to put this in layman's language—there is no liability on those who own animals to take the slightest care to stop them straying on to the highway. This is the kernel of the problem. This is a relic of the days when modes of travel were on horseback, walking, or by stagecoach.
It is worth remembering that in Scotland the position is different. The principle laid down in Clause 8 is already in existence in Scotland, and it has apparently caused no difficulties. Therefore, I do not know what the farmers in England and Wales are worried about—[Interruption.] In other parts of the world, too, but I am talking about the United Kingdom. Why should the farmers express such fear? Why should we lag behind Scotland in this respect as we do in so many other ways? There is a duty on those who keep animals to take reasonable care that they do not escape upon the high road.
§ Mr. W. Baxter
I am aware that the Bill with all its implications does not apply to Scotland, but the farming community in Scotland carries certain responsibilities. The problem is that the many miles of additional roads which have been provided and the heavy expense of providing the fences in the first place and keeping them in good repair means that it is almost impossible for a farmer to keep stock near the road. This adds considerably to the burdens of the Scottish farming community. My considered opinion, for what it is worth, is that as the farms and the animals were there before the roads for vehicular traffic, if it is necessary to put up fences and to maintain them then it should be 533 at the expense of the folk using the roads in Scotland, England and Wales.
§ Mr. Probert
I do not want to enter into a debate on what is happening in Scotland. I do not accept that the farmers should bear the expense of fencing. Who is to bear the expense where fencing is necessary is another matter. I have much sympathy with the farmers over this matter as with the rest of the public.
Clause 8 is the kernel of the Bill. But I have much trepidation about the Clause because it has been hedged around with so many conditions that many irresponsible people will be able to escape from the responsibilities that the farming community desires they should have. I think that the farming community has been ill-informed. Nevertheless, Clause 8 represents a complete break with the existing law.
About nine years ago I attempted to introduce a Bill containing provisions similar to those in Clause 8. I found to my cost how intricate and complex the matter was, but that is another issue. What appalled me at the time was the statistics which became available, and the correspondence which I received from many parts of the United Kingdom. The Bill received support from both sides of the House, as the debate on it will show, but I was appalled at the number of accidents which were occurring day in and day out involving straying animals. I discovered that each year hundreds of people were being killed or seriously injured in road accidents caused by straying animals.
Perhaps I might give two or three sets of figures to show what is happening in South Wales. For various reasons, Glamorgan and Monmouth are particularly vulnerable to straying sheep and ponies. In a recent year, 1,500 road accidents were caused by straying animals. In the constituency of Merthyr Tydvil, in one year 40 per cent. of the accidents on roads were attributable to straying animals.
I come, now, to the other side of the picture. What about the suffering caused to the animals themselves? Indeed, what about the cost to farmers? I have every sympathy with them. Anyone living in the valleys of South Wales, or travelling through the constituency of my hon. 534 Friend the Member for Brecon and Radnor (Mr. Tudor Watkins), which is a continent in itself, must be aghast at seeing the number of dead sheep and ponies on the roads. In one year in Glamorgan 3,000 animals were killed or injured, and one cannot be surprised that the R.S.P.C.A. has taken such an active interest in this problem.
I hope that the Bill will have a salutary effect, but it is not directly concerned with one aspect of the problem. People have a certain protection, but very often they cannot prove guilt to obtain it. I am thinking of the suffering endured by people who find a year's hard work in their gardens destroyed overnight by the depredations of straying animals. I have suffered this myself, and I know what it means. The law provides that a person can claim damages, but the difficulty is to catch the animals and prove to whom they belong. Clause 8 will help to make farmers more conscious of the need not to let their animals stray.
The interests of farmers and of the general public are bound together, and I appreciate the sincerity of the farmers in my area, and in many parts of South Wales, in their desire to find an answer to this problem. They produced an excellent report some years ago, and it is worth reading to those who have not seen it. It is no good pretending that the Bill will solve the problem. It is only a beginning, and much more will have to be done in the years to come. The Commons Registration Act, 1965. was a step forward, because it provided for the delineation, in a precise form, of common land and other open land, and the Bill will help to provide legal redress for negligence on the part of animal owners, but what I think is needed is co-ordination of policy between the neigbouring local authorities and the farmers themselves. This will do much more than any Measure passed by the House. Local authorities must study the fencing problems in their areas. Cattle grids have been mentioned. A far more strategic placing of cattle grids should be considered by local authorities.
The public must be educated in this matter. Farmers have tried to do this, but how often have we seen people inducing cattle to stray on to the verges of a highway by feeding them? One can see this every day of the week on Brecon 535 Beacons. For many years local authorities have carried on a policy of fencing-out, based on the fact that animals tend to wander into the streets. In my opinion, a policy of fencing-in would be far more effective. The question of fencing is the key to this problem.
As an example, let me tell the House that a farmer friend of mine recently spent hundreds of pounds in putting up hundreds of yards of brand-new fencing on a farm bordering the constituency of my hon. Friend the Member for Rhondda, East (Mr. G. Elfed Davies). One night some hooligans came along and ripped out three or four yards of that fencing. As a consequence, hundreds of sheep poured through the gap into the streets and down the valley. I saw this with my own eyes. The fault is not only with the farmers; it lies also with the public.
There are many details in the Bill about which it is possible to quibble. From the two opening speeches it is clear that many points will have to be thrashed out in Committee. Nevertheless, I thank my right hon. Friend, as well as the Lord Chancellor and the Government, for fulfilling a promise that they made some time ago to bring forward this Measure, especially since this Session is full of important legislation.
A working party must be set up to consider the wider problems of straying animals, and, in my opinion, that working party must include representatives of local authorities and farmers. If that is done we can achieve much more than the Bill can achieve now. This possibility was considered by the Welsh Office. I put down a Question in June, 1968, when the Secretary of State for Wales told me that it was being considered. I repeat this request. I hope that my right hon. Friend and the Minister of State will discuss this question, because Clause 8 will not solve the problem in South Wales. The Bill represents only a beginning. If we can achieve co-ordination between farmers and local authorities we can go a long way towards finding a solution to this problem.
§ 9.3 p.m.
§ Mr. Michael Shaw (Scarborough and Whitby)
Like earlier speakers, I welcome most of the provisions of the Bill. 536 It is a small but important Measure, dealing with a situation that for a long time has been vague and unsatisfactory. I particularly welcome Clause 9. The protection of livestock from marauding animals has become an ever-increasing problem on farms, especially as more and more people seems to be obtaining bigger and bigger dogs. We have only to see the horrible result of the savaging of a flock of sheep by an alsatian or other big dog to realise how serious a matter this is for the farmer.
I hesitate to join in the discussion of Clause 11(2), which seems to be a lawyer's treat. Indeed, the lawyers in the House have made the most of it tonight. Since, according to this provisionregard may be made to the Report of the Law Commission on Civil Liability for Animals",what will happen if future legislation does not contain a provision enabling regard to be made to such a report relating to it? We seem to be getting into deep water over this, and I am not sure what will happen if future legislation in this way differs from the Bill.
The matters dealt with in Clause 8 are causing considerable concern to farmers in my constituency, as they are to farmers in the North of England generally and particularly in North Yorkshire. In my constituency there are miles of unfenced road going through land on which livestock has been grazed for centuries. I sympathise with the doubts that have been expressed by the farming community about Clause 8.
In the past the position about unenclosed land has been clear. For several years after the passing of this Measure the position will be unclear. The farmers of whom I am speaking have for some years found it difficult to pay their way, what with increased credit restrictions, increased costs and lower incomes. They will find it extremely difficult if they are asked to bear additional expenditure for fencing and so on.
The Bill seems to exclude from liability animals straying on to the highway from common land, but not from unenclosed land.
§ Mr. Shaw
I am glad to hear the hon. Gentleman's observations, and I hope that he will have an opportunity to elaborate them.
I understand that, prima facie, a farmer will be liable if his animals stray on to the highway from unenclosed land. My right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) said that a plaintiff would have to prove absence of care, but it seems, certainly during the early years of the operation of the Measure, that farmers will be in doubt about their duties and the degree of exception given by the Bill. Until it is known whether or not the farmer is completely absolved from liability, in certain cases he will not be free from doubt. I believe that that knowledge will come only when one or two cases have been tested in the courts.
Therefore it seems to me, as a layman. that it would be far more satisfactory if the liability was clearly spelled out, or if the exemption was equally clearly spelled out, so that the farmer knew exactly where he stood over this.
It must be a matter of doubt because the Law Commission's report itself says at pages 25 and 26:We appreciate that our recommendation would mean, in practice, that prudent farmers and other keepers of animals would feel obliged to insure against the risks involved.In other words the report accepts that there is a doubt. It goes on:We should have liked to give some indication of the cost of insurance; but, owing to the lack of precise statistical information, to which we have referred above, the insurance organisations that we have consulted have been unable to tell us at this stage what premium might he charged in different circumstances.Here we have a doubt; we have a possible liability and we have the evidence of the Law Commission's Report No. 13 that this matter of insurance has been looked into and the commission has been unable to come to a conclusion on whether the farmers can insure against possible liability, and, perhaps even more serious, what the cost would be if they could.
It would be wrong to go further into this tonight. But I believe that this matter must be investigated in some consider- 538 able detail in Committee before universal approval can be given to everything in the Bill.
§ 9.12 p.m.
§ Mr. Tudor Watkins (Brecon and Radnor)
I should have liked to follow what the hon. Member for Scarborough and Whitby (Mr. Michael Shaw) said. He will find, as I go along, that I agree with what he has been saying about Clause 8. I do not wish to disappoint my hon. Friends but I heartily agree with them on the real necessity of bringing in a Bill of this nature but I differ with them over Clause 8.
It was a great pleasure for me to hear my hon. Friend the Member for Aberdare (Mr. Probert). I well remember the valiant efforts which he made in 1961 to introduce a Bill of this kind. At that time I was not altogether with him but I am sure it is a pleasure for him to see this Bill before the House now. I must pay tribute to my hon. Friends from South Wales for the pressure they have put on various Ministers during the last few years to introduce this legislation.
I gather from the remarks of some of my hon. Friends that they are not altogether satisfied with Clause 8. But there is one great thing about Clause 8. When one reads the Law Commission's Report on Civil Liability for Animals one sees perhaps for the first time—it is the first time I have seen it because I am not one who delves into Law Commission reports—a draft Bill. I could suggest to the Secretary of State for Wales quite a number of draft Bills—even on local government reorganisation.
Parts of my constituency in Breconshire are vitally interested in the trespass of animals in gardens and allotments. Whatever I may say about Clause 8 does not mean that I do not welcome the introduction of the Bill. But, as my colleagues know, I have always endeavoured since I have been in this House to keep a watching brief on the results of any legislation for hill farmers. I must also declare that I am not altogether satisfied with the position of unfenced land.
The question of common land has just arisen and I am anxious to hear what my hon. Friend the Member for Pontypool (Mr. Abse) has to say about this and what the Solicitor-General will say 539 in reply. I have assumed that common land is completely out, and the controversy is about Clause 8, so far as I can see, theDuty to take care to prevent damage from animals straying on to the highway.On Second Reading in another place, the Lord Chancellor gave a wonderful exposition of the Bill's provisions. He raised the query: what should be the legal relations between those who keep animals and those who may be killed or damaged by animals? That is covered by Clause 8(1), and I say at once that, as I see it, there is an extra liability on hill farmers.
Nowadays, the relationship between road users and users of land has some dangerous aspects. The Law Commission points out that between 1961 and 1966 54,000 sheep were either killed or injured. In my own constituency, on the road referred to by my hon. Friend the Member for Aberdare, through unenclosed land on the Brecon Beacons, a survey among 19 farmers in the 12 months ending 31st August, 1965 revealed that 320 sheep, 13 ponies and four dogs were killed by vehicles, to a total value of about £2,000.
I ask the House to consider what attempts have been made to prevent sheep trespass. There has already been reference to the report by the National Farmers Union in Glamorgan and Monmouthshire in 1962. Perhaps my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) will allow me to tell the House what that report says about the cost to Ebbw Vale Urban District Council. The cost of fencing housing, school and recreational land and other requirements came to £200,000 in 40 years, all in an effort to stop trespass by sheep.
Although, in my opinion, common land is excluded, sheep may still come along the highway to graze in other parts. I was interested to hear what the right hon. and learned Gentleman the Member for Huntingdonshire (Sir D. Renton) said about the Highways (Provision of Cattle-Grids) Act, 1950. I took part in the debates on that Act, and I am glad that it came into force at that time, because, with a majority of six, it was not all that easy to get much legislation through. But 540 in Senni, a place well known to hon. Members from Wales, sheep are not now crossing the cattle-grids. One ingenious farmer has stopped his sheep at least coming down by putting some pretty colourful fertiliser bags on the grids past which the sheep will not go. Perhaps they think that the feminine population of the village has come up to protect the grid —I do not know.
In a way, I wish that the Attorney-General were here, with his Welsh background, to help us. A sheep's instinct makes it travel to the places where its ancestors pastured. Is not that correct? Perhaps that is the reason why sheep come down to Pontypool, Rhondda and Aberdare, now that the Industrial Revolution has cleared away all the agricultural land which used to be there. There must be something in it. Instinct makes a dog turn round a few times before he lies down. What about the instinct of the sheep? Whatever we may think, no legislation can stop that.
By this vulnerable Clause 8, the Lord Chancellor has made valiant attempts to safeguard the farmers' interests, but he has not gone far enough [HON. MEMBERS: "0h."] I almost think that I am in chapel as I hear the deacons murmouring by my side. There will be hardship. There is unfenced land in my constituency, and for one owner I know it will be difficult to fence the land. It is not common land; it is private land, but there are no fences. In North Radnorshire, in the Begiuldy parish, there is unenclosed land belonging to the Crown. Is that exempt? By custom, the thousands of acres in that area are not fenced at all. These are small marginal farms.
The expense of fencing is £800 a mile, and then there is the cost of maintenance. It is impossible to fence where an occupier has land on both sides of the road, since sheep will want to cross for watering. There would have to be many points of access. I wonder whether my hon. Friend the Member for Pontypool would elaborate on what he promised his constituents in an interview in the South Wales Argus, that he would give every support to getting grants for these fences on unfenced roads. Could these grants be made under the farm improvements scheme? It does not seem to be possible.
At the beginning of the century it was calculated that there should be one 541 shepherd for every 150 sheep. One cannot get those shepherds now, so there is a lot to be done to keep the sheep in the farms. Insurance is a great problem. My hon. Friend the Member for Pontypool said that it would not cost more than £5 to insure against this new liability. I challenge him to name the company which offers those terms, since collecting the premiums would be a good job for me when I am retired. I cannot think that that is possible.
A number of farmers on the Brecon Beacons cannot get insurance at all for sheep wandering on trunk roads. Where they can, they have to agree that the first sheep will not be covered. Thus, if only one is killed there is no hope of being paid. This new liability will be a burden on farmers. The average loss on this road is £300 a year. One farmer who cannot get a premium loses on average 25 sheep a year.
I was glad that the right hon. and learned Member for Huntingdonshire (Sir D. Renton) talked about the normal practice in farming with regard to fencing. I do not like my farming constituents to have to go to court to decide normal fencing practice. Some highways across Ministry of Defence land are not fenced. The owners of sheep which are brought on to the land pay charges to the Ministry—so much per head per year. If the Minister was obliged to fence those lands where the county council was highway authority and maintained the roads, he would have to pay a terrific sum.
Last weekend, when I was coming over one of our mountain roads which is fenced on both sides, a fox suddenly ran across the highway. If that had caused an accident to me, would it have come within the provisions of the Bill? After all, a fox is an animal.
Farmers keep registers of earmarks of sheep, and I suggest that similar registers should be kept in respect of ponies. When ponies are under the snow no one wants to identify the animals as being theirs, but when the good days come along again the owners soon drive them down to markets.
Another point is the maintenance of stock-proof fencing on the motorways, and in this connection I have in mind the Heads of the Valleys road. The other day a constituent complained to me that 542 because of the stock-proof fencing she was not able to take her dog for a walk on that road, which is not a motorway in the same sense as is the Ml. But then a farmer close by complained that the stock-proof fencing does not prevent his sheep getting into the road. What I did was to refer the writer of the one letter to the writer of the other.
A working party should be set up to look into the whole matter. An understanding among farmers is preferable to legislation, and education authorities could play their part in many ways, particularly with regard to the feeding of sheep, ponies and other animals within national parks.
§ Several Hon. Members rose—
§ Mr. Speaker
Order. We shall probably suspend the Rule at Ten o'clock. I remind the House that the night is young, but not everlasting.
§ 9.27 p.m.
§ Mr. Paul Hawkins (Norfolk, South-West)
It is almost impossible adequately to follow the delightful, witty and wise speech of the hon. Member for Brecon and Radnor (Mr. Tudor Watkins). I was fortunate enough to drive through his constituency on two occasions last year, and I was shocked to see so many dead sheep by the side of the road. In East Anglia we do not have roads of this kind passing through that type of land.
I give the Bill a general welcome. In certain respects it is long overdue, and it will clarify quite a number of difficult points. In particular, I welcome Clause 9. There have been an enormous number of bad outbreaks of sheep and poultry worrying by dogs. More and more people seem to keep dogs for a certain length of time, but when the licence has to be renewed or when they are about to go on holiday they let their animals roam free and never again assume responsibility for them. It is becoming an extremely worrying problem all over the country. Even in my fairly sparsely populated countryside we are getting what are almost packs of dogs that have been abandoned, and they cause an immense amount of damage.
In the built-up areas and on the autskirts of towns, dogs are also the cause of many bad accidents, and we must very carefully consider how we can deal with 543 that problem. One can usually trace the owner of a dog, but I do not know whether one could trace the owner of a cat. Cats cause a large number of accidents. It is as difficult to trace their owners as it would be to trace the owner of a fox.
Clause 8 will cause a great deal of controversy. I hope that the Committee will consider the remarks about it made by the hon. Member for Brecon and Radnor. In an area where there are a lot of sheep or ponies, fencing ought to be considered both by the owners of gardens, for their own sake, and in a wider area by the owners of stock near to towns. On land adjacent to open roads such as there is in many parts of the hon. Member's constituency, fencing would be quite impossible. It would make the farming of those areas quite uneconomic and it would spoil the enjoyment of the whole countryside by tourists.
Coming back from Swansea I saw a sheep killed on a road. A man drove by me on a fairly wide, winding road at about 80 miles an hour going downhill. There were notices saying that motorists should beware of sheep and other straying animals, but he knocked the sheep over and killed it and did not attempt to slow down. Driving in the countryside has become extremely bad. When I was younger I was lucky enough to be able to ride. In those days one always found that motorists would pull up and take great care when passing riders on the grass verge.
I have spent a lot of time driving animals through the streets of King's Lynn. A large number of cattle would come through from trains and be taken in the dark for lairage before they were sold the next day. The consideration and courtesy which one had from motorists and others was extraordinary, but today there seems to be quite a different breed of motorists. They do not seem to take much care when they pass flocks of sheep or people moving cattle or when sheep or ponies may be passing across open land. This is the cause of many accidents.
I welcome most of this Bill. I hope that we shall go carefully into Clause 8 to see that we satisfy as many people as possible. It is a difficult Clause. I hope 544 that a practical and sensible attitude will be adopted so that as many farmers and townsmen who live near open land may be considered and that we can get a satisfactory Bill.
§ 9.34 p.m.
§ Sir Barnett Janner (Leicester, North-West)
Seven years ago, after my hon. Friend the Member for Aberdare (Mr. Probert) had started the ball rolling, I asked leave of the House to introduce a Bill dealing specifically with items included in Clause 8 of this Bill. Since then on seven occasions in seven successive years the House has given me permission to introduce Bills. When I heard my right hon. and learned Friend the Solicitor-General today speaking about Clause 8 I hardly knew whether it was he or I who was speaking. I thought it might be a ventriloquist act performing some of what I said about eight years ago.
How can hon. Members overlook the fact that considerable damage and death is caused by animals straying on to roads and that the law has at no time given protection to the dependants of those killed or to the persons injured? I do not understand why legislation has not been introduced before, if learned judges who have considered the cases on this subject, have, when they have made any declaration at all, invariably declared that the law should be altered. If only some of those who have spoken against Clause 8 had received some of the poignant letters that my colleagues and I have received from those who have suffered because of the lack of compensation they would have changed their minds. Negligent farmers, or people who are not farmers, who have allowed cattle or horses to stray on to roads because of negligence, thereby causing injury, have been liable to petty fines but not liable to pay compensation to those who have suffered damage. I wish that hon. Members would bear this in mind in considering what approach to take to the Clause.
In view of the time, I shall resist the temptation to read again some of the letters I have received on this subject and other letters which I have not yet read in the House. Those who have spoken against Clause 8 or who want it damped down to such an extent that it would be ineffective would do well to read the letters that I have quoted on 545 previous occasions and some of the decisions and comments made by learned judges and others, which have been supported by the Law Commission.
In some areas it would be difficult to require farmers to fence, but there is no reason why steps should not be taken so that roads which adjoin unfenced land there should be so clearly marked, either by the occupiers of the land or by the local authority, as to place the onus upon persons entering the area, to be cautious.
Fencing is very important in certain areas. I read what I told the House in 1968 about the New Forest.
When parts of the New Forest were fenced in, the statistics for accidents on one of the lengths of trunk road so fenced, given by the Hampshire and Isle of Wight Constabulary, showed a fall in the number of accidents in which animals were involved. The figures before the fencing was completed on 1st July, 1964, were: 1961, 81 accidents; 1962, 94; 1963, 80. In 1964, the number of accidents was reduced to 35, and in 1965, the first full year of fencing, the number fell to three. In 1966, one accident took place."—[OFFICIAL REPORT, 11th December, 1968; Vol. 775, c. 437.]I bring that to the notice of those who use the question of fencing as the argument against the provisions of Clause 8, and ask them to consider alternatives. Fencing is worth while wherever it can be put up. The figures I have given make it obvious that the drop in the accident rate can be tremendous. Accidents can almost be eliminated if fencing is provided in certain places.
§ Sir Douglas Glover (Ormskirk)
The hon. Gentleman will appreciate that fencing of the roads in the New Forest probably involved 100 miles, but that to do the same thing in Scotland would probably involve 10,000 miles.
§ Sir B. Janner
If the hon. Gentleman reads the Clause again he will see that fencing is covered by the provisions.
I believe that the restrictions in the Clause are greater than they should be, and that in Committee we must devise a method by which people will not be able to avoid paying compensation because the person claiming it cannot for financial or other reasons take proceedings.
There is another, very human side to the matter. People who are injured, or the relatives of someone who has been 546 killed, must not be placed in the position of having to depend on the decision of the court and possibly the Court of Appeal and the House of Lords, as to whether there is liability because of the uncertainty of the law. These are things that we shall have to consider very carefully. I see hon. Members opposite nodding assent, but I do not think that I mean exactly what they mean. They will see what I am driving at when I say that it is very important that we should restrict the possibility of people being prevented from obtaining compensation because of lengthy litigation. By the time such litigation is over the moneys awarded may well not be needed any more, because the injured person or the relatives of a person killed are dead.
Clause 8 is a very belated response to appeals that many of us have made, but it is a response. What I am saying is an accusation against both Governments. Neither side of the House has accepted the appeals I myself have made for years, as have others, except to the extent of saying, "This is all very nice. We think that you should be allowed to introduce a Bill". Then some hon. Member calls out "Object" when Second Reading is proposed, and there is an end of the matter for that week, and so on from week to week for Session after Session.
I shall not speak about the other Clauses, but I am very glad that at long last Clause 8 has been introduced. I hope and trust that it will be made sufficiently strong to prevent delays which stop those entitled to compensation from receiving it. If a cabbage in a field is destroyed because of a farmer's negligence, the owner can obtain compensation, but one may not get anything from him if his negligence results in the destruction of a life. These things are a great and important issue to thousands of people. I hope that hon. Members opposite will realise that as well and do what they can to see that an effective compensation system is set afoot. If that is done, we shall remedy an evil which has existed for many years.
§ 9.45 p.m.
§ Sir Douglas Glover (Ormskirk)
I was driving home from this illustrious Chamber about two years ago, and if I had been thinking about the speech which 547 the hon. Member for Ormskirk (Sir D. Glover) had made, I would probably have been driving at 60 m.p.h. and would probably, therefore, not have been here tonight. Turning a corner, I found a mad bullock galloping towards me at about 20 m.p.h. But at the time I was thinking about the brilliant speech which had been made by the hon. Member for Brecon and Radnor (Mr. Tudor Watkins) and so I was travelling at 40 m.p.h. I was able to stop without hitting the bullock. But the incident brought to my mind very graphically the dangers of this problem on the road. I was a shaken man on the last 10 miles home. My car stopped about 6 inches from the bullock, and I could easily have been killed or injured.
We are right to do something about this. The answer to it is that we have to accept—and, of course, we hate to say this—that there is a commercial value to life, a viable value, as it were. The answer for hill farmers and others is to be insured against this sort of fatality. I am sure that it would involve them in very small premiums. I do not think that one can demand that thousands of miles of hill and mountain roads should be fenced. It would be entirely uneconomic, although I have heard some hon. Members tonight at any rate semi-advocating that it would be done. As has been pointed out, it would in any case spoil the view of the countryside.
Traffic in the country has increased enormously over the last 25 years, and it seems to me that chickens, pigs and sheep have become much more traffic-conscious than they were when I was a boy. [Laughter.] It is true. Hon. Members can laugh as much as they like, but when I was a small boy and there were very few cars on the road, in the mountains of Scotland all the sheep congregated on the road and did not get out of the way. Now, however, mountain sheep in Scotland will look at one, wink an eye, wait until the last moment and then jump out of the way. They know what they are doing. It is not accidental. That is totally different from when I was a small body. They have got used to traffic.
But it is a problem. I think that we have to have some system whereby, if a person is unfortunate, the accident is 548 covered by insurance. I do not know what the premium would be, but I think that it would be very small. For the last 40 years I have been paying 10s. a year against some enormous accident which may happen to someone who does any work on my house. It is unlikely to happen, but if it did I should be glad to have been paying that 10s. a year because I might be faced with an insurance claim of £10,000 from someone who had perhaps fallen off a ladder.
§ Sir D. Glover
The same problem applies in this case of the hill farmers with sheep or cattle. If the whole country were insured against this sort of accident, the premium, I believe, would be minimal. But it would give the farmers great assurance that they need not worry too much, and it would also give to travellers an enormous assurance that they themselves would not be put at great risk.
I have very little sympathy for people who drive along mountain roads at 80 m.p.h. when there are warning notices displayed about sheep or deer. I am not sure that the State, or anybody else, has a responsibility if, as a result of their foolishness, they are involved in an accident. We cannot protect people against their own stupidiy. They should drive at a speed at which they can stop if they see an animal. In daylight the animals can be seen long before they get anywhere near the verges of the road, and at night people should be driving even more slowly.
§ Mr. Hooson
The practical difficulty is that a man may be driving at 80 m.p.h. with nobody else in the car and with nobody else on the road, and if a sheep is killed, under the provisions of the Bill how could the farmer establish that the motorist had been driving at 80 m.p.h.?
Sir D. Clover
This is one of the difficulties. I do not see how he could, unless the motorist, like Paul on the road to Damascus, is converted and reports to the police that he has killed a sheep.
§ Mr. W. Baxter
The hon. Gentleman seemed to imply that a motorist should drive at reasonable speed, as he did in his encounter with the mad bullock, and 549 be able to stop in time. He then went on to speak about the need for farmers to insure against accidents, although he proved conclusively that most accidents were due to people driving at too high a speed. Surely the responsibility for insuring against an accident caused by a person who is driving at too high a speed should not be on the farmer?
§ Sir D. Glover
The hon. Gentleman and I are usually speaking on the same wavelength, but I think he has slightly misunderstood me. In my encounter with the mad bullock one of the farmer's men explained what had happened, and the farmer was not negligent. I think that the farmer should be insured and that the premium he would have to pay would be very small.
Let us not forget that when a man driving at 80 m.p.h. gets involved in an accident the insurance company will almost certainly contest the claim in the courts. I do not see how one can deal in this way with the ordinary reliable citizen, where the family may lose the wage-earner because of a minor accident to an animal on a road in hill country. I do not want to push this too far. It can be discussed in detail in Committee.
I do not think the right answer is to try to make all roads impregnable to cattle and sheep. The right answer is to do this by insurance. If this were mandatory throughout the country the farmer could be insured in the same way as I am insured against an accident to anyone working on my premises.
§ Mr. W. Baxter rose—
§ Sir D. Glover
The same thing could be done with straying cattle. This is a very serious problem, but not nearly so serious today, I believe, even with all the growth of traffic, as it was 10 or 15 years ago, because of the strange educational process among the animals.
I was interested in the amusing speech of the hon. Member for Brecon and Radnor. What happens if a fox jumps over a fence? Twice in my life a body which for 10 seconds I could not identify jumped over a fence right in front of my car. I did not know whether I was avoiding a woman, a man, a child 550 or an elephant. It was a terrifying experience, but if I had been killed, as was only too likely, the farmer should not have been held responsible. This is a natural hazard of human existence. Until we tame the fox, we cannot put it into the Bill. It is a wild animal. If we "go for a Burton" because we run into one, that is just unfortunate. It would lead to by-elections, which might be welcome, and the fox might become popular.
This problem needs to be dealt with, and we should not get too excited about it. An insurance premium paid by the farmer would be the answer. If this were applied all over the country, I believe that the cost in, say, the Scottish Highlands, where the traffic, except in the summer, is very thin, would be about £2 a year. A farmer would consider that a good way of avoiding much anxiety. I am not an expert, but I think that that is about the cost.
It is not practicable to fence in miles of roads in Scotland and Wales. That will reduce amenities far more than improving safety.
§ 9.58 p.m.
§ Mr. Alec Jones (Rhondda, West)
It is obvious from the speeches already made that there are many different attitudes towards the Bill and its problems, differing according to the constituencies we represent and our own experiences. The experience of the hon. Member for Orals-kirk (Sir D. Glover) with a bull in South Wales affected his attitude.
I wish to represent the attitude of those in the mining constituencies of South Wales. We are not so much concerned with accidents caused by dogs, although we know that they are serious. We are terribly concerned with the serious problem caused by sheep straying in our valleys, and we are thinking not only of fatal accidents. Sheep stray into our towns, destroy our gardens, foul the pavements and streets, damage our property and occasionally cause fatal accidents. It is the whole problem and not an individual fatal accident which concerns me.
This subject has been discussed with a great deal of humour. Some people think that it is a joke, and I can understand their attitude. Whenever television cameras appear on Rhondda, they cannot refrain from showing a picture of sheep eating out of a dustbin. Visitors to our 551 valleys think that it is an ancient tradition to have sheep wandering round our streets. I could add a personal note—
§ It being Ten o'clock, the debate stood adjourned.
§ Question again proposed, That the Bill be now read a Second time.
Many of us could relate humorous experiences. Some months ago, I went out of my house in pyjamas and bedroom slippers at about four o'clock in the morning, and chased a sheep down the street because of the nuisance that it was causing. Such events tend to make the situation a laughing matter. However, my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) described it correctly as a serious joke. Certainly the joke situation has long since passed for my constituents. We are concerned with a serious nuisance to householders, damage to property, and danger to human life.
In the other place, the Lord Chancellor said that the law on this matter is mainly common law and is only to be found in judges' decisions going back over the centuries. They are decisions which were made when valleys like Rhondda were rural areas rather than the heavily built-up urban areas that they are today. They were made in times when social and economic conditions were different, when the motor car had not been heard of, and when people's lives were so harsh that they did not have to worry about the nuisance and other problems caused by straying sheep.
Dealing with the civil liability for animals, the Law Commission said in paragraph 1 of its report:It is widely recognised that this branch of the law is in an unsatisfactory state and that it continues to apply rules and draw distinctions which make little sense in modern conditions.It is for that sort of reason that I welcome the Bill. It simplifies our law and brings it up to date.
I welcome the whole Bill, especially Clause 8, though I suspect that it is too 552 weak to deal with the problem with which it seeks to deal. It talks of the duty to take care to prevent damage from animals straying on to the highway. This is bound to be a controversial issue, because everyone has different interests. The owner of animals obviously has a different interest from that of people who are likely to suffer nuisance, damage or injury from straying animals.
At present there is no liability on the owner of animals to take the slightest step or exercise the slightest care to stop them straying on to the highway. I do not believe that anyone can defend that position today, whether he be the owner of animals or the person likely to suffer as a consequence of those animals straying. As my hon. Friend the Member for Aberdare (Mr. Probert) said, Scotland has been wiser in this rspect and already has made provision to deal with the problem.
I understand from the report of the other place that it was pressure from the N.F.U. which led to the insertion of paragraph (e) in Clause 8(2). However, I hope that my right hon. and learned Friend will spell out to us exactly what that paragraph means. If it means that in areas where fencing is not the normal practice farmers or any other animal owners can use the provision to avoid the duty to take care to prevent damage caused by animals, it will not do. It will not solve the problem that people in South Wales want to see dealt with, and it will need amending. No doubt it will be possible to do something about it in Committee.
The alternative to this type of Clause is the impounding scheme operated by some local authorities, and strongly objected to by farmers. The local authority employs a shepherd who goes round the streets collecting the stray sheep and impounding them. Their owners then have to go along to the council and pay to have their sheep returned. This method is expensive to the council, extremely expensive to the farmer, and does not solve the problem. Unless the Bill can do something towards solving the problem, it will bring further pressure on local authorities to use this method which farmers may dislike far more than the contents of the Bill.
In one part of the Rhondda local farmers, the Forestry Commission and 553 the local authorities have combined to meet the cost of fencing. I understand that such fencing has materially helped prevent sheep straying on to our urban areas. If such a combination can work in one valley, it is worth looking into.
I certainly commend the idea suggested by my hon. Friend the Member for Aberdare and others of a working party to consider whether we can do something, apart from the provisions in the Bill, to solve this difficult problem for local authorities, for farmers and for the people 554 who suffer as a consequence of animals straying.
Whatever the problem, it cannot be right that in this day and age owners of animals need pay no attention to the problem, nor take any steps to prevent their animals straying on to our highways. I trust that the Bill will at least partially remedy this anachronism.
§ Mr. Speaker
Before the debate continues, I remind the House that I did appeal indirectly for reasonably brief speeches.
§ 10.7 p.m.
§ Mr. Emlyn Hooson (Montgomery)
A general welcome has been extended to the Bill, with some reservations particularly on Clause 8. I do not share in that general welcome. The more I have read the Bill the more I think that it is bad.
The Lord Chancellor in another place claimed that the Bill was written so that the ordinary educated person could read it in English. The more I read it the more snags and obscurities I see in it.
The right hon. and learned Gentleman, opening the debate, referred to the deficiencies in the common law. He referred to them as uncertainties. I venture to suggest that if hon. Members here were to look back at this Bill in five years' time there will be more uncertainty in the law then, as its result, than there is today.
Hon. Members opposite, who are greatly in favour of the repeal of the decision in Searle v. Wallbank, already have doubt whether it is achieved by Clause 8. They have good reason for their doubt. I think that a coach and horses can be driven through the Bill in many respects—in the drafting of it to start with.
The complaint that has been made is that the law relating to animals has been developed over the centuries in an empirical way. It covers multifarious situations which have been brought before the courts. The complaint is that precedents, particularly the decision in Searle v. Wallbank, have hardened so that we have had bad law.
How do we propose to remedy it? We sweep away, for example, in Clause 1, all the law relating to animals which has been delivered over centuries. The accumulated wisdom of centuries is being abolished, willy nilly, though this wisdom could have been improved upon in some instances. We are replacing it by a series of legislative definitions which cannot be changed or modified save by the legislature. We are complaining that common law precedents have hardened into rules that do not fit the situations that we encounter in modern life, but we are changing it by having legal definitions which cannot be changed except by this House. The whole process is likely to result in the greatest possible disappoint- 556 ment to those who base their hopes on the Bill.
Perhaps I might refer to some of the drafting to illustrate my criticism. Clause 2(1) says:Where any damage is caused by an animal … any person who is a keeper of the animal is liable for the damage.….In Clause 2(2), just over the page, we see the words:Where damage of any kind … is caused by an animaletc. "liability is imposed. There is a change from "any damage" to "damage of any kind"". Presumably the drafter sees a distinction between one and the other. I have studied the Bill, and a number of distinguished legal friends have looked at it, and we cannot see any reason for that distinction, but in interpreting the Bill a court is bound to think that there is some distinction intended by Parliament, otherwise the same words would have been used.
Under Clause 2(1), whereany damage is caused by an animal".the liability attaches to the keeper, yet under Clause 5(1):A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.Here the sufferer is wholly responsible. The keeper of the animal is not liable. That must follow. How can the keeper be liable unless he has caused the damage under Clause 2? Clause 5 is either an unnecessary piece of nonsense, or it has some significance which has escaped me entirely.
Clause 5(2) says:A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.As the right hon. and learned Gentleman knows, the defence of volenti is available in all circumstances of this kind. This is entirely surplusage. Was the Bill written so that the man on the Clapham omnibus could understand it? It introduces more difficulties than a Bill drafted in ordinary legal language.
Under Clause 5(3):A person is not liable under section 2 of this Act"—557 which imposes the liability—for any damage caused by an animal kept on any premises or structure to a person trespassing there …Animals of this kind are normally kept in fields, not in premises or structures. Does the word "premises" cover a field? It does not normally do so in the interpretation of other Statutes, nor does "structure", and yet the very mischief that we are dealing with here concerns animals such as hulls which may have a dangerous propensity, and which are kept in fields.
§ Mr. Speaker
Order. I hope that the hon. and learned Gentleman will not deal in too much detail with what are Committee points.
§ Mr. Hooson
I appreciate that, Mr. Speaker. I made a general criticism, and I illustrated it by reference to two matters. I could refer to many more, but I do not intend to do so.
§ Sir D. Glover
I think that the hon. and learned Gentleman is making the most profound speech that we have heard on the Bill, and I think that the House is listening with great interest. Does this mean that if I am gored by a bull in a farmyard the farmer will be liable, but if I am gored in a field he probably will not be so liable?
§ Mr. Hooson
It is not that point that I am discussing. It is in a way a Committee point. It is the liability for trespass, the liability that a farmer, or keeper of an animal, might owe to a trespasser. If the trespasser was on premises or a structure, the farmer would not be liable, but it does not make it clear whether he would be liable if the trespasser was in a field.
Clause 8(1) seems to make no sense at all. If this is a Bill to be understood, as the Lord Chancellor claimed in the other place, by the layman, what does Clause 8(1) mean to the layman? The answer is, "Nothing at all". It abolishes the rule in Searle v. Wallbank, of which the layman is unaware in any event. What does it mean to a member of the public? If we are to have simple drafting in Bills, for heaven's sake let us have Bills which the layman understands, instead of this kind of provision. Then there are the qualifications contained in Clause 8(2) which says: 558The following matters shall be included among those to which regard must be had in determining…What weight is to be given to them? Nothing is said about that. I rather preferred the Private Member's Bill introduced by the hon. Member for Leicester, North-West (Sir B. Janner).
If we want to tell the public exactly what is in the minds of the legislature we can scrap the whole of Clause 8 and replace it by a Clause which has been drafted for me, and which would provide that:An owner or occupier of land shall be under a duty to take such care as is reason able to see that damage is not caused by animals straying therefrom on to a highway.That is all that needs to be said.
§ Sir B. Janner
Does not the hon. and learned Gentleman agree that the layman thinks that he can get compensation? If he reads the many letters which are received by hon. Members he will agree about that. People are amazed when they find that they cannot obtain compensation. It is for the lawyer and the layman to realise that before the bringing in of this Bill compensation was not available: now it is to be made available.
§ Mr. Hooson
I am not arguing about that point. This is a very badly drafted Clause if it is to achieve what hon Members opposite want it to achieve.
§ Mr. Abse rose—
§ Mr. Hooson
The qualifications in Clause 8(2) are entirely unnecessary. The whole Clause can be changed and drafted in a quite simple way.
§ Mr. Abse
As spokesman for the Liberal Party, will the hon. and learned Gentleman explain to us—apart from his iconoclastic approach towards the drafting of the Bill—whether he does or does not believe that there should be a major amendment to the law to prevent sheep from being on the streets of Tredegar or Pontypool?
§ Mr. Hooson
My point is that what should apply in the hon. Member's constituency—an urban industrial constituency—should be different from that which should apply in Brecon and Radnor, a rural constituency, which his hon. Friend represents, because the one area is not comparable with the other. In Brecon 559 and Radnor there are thousands of acres of unfenced land in remote rural areas. Why should such an area be encumbered with the same rules as those which should apply to Tredegar?
§ Mr. Abse rose—
§ Mr. Hooson
I am pointing out that it should be merely necessary for a person to use reasonable care. I say that the judges should interpret this question and that there is no need for all these qualifications, which introduce far more complication than is necessary or desirable. In my area there are thousands and thousands of acres of unfenced land and it would be ridiculous to require either the public—through local authorities—or the farmers to fence all the land. If notices were posted by the highway authorities warning people of the presence of animals the responsibility thereafter should rest with the motorist. He can insure against it if he wants to. It is not only the farmer who can insure.
In an area such as that of the hon. Member for Pontypool (Mr. Abse) there is much to be said for putting the boot on the other foot. There the liability should primarily attach to the owner of the animal. It is important to draw a distinction. The trouble with a Bill of this kind is that it imposes a general rule for the whole country without allowing sufficient scope for sensible interpretation. The common law allowed a flexible approach. The criticism is often made that Searle v. Wallbank went too far. In this Bill we are going much too far in another direction.
§ Mr. Abse
It is abundantly clear from the provisions of Clause 8(2) paragraphs (a), (b), (c), (d) and (e) that what the hon. and learned Member is asking for is available, namely, a distinction between different types of land, different types of area and different types of circumstance in which a breach of care can take place. The Bill draws a distinction between the hon. and learned Member's constituency and mine.
§ Mr. Hooson
My view is that, although it attempts to do so, it does not succeed. The point can be further illustrated by a reference to Clause 8(2) which says: 560… a shall not be regarded as committing a breach of the duty to take care by reason only of placing animals on any common land or town or village green in any case where it is lawful for him to do so.But in Brecon and Radnor and in my constituency and in many others there are vast areas of unenclosed land which are not commons. Why should those farmers be required to enclose when the commons do not have to be enclosed, which is an interpretation which might be put—
§ Mr. Speaker
Order. With respect, the hon. and learned Gentleman is drifting into a discussion of a Clause which he might wish to substitute for Clause 8.
§ Mr. Hooson
What I am trying to show is that Clause 8 does not meet the intention of, for example, the hon. Member for Aberdare (Mr. Probert). He will find that, when this is interpreted by the courts, there will be a different result from what he intends. It does not satisfy people, like the hon. Member for Brecon and Radnor (Mr. Tudor Watkins) and me, who have responsibilities towards farmers.
The whole thing should be considered anew. It is useless to say that the duty to fence should be on local authorities and that there should be grants: the duty is not on local authorities and there are no grants and we are passing the Bill in the light of that knowledge.
The other controversial feature is Clause 11(2), which provides that reference can be made to the Law Commission's report in interpreting this Statute. I spoke on this principle when we debated the Matrimonial Proceedings and Property Bill the other day. The Solicitor-General referred to what I said then. I had not then read the report of the Law Commission on the interpretation of Statutes but I have now repaired this omission and I adhere to the view which I expressed then: I am not prepared, as most hon. Members were, to condemn this kind of provision outright. In a Bill as badly drafted as this, it would be a great help to refer to the report.
But I am not sure that it is actually the Report that should be referred to. I prefer the suggestion of an Explanatory Memorandum which will eventually be attached to the Bill and be considered 561 and approved by Parliament after Third Reading. As I explained in the previous debate, I think that we should review in depth the relationship between Law Commission and Parliament; this is vastly important. On this Bill alone, this provision introduces a major constitutional change; it is that, in the interpretation of an Act, one can consider the report of a Law Commission.
The vast majority of lawyers to whom I have spoken are against this proposal. I would vote against this provision on Third Reading, but I maintain that it warrants detailed debate. The Government were at fault, however, in not arranging a debate on this general principle embodied in the Law Commission report rather than putting it almost surreptitiously into two Bills in this way.
Clause 11(2) is an important constitutional departure. I am basically in favour of this kind of departure, although I am not tied—indeed, I have grave doubts about it—to this particular provision as the right way to do it. But we should not pass a Bill before there has been a general debate about the principle in the Clause and in that one only.
I notice, Mr. Speaker, that you are very restive, because I have taken some time to deal with this Clause. One would not wish to do so in a debate on an Animals Bill, but, since the Government have introduced it and since it is of such major constitutional importance, it is impossible for hon. Members to ignore it. That is why I have taken a little more time to deal with this important matter than I otherwise would.
§ 10.25 p.m.
§ Mr. Leo Abse (Pontypool)
Lawyers have a natural tendency to want to make Bills esoteric, understandable, perhaps only to themselves and their colleagues. I can understand that someone as conservative as the hon. and learned Member for Montgomery (Mr. Hooson), as spokesman for the Liberal Party, deplores that a Bill has been produced by the Law Commissioners which, as the Lord Chancellor said, spells out the matter in simple language, perhaps repeating some of the existing law, in a way which can make it something of a source-book for lawyers and laymen. I am not so conservative as to worry if solicitors, in the light of the Clause which has aroused so much ire, are able to turn directly to the report 562 of the Law Commissioners and see the reasoning and approach which has led to this important Measure.
Nowadays, there has suddenly blossomed a boundless enthusiasm for the nation's right to amenity. It has become voguish. Apparently, under the threat of modern conditions and new technologies, the whole question of the quality of life to be enjoyed by citizens rivets the attention of presidents and premiers. High-level and, no doubt, fascinating meetings take place at which our leaders engage in dialogues out of which are supposed to come new advances in technology which will save our amenities from yet other new advances of technology.
But all this blather, as some of us regard it, sounds hollow to those who represent, as so many of us present tonight do, the valleys of South Wales. For we are still struggling to emancipate ourselves from the incubus of past reckless industrialisation. We are trying to get away from housing originally built to stable labour, not to create homes for people to live in. Tonight, we are glad that we have a Labour Government who are taking the initiative to end laws which were created for a rural community but which have been maintained overlong to protect the vested interests of farmers, even though these mediaeval laws have caused havoc and are continuing to cause havoc in our industrialised valley townships.
The drive shown by this Labour Government in what they are doing for the amenities of the South Wales valleys is appreciated by all our constituents.
§ Mr. Speaker
Order. The hon. Gentleman must not broaden the debate; otherwise, we shall have a very wide debate on the amenities of Wales and, indeed, of Great Britain.
§ Mr. Abse
I shall come to the point, Mr. Speaker. But, with respect, there is no more important aspect of amenity in South Wales than that we should have environmental conditions free from the ravages of sheep and ponies. [Laughter.] Hon. Members may think that this is diverting and a matter for mirth. If they were inhabitants of some of the constituencies in the South Wales valleys, they would not think it amusing. The blunt truth is that, at last, the Bill puts people before sheep. [Laughter.] It will 563 be noted in the South Wales valleys that hon. Members opposite mock and scoff when we plead for greater amenities for the people of our valleys.
It is no laughing matter to the housewife of Ebbw Vale, Pontypool or Aberdare and the other valleys that each week, when the refuse collections come round, she finds to her dismay that all her work is for nought because of the pillages of sheep coming down from the mountains. It is no joke to old-age pensioners in Pontypool or Ebbw Vale that, after they have worked hard to create their gardens, they find them almost disappear overnight. It is not funny when, as constantly happens, sheep and ponies sweep across housing estates causing injury and damage, or when, as happened within recent months, sheep come into the playgrounds and knock down children even within the walls of the playground. These things are happening now because of the inadequacies of the present situation.
Even our dead are not protected from the ponies and sheep. There is no sanctity in our burial grounds because this situation has been allowed to continue, largely through indifference and because too many concessions have been made to farming interest. [Interruption.] There have been far too many concessions.
The Bill will undoubtedly mean that farmers will no longer be able, recklessly and without hindrance, to allow their cattle to wander on to roads or, without fear of consequence, disregard the most elementary precautions in the supervision of their flocks. If a farmer is prudent, is prepared to take reasonable precautions and understands that he, like everybody else in the community, has a duty of care, he will be able to take out a public liability policy at a small premium, which is surely what the community should expect. That will be far preferable to men, women and children being injured on our roads without the possibility of obtaining compensation.
At a time when farmers are seeking the sympathy of hon. Members because of undoubted genuine difficulties, this is a very bad moment for them to be suggesting that they should be allowed to have discriminatory legislation in their 564 favour which would enable them not to care, if they are so minded, whether or not their animals go on to the roads or on to other people's property.
§ Mr. Michael Shaw
The hon. Gentleman claims that farmers will be able to take precautions by taking out an insurance policy at a small premium. Does he have any evidence to support his claim that it will be a small premium and that farmers will be able to obtain such policies?
§ Mr. Abse
Naturally. Those of us who have been concerned with this matter would not have been putting pressure on the Government to introduce legislation of this kind without informing ourselves of the position. The hon. Gentleman may be sure, as the Law Commissioners hinted in their report, that precautions can be taken. Naturally, until the Bill was drafted and was available, and because there must be a great variation of possible premiums between one area and another and between one farmer and another, it is difficult to give an answer for each case.
If I am asked what the average cost will be, my answer is that the figure mentioned by an hon. Gentleman opposite earlier is not far out. The House will not expect me, having had rather confidential discussions on the subject, to state publicly, in terms, the precise figures. However, suffice to say that for most people £5 would be more than what they would be likely to pay. In view of my past contributions to debates generally, hon. Members will accept that I would be unlikely to make reckless claims.
Perhaps some farmers will not be able to obtain policies for public liability. Certainly the "gooseberry" farmers, as we call them in South Wales, will not get them—not when their cattle are on council house estates, when they have no wintering quarters and when they allow their sheep to graze on unenclosed land. Nor should they be allowed to have the protection of these policies. They are completely anti-social. Their cattle and flocks destroy the amenities of many people, all because these farmers are out to get the sheep subsidy.
Some other farmers may not be able to get public liability policies, and the 565 House must face this. In a heavily industrialised area insurance companies may not wish to give such policies to farmers who hold land for grazing purposes when it is felt that the risk to human life is too great. We are entitled to ask if it is right for those farmers to continue, in a modern industrial age, to graze their cattle and flocks in heavily industrialised areas. That is why I think that good and prudent farmers within the National Farmers' Union do themselves a disservice if they seek to save irresponsible and reckless farmers from the consequences of their own folly.
The Bill's most controversial Clause is Clause 8. Concessions have already been made in another place which can dilute its effect, and as a consequence mean that it will be far more difficult to advise clients who may have suffered whether or not they have a reasonable prospect of success in claiming damages. What many of us in South Wales want is an assurance that Clause 8 as it now stands does not give an absolute exemption to those who place sheep on common land.
That is the crux of the problem. Over large areas of Monmouthshire and Glamorgan there is relatively more land of this type than anywhere else in Britain, and that is why we are so concerned that no blanket exemption should be given. For example, if sheep straying off common land cause an accident, and they have been placed on that land by a man who is reckless and irresponsible, and who in no way looks after those sheep and has no wintering quarters, I hope that the Attorney-General or the Solicitor-General will confirm that such a case will not be excluded, but that on those facts the court could find that the sheep owner was so reckless as to be liable for damages.
I observe that already within the Bill anyone who has no right to place his sheep on the common will be completely liable, but my concern is with those people who may claim and exercise rights to overstock commons in such a way that it is highly probable that the sheep will come off the commons on to the roads in their search for food.
§ Mr. Hooson
But, in dealing with Clause 8, does not the hon. Gentleman 566 appreciate that he has really substantiated my argument that the result of the Clause may be not to impose any liability on those on whom he wishes liability to be imposed, but to impose it on people who have unenclosed land in rural areas, as is the case in my constituency, and land which has never been enclosed?
§ Mr. Abse
The unenclosed land in the hon. and learned Gentleman's constituency will be land in an area where it will be possible to take into account its situation and the nature of the tract, as the Bill points out—the whole of the surrounding circumstances—so that what would be negligent in Pontypool would not constitute negligence, quite obviously, in Montgomery. That is why Clause 8 is spelled out, and the hon. and learned Gentleman is advertising not the foolishness of the Lord Chancellor, but his own lack of understanding of the Bill.
What we are concerned about is that there are different sets of circumstances in which it can be found that sheep or ponies are so lacking in supervision that recklessness can be shown even when the animals are placed on common land. I want it to go out from the House to the "gooseberry" farmer, as we call him in Monmouthshire and Glamorganshire, that he has to take great care in this respect, otherwise he may well find himself financially ruined. I want it to go out to reckless farmers that if they behave irresponsibly it will mean in future that as a result of this Bill they will be taking the most grave risks.
We believe the Bill is one which, although it only stumbles forward a little, is a genuine attempt to grapple with a major problem of amenity in South Wales. As my hon. Friends the Members for Aberdare (Mr. Probert) and Rhondda, West (Mr. Alec Jones) pointed out, it does not contain a magic formula to solve the whole problem. I hope that as a result of what has been said a working party will be set up. It is clear that fundamentally in South Wales the problem is that of fencing. It is time that the Ministry of Agriculture, in conjunction with the Welsh Office with whom it shares responsibility, with British Railways and the National Coal Board ensured a fencing scheme in all areas. A working party should be set up from which recommendations for such schemes could come.
567 South Wales has benefited from grants for clearing tips. It is no less important to South Wales people that grants should be made for a combined attack on the problem of fencing. The working party should have wide terms of reference to conquer these problems so that the people of the South Wales valleys may have the same standards of amenity as are enjoyed by those in cities.
People of South Wales will thank the Lord Chancellor and the Law Commission for the work that has been done and for the fact that at long last, despite the complexity of the matter and the inevitable provocation that a Bill of this kind must bring about, we have a Labour Government who have begun to grasp this nettle.
§ 10.42 p.m.
§ Mr. Bert Hazell (Norfolk, North)
I have very much in mind the suggestion by Mr. Speaker that because of the late hour speeches should be brief.
Before I entered this House I was a full-time trade union officer. One of my duties was not only to deal with accidents arising out of and in the course of employment, but accident cases under the common law. Because of the nature of the membership of my union throughout the rural parts of England and Wales there were many cases of accidents on the roads happening on dark mornings when men were cycling to work and a sheep or bullock strayed across the road. I cannot recall any occasion when I was successful in securing damages for members who in some instances have been severely injured as a consequence of that type of accident.
I hope that this Bill, which has received fairly general welcome by the House, will enable claims in instances of that sort to succeed in the courts. I have grave doubts as to the Bill's practical interpretation, but I speak as an ordinary trade union officer who is not versed in the law as are some of my learned colleagues on either side of the House. I gathered from the speeches which have been made that the Bill was one which the ordinary layman could understand, but I confess that I do not understand all the meanings of the provisions in various Clauses.
I foresee difficulties arising in obtaining damages for injury caused by accidents 568 involving sheep. How can an ordinary person know who owns the sheep in the moorland areas of North Yorkshire or the Pennines? Only the farmer knows the markings on his sheep. At certain times of the year those markings are almost indistinguishable. If the owner of a sheep can be traced, a plaintiff might succeed. My intimate knowledge of the area gained over the past 30 years convinces me that it will be almost as difficult under the Bill to establish a claim for damages arising from injury through running into a sheep as it has been hitherto.
I have listened with great interest to the speeches made by my hon. Friends from South Wales. They expect much of the Bill. I hope that their hopes are justified. There is nothing in the Bill providing that areas which never have been fenced shall be fenced. I do not see how sheep can be stopped from coming down from the hills and wandering through the valleys of South Wales. I would not like to live in the villages with that nuisance always obtaining. I see nothing in the Bill to prevent that from happening, but it may well be that the legal phraseology conceals something which may have this effect.
I know the Pennine district well. It is a wall district. The walls are, in the main, relatively well maintained, but I have yet to see the wall that will stop a sheep which is determined to get over it. So even in a walled area the nuisance cannot be stopped. I do not believe that the Bill will stop it. If it helps people to obtain damages, it will be a good Bill, but as practical people we should not expect too much of the Bill.
My home county is Norfolk and I represent a constituency in Norfolk. In past years we were proud of our high hedges. They helped to prevent stock from straying on to highways. What will the position be under the Bill? Many miles of roadside hedges have been uprooted in the past decade. Nothing has been put in their place. An animal can escape from a home pasture and wander for miles on the roads. It will be difficult to discover the owner of an animal which has strayed for miles on the highway and caused someone's death. Will Norfolk farmers be ordered to reinstate the hedges they have uprooted over the past 10 years? In some respects I hope 569 this happens, because I think that they have desecrated much of Norfolk without gaining anything for themselves. If the Bill helps to restore roadside hedges in Norfolk, thus increasing safety, I give it a double welcome, but I have my doubts about this aspect, too.
In recent years local authorities have been very good in the matter of erecting signs warning the general public that sheep and other animals are liable to cross roads running through moorland and commons. The hon. Member for Scarborough and Whitby (Mr. Michael Shaw) will have experience of this near his constituency. However, many people ignore the warning signs. Although local authorities have recognised their responsibility, more could be done in this regard.
Clause 9 relates to dogs. They have become a nuisance in the countryside. They are destructive once they begin to go wild. It is natural that a dog that has been confined, perhaps on a housing estate, should want to chase other animals on suddenly gaining its freedom and finding hens, ducks and so on. Only this week in Norfolk an instance was reported of many hundreds of ducks being killed by one dog.
Some local authorities have not helped. I call to mind very vividly a new estate on the outskirts of Leeds where the planning authority has made a condition that there must be no fence of any sort erected around any of the houses. The estate is completely open to the countryside. If one is prevented from even planting a privet hedge, then at certain times of the year when a dog is let out the owner cannot stop it, even with the best will in the world. It is gone, and straight into the open country. This has not helped to solve some of the difficulties of the farming fraternity, but has created more difficulties.
I do not believe that the owners of any of these dogs want to see them doing damage. But there are times when, because of the type of estates being built, it is almost impossible to keep a dog within the confines of the house, without even a garden to roam.
These are some of the practical difficulties we must face, and they will be some of the practical difficulties the law will have to determine when cases are 570 brought. I hope that it will be possible to bring them to a satisfactory conclusion for those who are injured or for the relatives of those who lose their lives on the highway through straying cattle and the like. I hope that the Bill will give us what most of us would seek to have, but I have some very grave doubts when it comes to an issue of interpretation.
§ 10.53 p.m.
§ Mr. Edwin Brooks (Bebington)
I am very grateful to have an opportunity to intervene in the debate, because until my hon. Friend the Member for Norfolk, North (Mr. Hazen) spoke, speaking as usual from his deep experience of agricultural and rural matters, I began to wonder whether the House had resolved itself into a meeting of the Welsh Grand Committee. I say this without malice, because I am a Welshman, and the Welsh have no malice within them, as the House knows. But there has been a certain obsession with the problems which plague my hon. Friends. I am well aware of these problems, having grown up in that area.
It would be a mistake if we gained the impression that the Bill is solely concerned with those specific problems. We are dealing with two substantive legislative proposals, one relating to the Bill and one on which my right hon. and learned Friend the Solicitor-General concentrated during much of his speech—the proposal involving the Law Commission's report.
The hour is late and it would be wrong of me, particularly as one who is not qualified in the law, to comment at any length on matters which have already been discussed exhaustively in relation to the Law Commission. But I am bound to refer to one comment made by the hon. and learned Member for Montgomery (Mr. Hooson) in a very necessary speech. I think that he said that precisely because the Bill had been so badly drafted it was all the more important that the Law Commission's report should always be consulted about its interpretation. But I think that it was the Law Commission that drafted the Bill; proposals which are still largely those before the House were put forward by the Law Commission. It is rather extraordinary that a body apparently capable of drafting a Bill so badly as the hon. and learned Gentleman claims 571 should invariably be consulted, and explicitly defined for this purpose.
There is a principle here which must be ventilated, if only in passing. If we do not mention it I am sure that this will be used as a precedent. It will be said that it was done with this Measure and that we cannot have exceptions in future. The Law Commission has, in effect, prepared a Bill for the House and I do not like the concept of the Law Commission producing Bills which we are expected to rubber stamp.
§ The Solicitor-General indicated dissent.
§ Mr. Brooks
I am sure that my right hon. and learned Friend, who is shaking his head, does not agree with that criticism, but if there is an inference that there will be no major Amendments to the Bill in this House, surely we are, in effect, saying that the Law Commission is so brilliant in these matters that it can do no wrong and that it alone must be identified in this way. This must be gone into in Committee and I hope that the more general issue will be gone into on the Floor of the House at a better hour than this at a later stage. If the Government felt it desirable to intrude such a provision as Clause 11(2) into the Bill, it would have been better to have done it on Report stage, when the Government would have seen how far the Committee had altered the original proposals of the Law Commission.
The debate has ranged widely. We have all learned a great deal of value. Like my right hon. and learned Friend, I have learned what a hinny is. I thought originally that it was a misprint of "ninny", a synonym for ass, but it is the converse of a mule. Perhaps it is a matter of whether one's mother or father was an ass. We are discussing in tremendous detail a species which none of us even understands. My right hon. and learned Friend did not even know what it was. I do not know how many hinnies there are in England or in the valleys of Wales.
§ Mr. Brooks
My hon. Friend seems to suggest that the Geordies know about it. These are dark secrets to most of us.
But the object of the Bill, aside from these details, is generally to codify prac- 572 tice in the way we assess liability for damage caused by animals. Running throughout the Bill is the difficulty or inability to ensure peaceful co-existence between motor cars and animals. We have imposed a general liability upon all car owners in that they have to have compulsory third party insurance. I think there is some point in trying to approach the ownership of animals in the same way, but there are problems and I am not persuaded by what were, for once, the rather facile arguments of the hon. Member for Ormskirk (Sir D. Glover). There are real problems, particularly in dealing with the upland areas.
As I have said, the hon. and learned Member for Montgomery made an important and necessary speech. I think that, because I too have many doubts about the Bill and they have been reinforced further by the speech of my hon. Friend the Member for Norfolk, North. Clause 2(2) says:Where damage of any kind is caused by an animal which does not belong to a dangerous species, and—(a) the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind …What does "of that kind "refer to? This point was discussed at length in the House of Lords. The words "of that kind "clearly refer back to "damage of any kind", which phrase seems to leave nothing out.
I have an interest in the problems of conservation of the otter. No doubt otter hounds do a great deal of damage to river banks—more, indeed, in one afternoon than is caused in a whole year by erosion or flood. Is what the Government have in mind damage of any kind caused by any animal and not just livestock? But if the animal, for example a wild deer, is not owned by anyone, damage presumably cannot be measured. It is a meaningless concept.
This is a case where the home-spun language of this legislation will cause the greatest difficulty in future. When I first came to this House, I thought all our laws should be simplified. I am beginning to feel that there is good reason why they should be expressed in scrupulously careful legal language.
I want to deal with the problem of the dog, particularly the dog in the town. We have heard a great deal tonight about 573 cattle wandering in the hills, but we tend to forget that a very large number of accidents are caused by dogs in our congested towns. There are problems arising which we shall have to consider in Committee. We shall have to explore the implications, for example, of fencing on council estates and the liability of a dog owner living on such an estate who allows his dog to get out and cause an accident to a motor vehicle.
For many years, we have permitted dog owners to keep their animals too cheaply. We all know the problem which arises after Christmas, when masses of dogs have to be destroyed by the R.S.P.C.A. I have felt for a long time that the licence fee should be increased, and made payable at time of purchase, with a view to stopping this foolish and happy-go-lucky attitude to the keeping of animals. Moreover, I see no reason why the licence fee should not be increased by an amount corresponding to what would be the premium on an insurance policy, so that a person buying a dog licence automatically insured himself for the damage which his dog might cause.
However, my original purpose in intervening in the debate was to raise a matter which so far has not been touched upon but which is relevant to the Bill. There are two areas where clearly some obligation is being placed upon animal owners: first, to ensure that animals do not cause damage by trespass; and second, to ensure that they do not cause any direct injury to someone. Obviously, these are principles which the House will endorse.
For some time, I have been concerned about the way in which, in this age of fast motor vehicles and electrified trains, we still not only permit but sometimes actively encourage the movement in full cry of large numbers of potentially fierce animals across the country chasing the sort of animal referred to by my hon. Friend the Member for Brecon and Radnor (Mr. Tudor Watkins). What would have happened, I ask myself, it the fox which jumped over the hedge had been followed by 50 or 60 hounds in full cry?
I have quite a large selection of incidents recorded for the year 1965–66 involving packs of hounds crossing highways, aerodromes and railways. I had 574 some correspondence with my hon. Friend the Parliamentary Secretary to the Ministry of Transport about them. In a letter dated 17th July, he said:…it is also unlikely that hounds would present much risk to trains.In a later letter to me, Sir Henry Johnson said:It is not possible to identify in our records cases of trespass by followers of hounds—we have no recollection of instituting proceedings in such cases in recent years.That may sound comforting, but the Daily Telegraph carried this new item on 6th January:Hounds on line delay trains: Hunts were told by British Rail yesterday that their actions could cause a serious railway accident, after a train killed two foxhounds. The hounds, belonging to the Llangeinor Hunt in Glamorgan, ran into the path of a tanker train on the Cardiff to Swansea line during the weekend while chasing a fox at Brynna. The driver made an emergency stop. A British rail spokesman said: 'It is sheer madness for hunts to allow hounds to go near the railway track … because serious accidents could occur'.My point is that if we are to codify the law relating to negligence or damage caused by animals on the public highway, this at least is one matter which we should consider seriously.
My final point arises from the problem of defining "livestock". The right hon. and learned Member for Huntingdonshire (Sir D. Renton) referred to Clause 8 as if it applied to livestock. No doubt that was a slip, and he meant to say "animals".
§ Mr. Brooks
Clause 8 is simply headed,Animals straying on to highway.I imagine that it could be termites on the march. They are animals. There is no limitation whatever. I think that the right hon. and learned Gentleman will have to agree with that. This is indeed the background to the point raised by my hon. Friend the Member for Brecon and Radnor when he referred to the fox. It applies to badgers, stoats, weasels—the lot.
Throughout the Bill there is a certain ambiguity. It refers to animals—presumably including wild animals and livestock. If so, what specifically are 575 livestock? Livestock includes asses, mules and hinnies. It also includes a number of other categories which nobody would dispute. But what is the logic? Are livestock animals kept for breeding purposes or commercial purposes? Are they in the ownership of people, or what? If those are the criteria, I think that livestock should properly include the kennels where dogs are bred for sale or other places where pedigree animals are bred for sale.
The relevance of this to my point about field sports is that there have been cases in recent years—and I have documentation for recent months which I have collected—where pet animals, such as dogs, cats, and, in one case which went to court, a pet lamb, have been killed by a pack of hounds in full cry on the property of the person, sometimes a child, who owned that pet animal. It seems extraordinary that we should bring in protection for some old he-goat and not apparently bring in any general rule to protect animals owned and treasured by literally millions of people in this country. Pet animals seem not to be mentioned. Some hon. Gentlemen seem to regard pets as not being animals.
There is a case for a more general application of the concept of livestock which would at least include those animals which are, and can be seen to be, in the ownership of individuals. There may be other ways of approaching it, but these are matters properly to be gone into in detail in Committee.
§ 11.8 p.m.
§ Mr. Clifford Williams (Abertillery)
I apologise for rising at this late hour, but I have been in the House from the inception of the debate and I want to make a short contribution, from a mining constituency in which there are a number of hill farmers. I listened with great attention to the opening remarks of my right hon. and learned Friend the Solicitor-General about the law. He said that the law was uncertain—that cattle could eat somebody's cabbages and the owner had to prove that his land was fenced before he could claim compensation for the damage done by the cattle.
There seems to be an expression of opinion on both sides of the House that the question of straying animals has 576 been too long delayed. The subject has been raised and debated many times, and there have been fierce arguments on both sides. The Bill attempts to do two things: first, to prevent the terrible number of accidents that occur throughout the country due to straying animals; and, secondly, to prevent the damage that is done to the garden of the owner of a little cottage in a Welsh mining village who is an assiduous, joyful gardener.
I shall not develop that theory to any extent, but it is tragic indeed that after people have received tremendous pleasure and joy from cultivating their gardens throughout the season—and I have hundreds of cases of this on record—they wake up one morning to find them devastated by straying animals.
My hon. Friend the Member for Brecon and Radnor (Mr. Tudor Watkins) referred to the instincts of sheep, and told us how they travelled around trying to find the place where their ancestors pastured. My hon. Friend ought to come to the Welsh valleys, where he will find, not only that the sheep follow their instincts, but that they have great jumping propensities. People who have put up 4 ft. and 5 ft. high fences have found them to be of little use. The sheep simply leap over the fences and devastate the gardens beyond. I often wonder whether some of our national hunt trainers—and we have some very good ones—could take a lesson from the way in which these sheep beat the fences, and incorporate it into the training of their horses.
I do not want to be too jocular about the subject under discussion, because we have been plagued by this problem for many years. From time to time the local authorities in my area have met the local hill farmers, and in some cases they have taken joint action to try to stop animals being the cause of accidents on the roads, and to try to stop them devastating people's gardens, but in other areas no action at all has been taken.
The Bill is a step in the right direction, and I support the suggestion for the setting up of a working party. We are all concerned about the losses suffered by farmers, about the accident rate on the roads, and about the devastation that takes place when straying sheep jump garden fences. For all those reasons. I support this Measure.
§ 11.15 p.m.
§ Mr. Michael Jopling (Westmorland)
It is with some diffidence as a non-lawyer that I wind up the debate on behalf of hon. Members on this side of the House. When I first read the Bill I was pleasantly surprised at coming into what I thought was a legal matter—to the extent that I thought I understood it—but when I listened to some of the speeches, especially that of the right hon. and learned Gentleman the Attorney-General, on Clause 11(2), I began to realise that I was about as much at sea on those legal matters as I ever thought I would be.
I am disappointed that we do not have an agricultural Minister to wind up the debate; it would have been very helpful to have had the views of the Ministry of Agriculture on this point. In that connection, I hope that the Solicitor-General will be able to assure us that an agricultural Minister will be on the Committee. It will be of the greatest assistance if he is, and we shall get into a terrible muddle if he is not.
I want, first, to refer to Clause 4, which deals with liability for damage and the expenses involved in trespassing livestock. I imagine that that Clause will be of the greatest help to the "South Wales lobby", because under it compensation can be claimed if sheep come down and eat all the cabbages and roses, and the rest of the things in the garden.
§ Mr. G. Elfed Davies (Rhondda, East)
I do not want to introduce a note of jocularity into the debate, but I should like to tell hon. Members what happened to me earlier tonight. Just before the debate began I was speaking to my wife on the telephone. I said, "In a few minutes we shall start a debate on the Animals Bill, dealing with the problem of straying sheep". She said, "For heaven's sake get it through quickly; there are two in our garden now".
§ Mr. Jopling
The hon. Member is lucky; I have not had a chance to talk to my wife tonight.
Clause 4 will give some redress to people who suffer in this way. I hope that it will also help people—especially those in my constituency and other similar ones who, during the summer, have gipsy horse fairs to contend with. In my constituency one is held at Appleby. It is quaint and picturesque, and people come 578 from all over the world to see it, but there is an extremely unpleasant side to it. Farmers who live around the area when the fair is held and have fields adjoining the roads where all the caravans are parked suffer the most appalling damage and trouble during the week or 10 days of the fair.
One of my constituents who has a farm close to this fair last year had damage valued by a professional valuer at over £700 through the ruination of meadows, broken gates and hedges, and other damaged property. Parts of Appleby are something like Dodge City when the Appleby Fair is on. I hope that Clause 4 will help some of my constituents to obtain proper redress, although I can imagine that in spite of the Bill there may be some trouble in getting compensation.
Like my hon. Friend, I understand some of the reasoning behind the contentious Clause 8, and I do not argue with it. What would be the effect on a bee keeper living near a road if one of his bees got out of the hive and stung someone driving along the road? I should have thought that, under Clause 8, if the owner of the bee could be identified, he would be liable.
There have been arguments about the effect of the Clause on farmers with unfenced land adjacent to a highway. I am slightly reassured by some of the remarks of my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), but I am still generally worried. I share the worries of the National Farmers' Union and the hon. Member for Brecon and Radnor (Mr. Tudor Watkins). Will these farmers be exempt from this liability? In the Lake District, for example, it is impossible for the motorist to tell common from non-common land. This differential is likely to create great unfairness which is illogical and hard to understand.
We are told that certain matters in subsection (2) must be taken into account in determining whether there has been a breach of the duty to take care. The most important, for these vast unfenced areas, is paragraph (e), which deals with the extent to which fencing is the normal practice in the area concerned. It is suggested that this will allow farmers in areas where land is not fenced to escape any liability, but I am not happy about this.
579 If a bus overturned after hitting a sheep and 30 people were killed, a vast claim might be made. The barrister for the plaintiffs would argue about whether fencing was the normal practice in the area. I know of no area where it is the normal practice to have no fencing at all. In the Lake District and on the North Yorkshire moors, great lengths of highway are unfenced, but one need not go far to find land which is fenced. The barrister could say that, although this piece of land was not fenced, it was the normal practice in the area to fence as well. Fencing is intermittent in these areas and it is impossible to say that it is normal to have none at all. So in virtually all cases the farmer is liable to breach the duty to take care, and I am very bothered about this.
I return to the exemption at the end of Clause 8 with regard to common land and village greens. Why has that exemption been inserted? I suspect that the reason is that commoners are not allowed to fence their common land. I think that that was the explanation given by the Lord Chancellor in another place. It seems to me, therefore, that one of the purposes of the Bill, and Clause 8 in particular, is to induce farmers to fence their land. If I followed the debate aright, this is the reason why so many hon. Members from South Wales have given the Clause such a warm welcome, seeing in it a means of forcing farmers to fence their land.
What do the Government intend as regards common land? If commons are exempted because the commoners are not allowed by law to fence them, what is intended for the second stage of commons legislation, now that the commons registers have been closed within the last few months? Do the Government intend in that legislation in the next year or so to bring common land within the ambit of this Bill? That is a sinister thought, and we should like to know.
§ Mr. Jopling
I have been making the case that it is wrong and unfair to make farmers liable to blame and damages for accidents occurring on unfenced roads in rural areas. I am pleased that commons are exempted, but what I regard as sinister is that the exemption may have been put into the Bill as a short-term policy until such time as commons are brought in under the second stage of the commons legislation which can shortly be expected.
I believe that the basic intention of the Bill is to force farmers to fence their land against highways in those vast areas where it is not fenced now. What will happen? There are three possibilities. First, farmers may feel that they ought to fence. The cost will be impossible. My right hon. and learned Friend gave a figure of £800 a mile. Enormous areas are affected. I have heard from the agent to the National Trust in the Lake District that there are 5,000 acres of grazing land coming under this head which would involve 25 miles of fencing.
The economics of hill farming do not allow for expenditure on that scale. Hill farming has become only marginally economic. It has probably suffered more than any other branch of farming in recent years, and the fall in sheep numbers is clear testimony to the way the present Government have lowered the profitability of hill farming.
Moreover, this would be a very unwelcome development in areas such as the Lake District and, I suspect, many areas of Wales. Beautiful parts of the country would be materially harmed if through the unfenced areas we were to have concrete posts and wire fences erected so that animals could not get on to the road. It would be a great setback to the most beautiful Darts of our country, and I hope that the Government will take that matter also into account in Committee.
The next problem is that of insurance. It is almost impossible to assess the cost of insurance. My hon. Friend the Member for Ormskirk (Sir D. Glover) said that he thought there would be a small premium of about £2. All I can do is to repeat what the National Farmers' Union said about it:The Union, having made such inquiries as are possible of expert insurers in this field, 581 feels convinced that as soon as case evidence is built up, if not earlier, there is bound to be a substantial increase in the premiums for such insurance due to Clause 8.Already many farmers are unable to get proper insurance cover.
The union also says that itis already aware of cases where farmers in hill farming areas have been unable to obtain insurance cover in respect of death and injury to their animals in road accidents".The effect of Clause 8 on insurance is likely to be harsh.
Those are the first two possibilities—to insure or to fence. There is one other possibility—that farmers will have to give up their grazings. Already, with low profits, many of them are tempted to do that. It would be a tragedy for the economy of the country and for our rural areas, which can ill afford to have grazings unused.
If the Government say, as has been hinted, that they have taken care of the point of view of the N.F.U., I urge them to do it in the Bill. I hope that they will not continue to do it in such vague terms as appear in the Bill. If the Government believe that they have taken care of that argument, I ask them not to leave it to some farmer to have all the expense and worry of fighting a test case through the courts up to the House of Lords. I hope that the Government will make quite clear in the Bill what is meant, and I hope that in Committee we shall be able tc persuade them to alter the Bill in that way.
As my right hon. and learned Friend said, we give the Bill otherwise a general welcome. But I am sure that in Committee there will be some sturdy battles, and that we may have some rather unholy alliances between the two sides of the House. I hope that we shall be able to change these rather obnoxious features, particularly those in Clause 8.
§ 11.33 p.m.
§ The Solicitor-General
I take note of the point made by the hon. Member for Westmorland (Mr. Jopling) that he thinks that another Ministry should be represented in summing up the debate on this occasion. I see that there might be something to be said for that. Moreover, I will transmit his concern about the composition of the Committee to those involved.
582 The hon. Member asked me a question about bees. I need notice of it. Whether a bee is an animal straying on the highway when it crosses a highway is a point deserving of consideration, and it will receive consideration. But I shall not be tempted into giving conclusive answers tonight on difficult points such as that, any more than I shall put forward prognostications about additional legislation, shortly to be forthcoming, about the treatment of commons.
It has been an interesting debate and, although I do not want to detain the House long at this late hour, I turn, first, to the questions put to me by the right hon. and learned Member for Huntingdonshire (Sir D. Renton). He asked whether the effect of Clause 8(2)(e) was that if a defendant could establish that it was normal practice not to fence, he would not be expected to fence.
I do not think that he could expect from me an unqualified answer to that question. That, again, would be quite unwise. What the Bill provides is quite explicit. It does not set out an expression analogous to that which was put to me by the right hon. and learned Gentleman. What it does is to include this matter of the normal practice in the area as one of the matters to which the court must have regard. He and I know that that statutory language will carry immense weight, but, likewise, he and I appreciate that it is not conclusive. It remains a matter to which regard must be had, and it is obviously an important matter.
The right hon. and learned Gentleman asked about the burden of proof, with particular references to the paragraphs in Clause 8(2). To oblige him, I will express a view about that. But, of course, it is a matter which may come to be argued before the judges, and it is possible that the point may be made clearer in our consideration in Committee. My own view—as he has asked me—would be that it would remain a burden upon the plaintiff to establish the matters in these paragraphs, because they are simply aspects of the duty to care, and a breach of that duty; and, as the overall burden of proof of a breach of a duty to take care will, as I conceive it, be upon the plaintiff, likewise the burden of proof of these ancillary parts of the total duty will be upon the plaintiff. That would be my understanding of the 583 provision as it is at present formulated. But, as I have said, there must not be anything conclusive about an expression of opinion which I offer in this debate.
I thank my hon. Friend the Member for Aberdare (Mr. Probert), in his absence, for his welcome to the Bill. He was concerned, as so many other speakers have been, about the cost of providing fencings and, of course, that is a matter which must obviously be weighed. He expressed a desire that there should be a working party to go into the wider issues raised by liability for straying, and that proposal received such widespread support among hon. Members that one could not possibly disregard it. I shall draw the attention of those concerned to the importance that is attached to that matter.
My hon. Friend the Member for Brecon and Radnor (Mr. Tudor Watkins) referred to that aspect of the matter. He raised the question of the possibly favourable position that Government Departments would be in, where the Ministry of Defence, for example, was receiving substantial sums to keep up fencing and could in this regard be compared rather controversially with other owners of land. To that matter, I will give due attention.
The hon. Member for Scarborough and Whitby (Mr. Michael Shaw) referred to the point of the burden of proof, a matter with which I have dealt. My hon. Friend the Member for Leicester, North-West (Sir B. Janner) reminded us that on several occasions he had put forward the proposals contained in Clause 8. I hope that he will find satisfaction in the eventual achievement, in the Bill, of his purpose. My hon. Friend the Member for Rhondda, West (Mr. Alec Jones) was among those who referred to the desirability of a working party, a point with which I have dealt.
The hon. and learned Member for Montgomery (Mr. Hooson) was uncertain whether Clause 8 would be effective to deal with the case of Searle v. Wallbank. We can consider the matter in Committee. I am inclined to reject the hon. and learned Gentleman's criticism of the drafting of Clauses 2 and 5, but that, too, we can take up in Committee.
My hon. Friend the Member for Pontypool (Mr. Abse) wanted to know the pur- 584 pose of the latter part of Clause 8 in respect of the treatment of commons. I thought that he was right when he said that there was a variety of sets of circumstances in which animals might be grazing on common land. As I see it, Clause 8 exempts owners of animals on commons where the only negligent act is failure to keep them from straying. That does not exclude the possibility of liability where there are additional circumstances; as, for example, where a defendant, having assumed control of an animal, then causes it negligently to run on to the highway. To be fair about this, one must give a qualified answer, but I hope that what I have said meets the case which my hon. Friend raised.
My hon. Friend the Member for Norfolk, North (Mr. Hazell) had doubts about the effectiveness of Clause 8, which I regret, and perhaps we can strengthen the Clause in Committee. We will be attentive to that possibility.
My hon. Friend the Member for Bebington (Mr. Brooks) touched on Clause 11(2), but I think that we dealt sufficiently with that great issue at the beginning of the debate. He also drew attention to the relevance of hounds engaged in field sports, which is another matter that deserves attention.
My hon. Friend the Member for Abertillery (Mr. Clifford Williams) welcomed the Bill, and I was glad of that.
I am happy to think that on the whole the Bill has had a friendly reception. I recognise that Clause 8 is a source of some difference of opinion, and I am aware that Clause 11(2) has still not entirely won the support of the House. None the less, both of these matters, and others, have been usefully ventilated in an extraordinarily useful debate.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).