OCCUPATION OF PARTS OF ROAD FOR DEPOSIT OF BUILDING MATERIALS ETC (Hansard, 20 June 1984)

§ Mr. Ancram
I beg to move amendment No. 120, in page 36, line 18, at end insert 'Provided that the foregoing provisions of this subsection shall not constitute a defence as regards any such contravention as is mentioned in section [Saving for, and extension of section 80 of, Health and Safety at Work etc. Act 1974] (1) of this Act.'.

The Chairman
With this it will be convenient to consider Government new clause 4.

§ Mr. Ancram
This amendment and the new clause have been sought by the Health and Safety Executive which has considerable enforcement powers in relation to public safety. The new clause will ensure that, in the event of conflict between any provision in the Bill and anything in health and safety law, the health and safety measure will take precedence.
The amendment to clause 56 clarifies that the defence in subsection (4) does not apply in relation to any health and safety contravention. I hope hon. Members will agree that it is important that the health and safety law should have precedence.

§ Mr. Maxton
I beg to move amendment No. 121, in page 36, line 25, leave out subsections (4), (5) and (6).
This is in the nature of a probing amendment. If subsections (4), (5) and (6) become law, it will be almost impossible to prosecute anyone who has deposited building materials on the road. Those subsections include so many outs in terms of defence that I do not see any way in which a person could be prosecuted. He might say, "I did not know about it; anyway, I have taken proper precautions," or, "He told me I could do it".
I am not a lawyer. I am glad that it is the hon. Member for Edinburgh, South (Mr. Ancram) is to reply to this debate, because he is a lawyer, whereas the hon. Member for Eastwood (Mr. Stewart) is not. Perhaps I am confused, but I have not seen in any previous legislation a clause which gives a person so many opportunities to defend himself on grounds which I thought were not admissible in normal legal practice. I thought that it was generally accepted that ignorance is no defence before the law. The clause gives an opportunity for people to say that they did not know, and therefore they cannot be prosecuted. Will the Minister explain why that is and whether, if it is included, anybody will be prosecuted?

§ Mr. Wilson
I want to take up the point made by the hon. Member for Glasgow, Cathcart (Mr. Maxton). In particular, I want to draw the Minister's attention to subsection (5)(b)— which is the most all-embracing defence that I have ever seen— was due to a mistake". All one has to say is, "I am sorry, I made a mistake." Such a person will automatically be exempted from conviction because he has a statutory defence.
I am also interested to know what provision there is for a servant in the employ of someone who is reliant on instructions. Can the principal or the employer be prosecuted? An employee who has deposited building materials on a roadway and who is charged with an offence, may have substantial defences to allow him to 390 avoid responsibility. If he has relied on instructions from some other party, can that other party be prosecuted and thus made responsible for the dangerous event with which this clause is intended to deal?

§ Mr. Ancram
If the hon. Member for Dundee, East (Mr. Wilson), who is a lawyer, reads the clause, he will see the circumstances in which a prosecution can be brought. I was not surprised to hear that the hon. Member for Glasgow, Cathcart (Mr. Maxton) has not read section 8 of the Building (Scotland) Act 1959, which is reproduced along with the defences in the clause, but I am surprised that a lawyer of the eminence of the hon. Member for Dundee, East was not aware of that provision.
The operative word is "prove". It is not just a matter of somebody getting up and saying that they made a mistake or did not know. Obviously an element of proof is required. In those circumstances, proof means that it must be to the satisfaction of the court that that was in fact so.

§ Mr. Wilson
I take the Minister's point, but, even so, was due to a mistake seems to give the widest possible opportunity for somebody to be negligent. I do not think that that was the intention of the statute, the Minister or his Department when it was considered necessary that there should be an offence and that action should be taken to correct it.

§ Mr. Ancram
That section has been operative since 1959. I have heard nothing to suggest that it has not worked well and fairly. The Bill is largely a consolidation measure. Where laws appear to have worked reasonably and fairly, and in circumstances such as those where we are talking about a defence to an offence, the rights of somebody who finds himself in that position must be safeguarded. In circumstances where a law has worked well, there is no harm in reproducing a measure of this sort. Certainly we should not consider changing it unless information or further evidence were brought forward to show that it was not working.

§ Mr. Foulkes
I am always worried, especially with consolidation measures, when I hear Ministers talk about the provisions of an Act that have worked well without giving chapter and verse, statistics, illustrations and examples of things that work well.
I am sure that the Minister will agree that over the last few years Acts have been in existence to deal with jay-walking, which is an offence, and with the depositing of litter on the highways. Yet, as far as I know, in few cases are people prosecuted under those Acts. This is so despite the fact that jay-walking can be dangerous and the depositing of litter can create a nuisance. Those are two examples of which I know.
Although there is a law, and although these great bureaucrats when they are consolidating laws insert such provisions, I wonder whether the Minister can give any examples in Edinburgh, in Glasgow, in Dundee, or any other part of Scotland, where these provisions have been invoked and this kind of proof has been put forward.
It does law-making no service for the Minister and the Government to put back on the statute books things that are not working, are not being used and are not being invoked without thinking about the matter deeply. It is about time that we started thinking about some of these things.

§ Mr. Ancram
The hon. Gentleman used three phrases—not working, not being used, and not being invoked—that all mean much the same thing. However, he has brought forward no evidence to suggest that that is true. The hon. Gentleman has made assertions. If he were able to specify what was not working and to illustrate cases which should have been prosecuted, but have not, I would consider whether this was the right law to bring forward. As no evidence has been brought forward by any hon. Member, in circumstances where there is a law, and it appears to be working properly and satisfactorily in the interests of persons who are accused of an offence, I believe that the Government have a right to bring forward and re-enact such provisions in a codifying measure.

§ Mr. Foulkes
It is outrageous to suggest that any hon. Member, least of all me, should go around the country searching for deposits made by offending people. I am sure that anybody in his right mind, particularly Opposition Members, would agree that the burden of proof must rest with the Minister and Government. The Minister is backed up by eminent civil servants and by people wo have the statistics. I am sure that the hon. Members for Dundee, East (Mr. Wilson), for Gordon (Mr. Bruce) and for Upper Bann (Mr. McCusker) would agree that the burden of proof must rest with the Minister.
However, when the Committee is consolidating a measure, these provisions get lumped together, and the advisers say, "It is in there, Minister; we will keep it in; it is easier, and it might be useful". Can the Minister give examples where the provision that he is consolidating has been helpful, and where the action that he describes has been taken? Unless he can do that, I do not see how the Committee can be satisfied.

§ Mr. Ancram
I suspect that the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) was making a second speech rather than an intervention. Many years ago, an experienced debater told me that if one wanted to disrupt things, one should claim that black is white and challenge the opponent to prove that black is black. In the absence of such proof, one should suggest that one is right. I think that the hon. Gentleman and I must have gone to the same debating expert, because he seems to have used that technique this evening.

§ Mr. Home Robertson
rose——

§ Mr. Ancram
The purpose of the codification is to ensure that it is a defence if somebody who would otherwise be found guilty of an offence can show that certain things have happened. It is not just a question of the person charged being able to prove that the offence is due to a mistake, but that, under the subsection, he was unaware that he was depositing the materials otherwise than in accordance with a permission granted in subsection (1)". The hon. Gentleman will find that that last part contains a severe qualification of the preceding parts. The law exists to cater for those who might otherwise find themselves charged, and who have contravened this provision by mistake, because they were instructed to do so or because they were relying on information supplied to them. There is, therefore, a safeguard. In the absence of evidence to show that those safeguards have been operating unfairly, and that people knowingly guilty of the offence have walked free, I hope that the hon. Member for Glasgow, Cathcart (Mr. Maxton)—who has a reputation 392 for looking after and protecting the rights of accused persons—will agree that it is important that this sort of provision should be re-enacted.

§ Mr. Home Robertson
I tried to intervene in the Minister's speech, but I failed to catch his eye. The best definition of "a mistake" that I could give is to break the law. Someone who had broken the law could defend himself by saying that he had made a mistake by breaking the law. Presumably, such a defence would work. However, the Minister could resolve the problem very quickly by telling us how often, if at all, successful prosecutions have been brought under the legislation that has gone into this consolidating measure.

§ Mr. Maxton
In my original remarks I said that I welcomed the fact that the Parliamentary Under-Secretary of State, the hon. Member for Edinburgh, South (Mr. Ancram), rather than the hon. Member for Eastwood (Mr. Stewart), would be replying to the debate. However, having listened to his reply, I regret having said that.
The hon. Member for Eastwood has been giving us very reasonable replies all evening and we have proceeded fairly rapidly as a result, but things have become snarled up since the hon. Member for Edinburgh, South arrived. He is incapable of giving answers that make any sense. My hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) — unlike the hon. Member for Edinburgh, South, who is his pair, I can say it straight out — asked a perfectly reasonable question. How many prosecutions have there been? If the Minister cannot give us an answer now, my hon. Friend and I will table a series of parliamentary questions asking him how many have taken place.
It is not good enough for the Minister to say that the legislation works. It is not good enough to say that it has worked and will go on working, so we should leave it alone. The whole purpose of consolidation legislation is that the Minister has an opportunity to look at each part of it and say that this or that is no longer necessary or needs changing. The Minister has not proved to my satisfaction that this legislation is necessary. He has not said that there have been many prosecutions, or that it has stopped people from putting building materials on the road, although that is presumably its purpose. We do not know whether it has stopped people creating traffic hazards. He has not produced any evidence to prove his case, so I am loth to withdraw the amendment. However, as I agree that it would make the clause rather more punitive than would be my wish for the law, I beg to ask leave to withdraw the amendment.

§ Mr. Craigen
I would welcome the Minister's comments on three points. One is that the permission of a roads authority is required only in respect of the occupation of part of public roads and not private roads. COSLA put the point to the Minister—[Interruption.] The Minister appears to have difficulty hearing me because of the hubbub in the Chamber—usually he says that I speak too loudly. I shall begin again.
I understand that COSLA, suggested to the Minister that the permission of roads authorities should be required only 393 in respect of the occupation of part of public roads and not private roads. Will he comment on that? Secondly, COSLA said that there was no provision for a roads authority to charge a fee for such permission. It believes that a roads authority should be empowered to charge fees where it is intended to occupy parts of roads for building purposes.
My third point concerns the transfer arrangements, although they may be taken care of later in the Bill. There will be manpower implications for the roads authority because of the additional work that it will take on, most of which is currently done by district councils.

§ Mr. Ancram
If the hon. Gentleman will permit me, I shall write to him about his first two points, as I want to give him a full answer on the consideration given to the matters raised by COSLA.
On the hon. Gentleman's third point, as he knows, a district council is unnecessarily involved in issuing a consent which it cannot give without consulting the highway authority, so there is a degree of duplication. He referred to the transfer of resources. Currently, both authorities are involved and, as district councils have no road functions remaining, the Government felt that it was a good opportunity to incorporate the provision in the Bill and transfer the function to the roads authority so that it is in the hands of one authority only. Perhaps the hon. Gentleman's case is less positive than it might be when we arrive at a later stage of the Bill.