§ * EARL FORTESCUE
rose to ask whether the attention of His Majesty's Government had been called to the serious damage lately caused to a main road in Devonshire by the laying of an underground telegraph line and by excessive traffic in connection with work carried out on behalf of the Postmaster-General; whether they were aware that heavy charges had been thereby imposed on the ratepayers of the county; to enquire what steps the Government proposed to take by way of compensation; and to move for Papers. 429 The noble Earl said: My Lords, a little more than eighteen months ago the Post Office made a contract for delivery of cable at certain points on roads in Devonshire, and we very soon had occasion to find that serious damage was being done both by those employed by the Post Office and by the contractor. So far as the latter is concerned, the county is suing him now for the damage done by him, and I shall not say any more on that subject except to express the hope that the noble Earl who will reply for the Post Office will be able to give an assurance that the contractor will not be allowed to plead the privilege of the Crown in extenuation of the charge we shall bring against him of extraordinary traffic.
Dealing with the damage done by those who were acting for the Post Office, I have to state that within a month or less of their commencing operations the district surveyors were reporting that some of the drains under the roads had been altered so as to prevent the proper flow of water, that the trenches in which the cable was laid had been overfilled and were six inches higher than the proper surface at many points of the road. Two months later the trenches were still reported to be very bad in several places. It was also reported that county bridges had been seriously damaged by the ends of arch stones being broken off, that the cable pipes were not fully laid in concrete as they should have been, and that some culverts had been partially blocked up, the cable being taken under them in a manner which interfered with the flow of the water. The superintendent engineer, on behalf of the Post Office, wrote, in July of last year, on the question of a contribution being made by the Department towards the repairs, admitting thereby that his Department were at fault.
Nearly a year after the work had been completed our county surveyor, on the suggestion that the damage done had been made good in a satisfactory manner, reported that the filled in trenches were still left too high, and that an obstruction had been created on one of the county bridges by the placing of the cable against a parapet and casing it in with concrete in such a manner that it projected eighteen inches or thereabouts. The correctness of these complaints was substantially admitted at the end of last year in a letter from the 430 Department, in which proposals were made in regard to the bridges and the manner in which they had been repaired. There are two or three points in which I think the proceedings of the Post Office are legitimately subject to complaint and criticism. My noble friend has been good enough to supply me with a copy of the contract made with Messrs. Siemen for the delivery of the cable, and I observe that, although there were in the contract provisions to secure the taxpayer from anything that might be done to his detriment in the way of the quality of the goods supplied or the like, no consideration whatever was given to the interests of the taxpayers who are also ratepayers in the localities affected. There was no suggestion of inquiry being made of the county authority as to when the work could most conveniently be done, and the manner in which what was necessary could be carried out with the least damage to public property; and there was nothing in the contract to compel the contractors to use the railway rather than the road where possible, even though it might be a little more expensive. The Department is very much to blame in that respect, for, to effect a saving of a few pounds on the contract, they have allowed damage to the extent of hundreds of pounds to be done to the roads, liability for which they have hitherto repudiated.
I shall no doubt be told that there would have been nothing to complain of had our roads been up to the mark; but the roads are good enough for the ordinary traffic, and I am not aware that it is any part of the duty of a local authority to maintain their roads in a condition good enough to carry the excessive weight of a cable, which is put down perhaps once in a generation. Unless I am very much mistaken, the War Office have admitted that principle in their dealings with local authorities, inasmuch as they have on various occasions given contributions in aid in respect of serious damage caused by heavy traction in connection with manœuvres and the like. The Department in this case have not recognised the obligations imposed upon them by 26 and 27 Vict., cap. 112, in which it is laid down that a company—and, I presume, a Government—which opens or breaks up a public road shall, with all convenient speed, complete the work, fill in the ground, make good the surface, generally restore the road to as good a condition as it was in before, and carry away all the rubbish. 431 They are also bound to pay all expenses for keeping the road in good repair for six months, so far as such expenses may be increased by the opening or breaking up of the roads. The line taken, I believe, by the Department is that our allegations with regard to the damage done to the roads are exaggerated, if not untrue, but they have had to admit the truth of these allegations in regard to the damage done to the bridges, culverts, and drains, and I think it is rather too much to assume that our district surveyors and highways committee are conspiring to make false statements on one point although their statements on others have been admitted by the Department to be correct.
§ LORD CLIFFORD OF CHUDLEIGH:
My Lords, before the noble Earl replies, I should like to ask whether he can give us any idea as to the saving made by the Post Office upon this contract as compared with the cost if the railway had been used where-ever possible. In many cases this cable was carried for thirty or forty miles along the road when it might just as well have been conveyed to various points on the railway and brought from there. The saving of a few pounds in this way on the contract has entailed upon the local authority an expenditure of many hundreds to put the roads right. It would have been very much cheaper, not only in this case but in others, for the local authority to have paid the difference between the two prices than to have to repair the damage done by this heavy traffic along roads which it was never contemplated would be used for this purpose, and which, without an enormous expense, are absolutely unsuited to it.
§ THE EARL OF GRANARD:
My Lords, this matter has been in dispute with the county council for the last eighteen months. We have been constructing a cable direct from London through Devonshire in connection with the Western Cable Company. We invited tenders in the usual way, and that of Messrs. Siemen and Company was accepted. This firm contracted to supply us with cables at different points throughout the route. The contract was made in the usual terms of all Post Office contracts. There was no specification requiring the cable to be taken by rail or road. The noble Earl mentioned that the roads in question were unsuited to this heavy traffic, and there can be no doubt that at a time of the year when the weather is wet 432 the harm done to the roads by this abnormal traffic is certainly great. As regards the liability of the Post Office, I do not think it would be fair that they should accept responsibility for the actual work done by the contractor, who, I am legally informed, is entirely responsible for any damage he has done, and if proceedings are taken against him in the usual way he will be liable for that damage. The noble Earl stated that a great deal of damage had been occasioned by the actual laying of the cable, irrespective of that occasioned by the contractor. As far as that is concerned, we have sent down engineers on many occasions and done our best to meet the county council in the matter. I have in my hand a report received from the two superintendent engineers of the southern district and also from Mr. Stubbs, assistant engineer in chief, who was specially sent down in December last, to go into the matter. Mr. Stubbs reports that the whole of the roads of the council have been carefully inspected, and that, speaking generally, the pipe track is in excellent order, except where in a few places it has been torn up by carriages going down hill with locked wheels. He says there is no justification for the Post Office being called upon to carry out any further work, except to smooth down the trenches in the few places where they have lately been disturbed by the traffic, and adds that the other complaints made by the county council as to the weakening of the structure of their bridges by these operations are without foundation. As far as the Postmaster-General is concerned, he is willing to make good anything that is wrong with the surface of the road; in fact, only the other day I asked my noble friend whether it would be any use sending down another engineer to view the road, and he wrote to the chief clerk at Exeter, who replied that the road was now in proper order again and there was no necessity for sending the engineer down. I am informed that the roads of Dartmoor are not up to the usual standard. I may mention that we have run a cable from London to Edinburgh without any similar trouble arising, and it is only in this small section of road in Devonshire where difficulties have occurred. As to the question put to me by Lord Clifford, the point is rather a large one and I am not in a position to give him an answer at the moment; but, if he wishes it, I shall be glad to apply at the office to-morrow and to furnish him with 433 the actual details. I have nothing further to add except to say that, so far as the Post Office are concerned, they are perfectly willing to make good any damage which they may do to roads or bridges, but as regards damage done by contractors, it is expected that the county council will take action against them.
THE EARL OF ONSLOW:
My Lords, the grievance felt by local authorities is not confined to the Post Office but extends to other Departments, more particularly to the War Office. The noble Earl who raised this question said that, so far as he was aware, there was always a readiness in the case of the War Office to meet extraordinary expenditure caused by extraordinary traffic; but I am afraid that is not the experience which obtains in other counties. I happen to live within a short distance of Aldershot. Very large building operations are from time to time conducted in that neighbourhood on behalf of and under contract with the War Office, with the result that the roads are very seriously damaged indeed, and the County Council of Surrey have been trying for some years to get redress from the War Office, without that measure of success which I think they were entitled to expect. The noble Earl who represents the Post Office says that liability rests entirely with the contractor, and that the remedy of the County Council of Devonshire is to proceed against him. That is not what the War Office say. They apparently think that the contractor is absolved under Section 12 of the Locomotives Act, 1898; at any rate, those who execute contracts under the War Office put forward the words of that section, which provides that the liability rests upon—the party by or in consequence of whose orders the extraordinary traffic has taken place.
It cannot be denied that that party is not the contractor but the person under whose orders the contractor acts. Therefore it is the Government Department which is liable; but your Lordships are well aware that there can be no legal liability upon a Government Department because it can always plead privilege of the Crown. I do not for a moment say that any of the Departments of the Government would endeavour entirely to escape from their just obligations on such a plea as that, still less do I say it of the War Office. In the case 434 I have in mind the War Office sent down and made inquiries into the amount of damage done to the roads, and were advised by their own surveyor that in this particular case there was damage done to the extent of £700, the amount necessary to restore the roads to the condition in which they previously were, and that an expenditure of £656 would be required to strengthen the roads for such traffic as was likely to be put upon them in consequence of the new buildings which the War Office had erected. The Department expressed their willingness to pay the amount necessary for restoration, not under legal liability but because they recognised that they had a moral obligation towards the county council, but said they must go to arbitration on the question of the amount necessary for the strengthening of the roads. I do not know whether that arbitration has been conducted or when it is going to take place; but what I do say is that when a Government Department admits that an expenditure of this kind is necessitated, and in respect of which they have a moral obligation, the sum ought to be paid to the county council. The Government Department ought to stand the racket of the arbitration, and, if the arbitration goes against them, so much the worse for them. But there is the expense incurred, and I think the Government Department ought to make it good to the county council. Therefore I hope that when the Government go into this matter they will consider it as a whole, not in connection with the Post Office alone, and that they will not seek to shift expenditure from the lightly-burdened taxpayer on to the shoulders of the overburdened ratepayer.
§ * THE MARQUESS OF BATH:
My Lords, I am certain that if there is one member of your Lordships' House who will thoroughly sympathise with all that has fallen from Earl Fortescue it is my noble friend opposite (Lord Fitzmaurice), who has in past days done such service to his own county in negotiations with the Government of the day on the road question generally. I wish my noble friend Earl Fortescue joy if he adopts the advice given to him by the noble Earl who replied for the Post Office and begins to go for the contractors. We have ourselves tried to do it in our county on more than one occasion, and I do not think I have ever come across more slippery customers to deal with in regard to the damage they do to the roads. I would 435 urge that this question deserves most serious consideration at the hands of the Government, especially with regard to the large concentration camps, whether at Aldershot or on Salisbury Plain. When a Government contractor in carrying out work for the benefit of the country at large, does considerable damage to the roads, it is extremely unfair on the local ratepayer that practically the whole of that burden should be thrown on his shoulders. I submit that it should be a national charge. I may be told that we get a contribution in lieu of rates, but in the county to which I belong we have just had an example of the manner in which that works. In this case the War Office suddenly came down on a district council with a request to take over a number of roads which were really private roads, and when they demurred the answer they got from the military authorities was—Very well, we will withhold our contribution in lieu of rates.So that although we are told that we receive contributions in lieu of rates, as a matter of fact the weapon is always held over us and we are bound to do exactly what we are told and to comply with any demand made, on the threat that if we do not do so we shall get no contribution. This is not only a Devonshire and a Wiltshire matter; other counties are affected as well; and the time has come when the question of Government contributions should be taken into consideration and when the local ratepayers should no longer be charged for what are, after all, works for the national benefit.
THE LORD STEWARD (EARL BEAU-CHAMP):
My Lords, I rise only to refer, in the absence of my noble friend the Under Secretary of State for War, who has been obliged to go to Edinburgh on business connected with his Department, to the special matter mentioned by the noble Earl the Chairman of Committees. Not having received any notice of the special instances referred to by the noble Marquess who has just sat down, I am afraid I cannot offer him any explanation as to the roads in Wiltshire to which he referred. But with regard to the question of the roads in Surrey, I am afraid that, 436 on behalf of the War. Office, I can hardly accept the interpretation of the Locomotives Act as applied to this matter which was given by the noble Earl. The War Office insert a clause in all their contracts by which they throw upon the contractor the liability for damage caused by extraordinary traffic. It was on the strength of that clause that the War Office repudiated any liability, and agreed finally to take the matter up with the contractors themselves. That matter is now being raised; the proceedings are being taken by way of petition of right, which is brought by the largest firm of contractors for the payment of the balance due on the contract. There is a sum of money due to them from the Crown which we are withholding pending the result of these proceedings. Meanwhile the point at issue has been referred to arbitration. I was sorry that the noble Earl was not pleased with the action of the War Office in referring this matter to arbitration. These questions have also arisen in the case of five or six other local authorities, but there has been no objection on their part to accept arbitration as a means of solving the difficulty, and I am sorry that the noble Earl the Lord Chairman, on behalf of Surrey, should not see his way also to regard arbitration as a very suitable solution of any controverted question of this kind.
THE EARL OF ONSLOW:
I should like to explain that I took no exception to arbitration. My point was that I thought the War Office ought to pay what their own valuer admitted was the damage done, and then rely upon recovery by arbitration from the contractor.