§ 4.18 p.m.
§ Report stage continued.
§ THE LORD CHANCELLOR
My Lords, I do not know why good financial news was followed by such a marked exodus from your Lordships' Chamber —whether it was to convey the news elsewhere or to get away from the discussion of brucellosis. Brucellosis, as some of your Lordships have made plain, is a most important subject; and on this Amendment there are two entirely different points which we must keep distinct. The first is whether the noble Lord, Lord Burton, was right on Committee stage in taking the view that this animal welfare problem is one which ought to be dealt with in a Ministry of Agriculture Bill, since it relates to one problem of disease only; or whether it is suitable that it should be dealt with in this Bill. Plainly, many of your Lordships know a great deal more about brucellosis than I do; but I am told that the relevant facts include the following.
The great problem with brucellosis is that of effectively diagnosing it. That is the main reason why it does not rate as a notifiable disease, since the genuine symptoms cannot readily be detected by owners or stockmen. There are tests to establish the presence of the disease, but these are bedevilled by the widespread vaccination of adult cattle with Strain 19. By way of result, cattle so vaccinated cannot be distinguished in practice from animals which are genuinely infected. This makes the difficult task of diagnosing brucellosis even more difficult. Adult vaccination with Strain 19 stopped in 1967; but it will be 1973 before the great majority of these vaccinal reactors will have been culled from the national herd. Here is one of the main keys to the Ministry's policy towards eradication; that is to say, a compulsory slaughter programme at this stage would involve the wasteful slaughtering at appreciable expense of large numbers of healthy animals simply because they react to adult vaccination.
In 1967 the Ministry introduced the present Brucellosis Accredited Herd Scheme, a voluntary scheme, and the herds of those participating in it were 678 required to undergo a series of qualifying tests. In the event of a failure in one of these tests the owner must test the herd at his own expense and cull the resulting reactors. After successfully completing qualifying tests an official blood test is carried out. The reactors discovered at this stage are slaughtered, with full compensation, and the owner is then qualified for an accredited herd register.
Despite criticisms to the contrary, progress with this scheme has been encouraged, especially when allowance is made for the long standstill period of the foot and mouth epidemic of 1967–68. Up to the end of November some 6,250 herds in Great Britain have been registered as accredited, and a further 7,150 were undergoing qualifying tests. In practice, the timetable of the economic approach to eradication rests on the interplay of two main factors. First, we do not want unnecessarily to slaughter large numbers of vaccinal reactors, and secondly, we need a reservoir of brucellafree stock from which to replace infected animals that have to be slaughtered. To eradicate now would be premature, and in fact we gain doubly by deferring compulsory eradication. As each month passes, so the number of surviving vaccinal reactors diminishes and so also the reservoirs of disease-free replacements expands. In fact, to go for compulsory eradication now would call for far more replacements than in, say, three years' time, when the vaccinal reactors will virtually have disappeared from the national herd.
My Lords, I ought perhaps briefly to refer to an answer by my right honourable friend, the Minister of Agriculture, Fisheries and Food, which he gave yesterday in another place. He said:The main obstacle to an early start with area eradication is the existence of large numbers of vaccinal reactors. To start too early would mean the unnecessary slaughter of those animals and would cause an unduly large number of replacements. These factors will be progressively culled from herds over the next three years. In two year's time, for example, some 15,000 to 20,000 accredited herds should, on certain assumptions, provide sufficient replacements for a start to be made with area eradication on a worthwhile scale. My aim is to start limited eradication projects in specially selected areas in 1971, and I am already looking at the practical requirements. The annual cost will depend on the scale, timing and terms of the compulsory scheme.679 Then my right honourable friend was congratulated on making what was called a "tentative decision", and he replied:What I said was not tentative. I said that I was considering practical schemes for area eradication in certain areas in 1971. That is positive. This is a satisfactory proposal, bearing in mind the increasing progress which we are making. Since I made my statement on 5th November, the level of applications has been rising. Currently it is exceding 150 a week. Therefore, very good progress is being made "—[0FFICIAL REPORT, Commons, 10/12/69, col. 414.]I do not think that I ought to go further than that, because next week, as your Lordships will know from the Order Paper, my noble friend Lady Summerskill has down an Unstarred Question under which the whole question of brucellosis can be considered. But I would have submitted, in agreement with the noble Lord. Lord Burton, that the problem of this particular disease is one which really ought not to concern us on this Bill, though I would certainly pass on to my right honourable friend, the Minister of Agriculture, Fisheries and Food the suggestion which has been made about insurance when the Scheme is in force.
The second question, which is an entirely different one, is this. There is no doubt at all that the effect of this Amendment would be that where, because of trespassing cattle, an accredited scheme herd becomes de-accredited, the farmer whose cattle has wandered will be absolutely liable, whether it is his fault or not. This Amendment is proposed to a clause dealing with strict liability. This is very unusual in our law. All our law of negligence is based on this: if A owes a duty to B to take reasonable care, he may be liable for any damage sustained if he has failed to do that which a reasonably careful man would have done, or has done that which a reasonably careful man would not have done. But if it is not his fault he is under no liability. The principle of strict liability in Clause 4 is this historical strict liability for trespassing cattle, which usually of course do very little damage indeed, and it saves actions and trouble. It is a hard line, but every farmer knows what it is.
What I have not heard yet is what justification there can be for a man who has chosen to have an accredited herd 680 and then suffers what it is admitted may be a crippling liability to put this crippling liability on a neighbour who has done nothing wrong at all and who has taken every care himself. This point, as your Lordships may remember, was raised during the Committee stage by the noble Lord, Lord Clitheroe. He said:I take it that the noble Lord, Lord Rowallan, in his Amendment means that the straying livestock is straying owning to the negligence of the owner.Then he asked what might happen where it was a third party who was at fault. The noble Lord, Lord Rowallan, said:The authorities are very strict about having double fencing where there is the differential between the two".Lord Clitheroe replied:I know that that is so. But it is an important point that the damage should be due to the negligence of the owner of the straying animal."—[OFFICIAL REPORT, 27/11/69; col. 1410.]Under this Amendment that is not so. The unfortunate neighbour's liability is not based on negligence at all; it is strict liability. That means that the unfortunate neighbour, who has taken every care that his cattle should not stray, will be liable for what is described as a crippling liability which the man who has the brucellosis-free herd is going to impose on him, although the damage is not at all his fault. After all, our ordinary law of negligence, in saying that, if you do not take proper care and damage your neighbour you are liable, but if you take proper care you are not, has a moral principle behind it and makes sense.
I should think that in relation to brucellosis herds in particular we ought to bear in mind that under the Scheme Rule 1 says—The owner shall ensure that his cattle do not come into contact with other cattle.That rule, I think, operates from the date of application for registration. Rule 6, which becomes operative from the date of passing the first qualification tests, reads as follows:The owner shall provide and maintain boundary fences/walls which will prevent contact between his herd and other cattle.It would seem to me extraordinary to extend the Common Law so as to enable a man who is not carrying out his own contractual duty to recover damages from his neighbour who has not been at fault at all. I am afraid that, for those 681 reasons, I must ask your Lordships to reject the Amendment, if, as I hope will not happen, it is pressed to a Division by the noble Lord.
§ 4.30 p.m.
§ LORD NUGENT OF GUILDFORD
My Lords, we have all listened with attention to the noble and learned Lord's exposition on this difficult and complicated problem. There are, of course, two aspects of it: the legal one, which the noble and learned Lord dealt with second, and the agricultural one, which he dealt with first. I would say to the noble Lord, Lord Rowallan, that he has my sympathies 100 per cent. for the substance of his complaint, but I am bound to say that I do not think this is the right way to cure it. This is not the right Bill in which to put such an. Amendment. As the noble and learned Lord, the Lord Chancellor, has just explained, if this new clause were to be put in the Bill as it is drafted, it would have terribly severe consequences for the owner of any straying cattle from a non-accredited herd which happened to contact the cattle of an accredited herd, and would go far beyond the general spirit of the Bill.
The real difficulty of this case, and the reason, I suspect, why many noble Lords on all sides of the House came in to support the noble Lord, Lord Rowallan, is because the brucellosis eradication scheme is at present in a very unsatisfactory state. I thought that the noble and learned Lord the Lord Chancellor had certainly equipped himself with all the best possible agricultural arguments to show that good progress was being made. I am glad to hear it and that the Minister of Agriculture sees a prospect of setting up eradication areas, with slaughtering and compensation, within the next two or three years. Most of us have felt that this ought to have been done long ago.
There is no doubt at all that an accredited herd now is at a very severe disadvantage. As a dairy farmer becomes accredited, he culls out reactors and off they go into the market, and other dairy herds buy them. This is a very unsatisfactory position. So I very much sympathise with the noble Lord in his plea for some relief to this situation. I also understand what I am sure 682 he is going to say: that the condition which is in the brucellosis scheme. that a farmer should fence in his animals so that they cannot contact other cattle, is perfectly sensible but that in practice it is impossible to do it 100 per cent. and there may be cases where such contacts are made. These are very good reasons for saying that the Minister of Agriculture ought to try to think of some way in the interim two or three years of improving the position under the brucellosis scheme and, if he can, of accelerating the setting up of accredited areas. But I do not think that making this Amendment would be the right way of trying to cure the scheme. It is certainly the wrong Bill to put it in. If the noble Lord reads the Long Title of the Bill, he will see that it simply does not fit here at all.
If the noble Lord wishes to proceed with an Amendment of this kind, I think, as I have told him privately, that the right place is to the Agriculture Bill which is now proceeding in another place. That is a wide, miscellaneous Bill, covering veterinary matters, and on which I suppose that he could put down a new clause which would perhaps improve the basis of the brucellosis scheme. That would seem to me to be the right procedure, rather than trying to insert a new clause into this complicated, tight little legal Bill we have before us now. Much as I sympathise with the noble Lord, if he pressed this Amendment to a Division I should feel absolutely torn, because my personal sympathies are entirely with him, although I feel that his method of trying to cure his problem is the wrong one. So I hope that he will not press it now. Perhaps his ingenuity may find another new clause to put down on the Agriculture Bill, when we may ventilate this matter further.
§ 4.34 p.m.
My Lords, may I ask whether the insertion of the following words:Where livestock belonging to any person owing to his negligence strayed on to land used by a herd",would meet with the approval of the noble and learned Lord the Lord Chancellor and of the Front Bench of the Opposition? I am willing to do that. I am concerned that we should not wait 683 all this time. Long waiting makes the heart sick. Owners of accredited herds have been heartsick for many months, and I hope that it will not be necessary to keep them heartsick any longer.
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, may I, for clarification, ask the noble Lord what difference these words could possibly make? A farmer has a duty to fence in; so if his cattle get out he is automatically negligent. There cannot be any way round this.
It is not the case, as may have been suggested, that when cattle stray from an accredited herd on to unaccredited land the damage is done. It is only when non-accredited cattle stray on to the holy ground of an accredited farm that damage occurs. I believe that in general practice, though perhaps not in law, it is a question of fencing in and not of fencing out. May I also ask—I hope your Lordships will forgive me for straying a little—what steps have been taken by Her Majesty's Government to warn the general public of the dangers which they are putting in the way of the farmer? For instance, the police, without any malice or carelessness on their part and merely following hundreds of years of practice, finding cattle straying on the road, open the nearest gate and push them in. I myself have warned the Chief Constable of Ayrshire of the danger of this and he has told me that he has informed all his police that they must not do any such thing unless they are absolutely certain that the farm into which they are putting the cantle is not accredited.
The Electricity Board also have issued instructions to all their linesmen, who are crossing land constantly, that not only must they close every gate they come to, but also secure the gate. I have received most courteous replies to both those suggestions and assurances that instructions have been issued and would be complied with. I hope that the Government will do something to bring the attention of the public and in particular of the local authorities to the danger of these practices. I am still recalcitrant about the withdrawal of this Amendment.
My Lords, no damage whatever would be done to the non-accredited herd. It is the accredited herd which is getting into trouble.
§ THE LORD CHANCELLOR
My Lords, this is the Report stage of the Bill and, therefore, apart from the Mover of an Amendment and the noble Lord who replies, no other noble Lord is entitled to speak twice. Therefore, I must ask leave of the House in order to reply to the question that has been raised. To insert a reference to negligence in Clause 4, which relates to cattle trespass generally and imposes strict liability, would be completely to re-cast the whole of the clause. I say this while realising that it is always difficult to advise on an Amendment 1 have not seen. I will certainly convey to my right honourable friend the Minister of Agriculture everything which the noble Lord, Lord Rowallan, has said. Meanwhile, I venture to hope that he will think it right to accept the advice of the noble Lord, Lord Nugent of Guildford, and reserve further action for the Agriculture Bill.
My Lords, with regret, on the assurance that this matter will be brought to the attention of the right honourable gentleman the Minister of Agriculture, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Exceptions from liability under sections 2 to 4]:
§ 4.40 p.m.
THE LORD CHANCELLORmoved Amendment No. 3:
Page 2, line 36, leave out from ("proved") to end of line 3 on page 3, and insert ("either—
§ The noble and learned Lord said: My Lords, several noble Lords were not 685 happy about the terminology of this subsection dealing with the position of trespassers. The Amendment substitutes fresh criteria for those used in the Bill to impose liability for damage done by animals to trespassers. As a result, the keeper of an animal will be strictly liable under Clause 2 for any injury he may cause to a trespasser only where, first, the animal is kept for the purpose of guarding persons or property, and, second, the use of the animal for that purpose is not reasonable.
§ The test of reasonableness in the use of the animal for guard purposes will, in practice, never be satisfied for animals of a dangerous species. It is unthinkable that a court could find circumstances where the use of a lion or snake to guard property was justified. There is therefore no need to distinguish between dangerous species and others. On the other hand, where normally harmless animals are trained for guard duties so that they will act against intruders, their use for the protection of persons or property will be justifiable or not, depending on the circumstances. The courts can be expected to have regard in this connection to any warnings given to potential trespassers, to the obstacles which a trespasser would have to overcome before coming into contact with the animal and to the likelihood of innocent trespassers unwittingly straying on to the premises. The use of a fierce guard dog could be expected to be held unreasonable to protect an open field on which hikers or children are likely to wander, while it might not be unreasonable to use such a dog to protect a factory against intruders who had managed to scale walls or railings.
§ The Amendment covers the protection of persons as well as property. It is not unreasonable, for instance, that elderly persons living alone should keep a dog as a safeguard against intrusion. The Amendment is intended to accord with the general trend of the law on liability of occupiers for the safety of their premises. The authorities are not consistent, but they show a tendency to permit the creation of reasonable, unconcealed dangers which will deter trespassers from intrusion into private property, but not to permit the creation of a hidden danger or the doing of any 686 acts deliberately intended to do serious harm to trespassers known to be there.
§ I hope the House will support this Amendment. In substance, what we have done is to give up trying to find some phrase that will cover any one of a very large number of varying circumstances. We have laid down the test of reasonableness and, recognising that the circumstances will vary very considerably, we have left it to the judge hearing a case to decide what is reasonable in all the circumstances of the case. I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, may I thank the noble and learned Lord the Lord Chancellor for his Amendment, which certainly goes a long way to meet the point that a number of noble Lords made on the Committee stage. I do not wish to sound unappreciative, and I entirely follow the noble Lord's argument. But, I still have three points of qualification that I should like to make, before I agree that this is the right Amendment to put in here. The first point I would query is whether it is right to put on the keeper of the dog—and of course we think first of the ordinary householder who has a house dog which is kept at a watch dog—the onus of proof. I wonder whether the subsection should not be constructed the other way round, thus throwing on the trespasser the onus of proving that it was unreasonable. I am speaking now with regard to paragraph (b) of the noble and learned Lord's Amendment.
The second point concerns the method which the noble and learned Lord has now chosen for dealing with this difficult and complex matter of dangerous and tame animals. I quite see the advantage of getting rid of differentiation in this matter, but it seems to me that dealing with it in this particular way could lead to difficulties. Not least, I should have thought is the difficulty that paragraph (a) says exactly what we do not want to do. It is going to say that the animal" was not kept there for the protection of persons or property", when nine times out of ten, the animal will in fact be kept there for the protection of persons or property; and we all wish that it should be there for that purpose.
We have a Bill with the most praise-worthy intentions, notably inspired by 687 the noble and learned Lord the Lord Chancellor, and it seems unfortunate that it should contain a paragraph saying exactly what we do not mean. I quite understand what the noble and learned Lord is saying with regard to the way this provision will be construed in the courts; nevertheless, it is going to say what I suggest we do not mean. Looking at it as a layman. I have should have thought the Bill would have been clearer if it had continued with paragraph (a) of subsection (3) drafted as it now stands. It deals separately with the dangerous species, as against the non-dangerous species, and this makes the intention of the Bill absolutely clear. The noble and learned Lord the Lord Chancellor may feel that this form would create other difficulties, but it seems to me that there would be great advantage if this Bill, which in all other respects is so admirably clear, could continue to be clear on this particular point.
I should be grateful if the noble Lord would deal with these two points: first, the question of onus of proof, and whether it would be possible to redraft this subsection so that the onus of proof is thrown on to the trespasser to prove that it was not reasonable; and, secondly, the question of making the Bill say what we intend it to mean.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords. I should like to thank the noble and learned Lord for putting down his Amendment, which has to a great extent met my Amendment. I was chiefly concerned with guard dogs, as I stated at the time. I had hoped that in paragraph (b), about which I am talking, the noble and learned Lord the Lord Chancellor might have had, instead of the word "keeping", the word "finding". As I pointed out at the Committee stage, a man may have a dog guarding his property that is not kept on that property. It may come to the property every night with its keeper. Therefore, I should have thought the word "finding" would have covered the position better than the word "keeping". I have nothing more to say on this point.
Regarding paragraph (a), I agree that a man cannot keep tigers, lions or cheetahs to deter people from entering his premises or to deter them from entering a 688 field. I cannot agree with my noble friend on the Front Bench regarding paragraph (a). I agree with him regarding the onus of proof, but I cannot agree with him the whole way. I thank the noble and learned Lord for the new paragraph (b)—apart from the word "keeping" which I should have liked to see changed to "finding"—because he has gone a long way towards meeting my point.
§ LORD CONESFORD
My Lords, the Amendment which the noble and learned Lord the Lord Chancellor has put down exactly meets the point which I ventured to include in the Amendment that I put on the Order Paper at the Committee stage. In fact it goes very slightly further in that I did not challenge paragraph (a). I must say that I was rather gratified, on reading the Amendment which the noble and learned Lord the Lord Chancellor had put on the Order Paper, after consulting the Law Commission, to find how near I had come to getting it right—a rather rare experience. In my Amendment, I had not challenged the onus of proof, and as the present Amendment completely meets my point I can only thank the noble and learned Lord for it.
I agree with my noble friend Lord Nugent that part of the new paragraph (a) looks a little curious to the layman at first sight. But the layman must not stop there; he must go on to read paragraph (b), because otherwise the wording would be nonsense. But if he goes on to read paragraph (b), I think that the precise point which we all have in mind, apart from the question of onus of proof, has been met by the noble and learned Lord, and I thank him for it.
§ LORD LEATHERLAND
My Lords, I felt some sympathy with the noble Lord, Lord Nugent, when he drew attention to what appeared to be the some-what incongruous wording of paragraph (a):that the animal was not kept there for the protection of persons or property".But on reading paragraph (a) in connection with paragraph (b) I thought I saw the common sense of it. Under paragraph (a) it may well be that I keep a pet dog—not the dog that I keep as a fierce watchdog. But it may well be that if a burglar enters my drawing-room my little pet dog will bite him, or the 689 ferret which I keep for the amusement of my children may bite him also; and that covers paragraph (a).
Then we come to paragraph ((b), which I think is perhaps the paragraph to which the noble Lord, Lord Nugent, has not paid sufficient attention. It says:if the animal was kept there for the protection of persons "—that is to say, if it is a watchdog, if it is an Airedale, or if it is an Alsatian—then the owner of the dog is exempted from any liability if he was keeping it there for a purpose which is not unreasonable. If you are trying to protect your house against burglars, then perhaps it is not unreasonable to keep an Airedale or an Alsatian, whereas it would clearly be quite unreasonable to keep a cheetah, a leopard, a lion or a tiger. Therefore, although at first sight it may well be that the noble Lord, Lord Nugent, was right in the interpretation he put upon this paragraph, I think that the Amendment moved by my noble and learned friend the Lord Chancellor is quite correct and will cover every possibility.
§ THE LORD CHANCELLOR
My Lords, may I reply to two points raised by the noble Lord, Lord Nugent? As to the first point, onus of proof, it is submitted that this is right because it is to be a defence that the animal was not kept for the purpose stated, and the only person who has any knowledge of this will not be the trespasser but will be the keeper of the animal. In relation to the second point, Clause 5(3) is concerned only with strict liability. There will be no such liability where the animal is kept for any purposes other than protection of persons or property; for example, as my noble friend Lord Leatherland said, as a pet or, for that matter, for zoological study, or to put on show.
But it does not follow that a trespasser injured by such an animal would never have a remedy. If the animal constitutes a hidden danger he would often have a remedy against the occupier of the premises in negligence if in the circumstances the presence of the animal might be expected to draw trespassers into the area; for example, inquisitive children attracted by an interesting animal would readily be treated as im- 690 plied licensees and have a remedy as such. If the keeper of the animal is not the occupier he might be liable to a trespasser under the ordinary law of negligence—anyone, for example, inciting an animal to attack someone.
The answer to the noble Viscount, Lord Massereene and Ferrard, is in substance the same: that it is a defence. Clause 5 is simply dealing with defences of people who would otherwise be liable, and it is to be a defence that the animal was not kept for that purpose. In answer to the noble Lord, Lord Conesford, I am gratified to find that in substance in adopting his suggestion we have, I hope, this time got it right.
VISCOUNT COLVILLE OF CULROSS
My Lords, before the noble and learned Lord sits down, on the point of my noble friend Lord Massereene I think the difficulty is that the defence will not be available because, under the definition of "keeping" in the Bill, if the dog has been brought in by some organisation who produce guard dogs on a hire basis the person on whose property it is will not, I think, either own it or have it in his possession; I think it is in the possession of the person who brings it and looks after it while it is there. There is therefore a certain difficulty about this which is not covered at the moment.
§ THE LORD CHANCELLOR
My Lords, if I may speak again, I will certainly take that point into account and make inquiries about guard-dog hiring businesses.
§ On Question, Amendment agreed to.
§ Clause 6 [Interpretation of certain expressions used in sections 2 to 5]:
§ 4.56 p.m.
§ THE LORD CHANCELLOR
My Lords, Amendment No. 4 is consequential on the Amendment made to Clause 6(3)(b) in the Committee stage which inserted a reference to the head of the household, at the suggestion of the noble Lord, Lord Airedale. A corresponding reference to the head of the household in relation to animals kept by members of the household is needed in subsection (5), paragraph (a). There is no change in substance. My Lords, I beg to move.
Page 4, line 3, leave out from beginning to ("who") and insert ("he is the head
of a household and the characteristics are known to another keeper of the animal").— (The Lord Chancellor.)
§ On Question, Amendment agreed to.
LORD AIREDALEmoved Amendment No. 5:
Page 4, line 7, leave out from ("servant") to end of line 9.
§ The noble Lord said: My Lords, this is an Amendment to paragraph (b) of subsection (5) which lays down, first, that an animal's characteristics, if they are known to the servant, are deemed to be known to the master. The second part of paragraph (b) goes beyond that; it goes into the past, because it says that if an animal's characteristics "were at any time known" to a servant, still they are deemed to be known to the master. I should not have thought that this was a very useful provision. As I ventured to suggest in Committee, it would be useful only if one supposed that an animal was born with certain characteristics, retained them throughout its life and died with those characteristics. But this is not so. Experience shows that both human and other domestic animals tend normally to be boisterous when young and become considerably more docile as they grow older. But, of course, there are exceptions to this, and some human and other animals undoubtedly become cantankerous, fractious and troublesome in their old age. The point is, however, that an animal's characteristics usually do not remain the same over the years.
§ My quarrel with the second part of paragraph (b) is that it seems to interfere with the court's discretion to operate the rule of relevancy which courts have to administer every day on questions of whether or not to admit evidence. Presumably a court would admit as relevant evidence of an animal's characteristics in, say, recent months, before an incident occurred. But if the incident occurred a matter of two or three years before, the court would tend to say, "Well that evidence will not be useful to us; we rule that it is irrelevant and we do not want to hear that evidence."
§ This second part of paragraph (b) would seem to interfere with that discretion of the courts, encouraging litigants to adduce evidence of an animal's characteristics as they were known to a 692 servant "at any time"—that is what it says, at any time—in the past. I feel that these words which I seek to leave out will do more mischief than they seek to cure, and the Bill would be better without them, leaving the courts unfettered in this regard, as they ought to be, to decide what evidence is relevant, and to admit that, and to exclude what is irrelevant because it relates to a situation too far in the past. My Lords, I beg to move.
§ THE LORD CHANCELLOR
My Lords, at the Committee stage the noble Lord, Lord Airedale, criticised the paragraph on the ground that it seemed to assume that an animal's dangerous characteristics would never change, and that it might impose liability for the acts of an animal which had long ceased to have those vicious traits—that is, almost denying the power of redemption to an animal. If the Amendment is intended to meet that criticism it is respectfully submitted that it is misconceived. Even without the words which the noble Lord seeks to delete, the paragraph would still impose liability in respect of characteristics known to the owner from past experience. The only difference would be that he might not have imputed to him the knowledge of a servant who had left his employment.
My noble friend Lord Lloyd of Hampstead pointed out on the Committee stage of the Bill that the subsection is concerned with questions of knowledge of existing characteristics. If the past conduct of the animal is still relevant to the continuing existence of those characteristics, then knowledge acquired in the past should found liability. If the past conduct has become irrelevant, knowledge of it will not found liability now and the clause will not make it do so. However, paragraph (b) is sound in principle and accords with the existing law in imputing to the master the knowledge acquired by a servant who has charge of the animal and in fixing the employer with that knowledge, even though by the time when the animal's conduct causes injury the servant may no longer have charge of the animal or, indeed, may no longer be in the master's employment. In so providing we are really only applying the existing Common Law. If the animal no longer has those characteristics then knowledge of them becomes irrelevant. I hope that 693 with that explanation the noble Lord will be prepared to withdraw the Amendment.
§ LORD AIREDALE
My Lords, I put down the Amendment because when I mentioned the matter in Committee on the Question whether the clause should stand part of the Bill, I did not get any answer at all and I thought the point was sufficiently important for me to be given an answer. I now have an answer which I shall be pleased to study; and in the meantime I am happy to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Duty to take care to prevent damage from animals straying on to the highway]:
§ 5.3 p.m.
§ LORD NUGENT OF GUILDFORDmoved Amendment No. 6:
Page 5, line 18, at end insert—
("Provided that this section shall not apply to livestock straying on to public footpaths, bridleways or driftways.")
§ The noble Lord said: My Lords, I beg to move Amendment No. 6 which stands in my name and in the name of the noble Lord, Lord Henley. I should say that the noble Lord, Lord Henley, very much regrets that he cannot be with us as he is laid low with influenza. But although he cannot be here in person on this occasion he tells me that he is here with me in the spirit.
§ This Amendment substantially repeats the Amendment which we moved at the Committee stage, with the addition of "driftways" to footpaths and bridleways, in order to make it more comprehensive. Briefly, the case for excluding these rights of ways across fields from the effect of Clause 8(1) is as follows. Subsection (1) of Clause 8 is a very important subsection which changes the law of the land and makes it a statutory duty on all farmers to take reasonable care to see that their livestock do not stray on to the highway where they may cause accident and injury.
§ We accept, and I believe all noble Lords accept, that this is a reasonable change from the existing Common Law position to the statutory law position, in so far as it applies to the public highway, that is to say, the carriageway. I would 694 suggest that bridleways and footpaths fall into a completely different category. They run across the middle of fields and across farms, and therefore they are not normally fenced. If cattle are grazing in a field which is crossed by a public right of way, they will naturally from time to time cross the footpath or bridleway in the course of their grazing. They are unlikely to be dangerous to users of these rights of way—in fact they usually move away when somebody approaches. The dangers to the users are more likely to be under foot when they are going along footpaths or bridleways. I suppose an animal might barge into a cyclist (who is now allowed to ride on the bridleway under the 1968 Countryside Act) and might knock him over, but this would be most unlikely. Certainly the danger is a small one. The point was made by the noble and learned Lord the Lord Chancellor on the Committee stage that the danger was small, so therefore why not let it fall on the farmer? Whatever the danger, my contention is that this is a risk which the user of the right of way takes in crossing the field. Obviously, the farmer cannot be expected to fence both sides of the path in order to keep the cattle off the path, but it seems to me to be wrong, in a Bill which is making a big change in the law, to place a new obligation on the farmer to keep livestock from straying on to the rights of way where they might cause damage to those who use them. In my view, the users of rights of way should continue to take them as they find them.
§ Noble Lords may remember that on Committee stage the Opposition was united on this Amendment, but the noble and learned Lord the Lord Chancellor cunningly sowed a doubt in the mind of the noble Lord, Lord Henley, by suggesting that the leading case of Searle v. Wallbank did not apply to rights of way —or there was some doubt whether it did—thereby implying that as the main effect of subsection (1) of Clause 8 is to wash out the effect of this leading case of Searle v. Wallbank, the farmer would be no worse off if the Clause were left as it is. If I may say so, this was an ingenious argument, but in the interval since the Committee stage the noble Lord, Lord Henley, and I have been able to confer further with our advisers. From the advice that we have been given in 695 regard to the point made by the noble and learned Lord the Lord Chancellor, it seems to us that there was a doubt as to whether Searle v. Wallbank applied to footpaths and bridleways, and that his statement in this particular context was rather straining the nature of the doubt. Surely such doubt as there was as to whether Searle v. Wallbank did apply arose because it was obvious that in the nature of things a farmer could not prevent his cattle straying upon rights of way in the fields and therefore it was doubtful whether there would ever be any need for Searle v. Wallbank to be applied as a defence.
§ In this context, my Lords, I am relying particularly on another leading case with which I am sure the noble and learned Lord the Lord Chancellor will be familiar, the case of Fitzgerald v. Cook Bourne (Farms) Limited, which is quite a recent case, of 1963, and which clearly implies that. Therefore, I hope that the noble and learned Lord will accept that this brings us back to the straight issue that we have to decide, as a House, on the Report stage; that is, whether the farmer should have the duty placed on him by this Bill to take care to see that his cattle do not stray on public rights of way where they may cause injury to those who are using them. This is really the simple, practical point that everybody can understand. I suggest that it is really unreasonable to put such a duty on the farmer, because he cannot possibly prevent his animals walking across the rights of way from time to time. It is in the very nature of things. That being so, it seems to me that although it is a small danger, it is unfair to put such an additional obligation on the farmer which he certainly has not had before. I hope that the noble and learned Lord the Lord Chancellor will accept this Amendment, in whatever form he prefers to have it, as being a real improvement to the Bill. I beg to move.
§ LORD BELSTEAD
My Lords, the noble Lord, Lord Nugent, has reminded us of the Lord Chancellor's opinion on Searle v. Wallbank which led to this Amendment being withdrawn at the Committee stage. In Committee the Lord Chancellor then added:It can hardly be said that an animal grazing in a field which is crossed by a footpath strays 696 on to the footpath; nor does its mere presence there create a danger ".—[OFFICIAL REPORT, 27/11/69, col. 1453.]But, of course, in certain circumstances an animal can cause danger on a bridle-way, footpath or driftway. A cow could presumably crush a watch left beside the path by somebody picking blackberries. Or a pedestrian might be kicked by a horse. It is true that insurance can cover this possibility from the point of view of the farmer. As my noble friend has pointed out, it can also cover it from the point of view of someone who takes a chance in crossing a field by a right of way. I suggest that it would be illogical to hold that the farmer should be responsible for fencing tame animals from public paths. In some cases it might be pertinent to ask: which came first, the field or the path? Moreover, from an amenity point of view, it is very doubtful, as we all know, whether the public would wish such rights of way to be fenced.
There is one other point. If a right of way runs through a field where there are valuable or high-spirited animals, the owner will presumably fence for everybody's good, as so often happens to-day. Indeed, one finds this time and again where horses are kept. But to make fencing a statutory liability seems both harsh and illogical, and it would be appreciated by the rural fraternity if this Amendment could be accepted.
§ 5.13 p.m.
§ THE LORD CHANCELLOR
My Lords, I am sorry if there is still a difference of opinion, as appears to be the case, on this point, particularly as it is such a narrow one. On the one hand, it is said, "We should not be liable for this", and on the other hand, it is said, "All this clause does is to remove a rule which never applied to us at all." While I will certainly look at the cases to which the noble Lord, Lord Nugent, referred, I still do not see how the rule of Searle v. Wallbank could have reasonably applied to footpaths and bridleways.
That case concerned a cyclist on a road who was knocked down by a horse which had strayed from an adjoining field, and the judgments of Lord Maugham and the other Lords refer again and again to animals straying or escaping from land adjoining the highway on to the highway. Clause 8 abolishes an exception from the normal duty of 697 care which any keeper of an animal must exercise to prevent his animals from doing damage. Searle v. Wallbank established that this duty does not cover the taking of any special steps to prevent animals straying on to the highway. There is no authority to found any similar exemption in respect of animals found on footpaths or bridleways, and the reason, no doubt, is that there can be no straying or escaping on to a footpath or bridleway which forms an integral part of the field. An animal grazing in a field which is crossed by a footpath or bridleway is perfectly entitled to graze on the land which is used as a footpath or bridleway, just as it may graze anywhere else. It is a normal use of the land and there could be no duty on the keeper to keep the animal from doing so. In Searle v. Wallbank Lord Maugham said:The above considerations seem to me to be conclusive to show that no such duty to road users as the appellant relies on could possibly have existed before the advent of fast traffic on made-up roadsMy Lords, if there can be no such duty, equally there can be no exception from the duty which the clause would remove.
However, even if there were doubt about the scope of the rule, there can be no doubt about the scope of the clause. It abolishes the rule excluding or restricting the duty to see that damage is not caused by animals straying on to the highway. Since animals cannot stray on to a footpath or bridleway crossing the land on which they are kept, the clause does not affect them; and if there were a rule excluding the duty of care in the case of animals which are on a footpath or bridleway crossing the land (but not straying there), such a rule would be unaffected by the clause; nor would the Amendment, which relates to animals "straying" on to public footpaths or bridleways, make any difference.
While I will certainly consider the matters to which the noble Lord, Lord Nugent, has referred, I cannot, I am afraid, advise the House to accept the Amendment.
§ LORD NUGENT OF GUILDFORD
My Lords, I have listened closely to the answer given by the noble and learned Lord, the Lord Chancellor, for which I thank him. As I understand it, he is saying that in fact it is impossible for 698 cattle to stray, within the meaning of Clause 8(1), on a footpath or bridleway, and therefore the implication is that the duty which is set out in Clause 8(1) does not fall on the farmer in this respect. It is a great comfort to me to hear this. But if that is so, would not the Bill be improved if we say so? This matter is certainly construed with great authority by the noble and learned Lord, the Lord Chancellor, but the Bill has to be read by everybody, and clearly everybody is supposed to know the law. Would this clause really be weakened by putting in such words as I have moved in this Amendment, which would then make it quite plain that no such duty as is set out in Clause 8(1) fell on the farmer and that in fact those who use footpaths and bridleways have to take them as they find them. We are now on a very fine point. The noble and learned Lord, the Lord Chancellor, has conceded the point of our Amendment in substance and says it is implied in the Bill, but all I am asking is that it should say so.
§ LORD CONESFORD
My Lords, may I put one point to my noble friend? I do not think it is really quite as simple as he has said. I can see the force of what he has said if the footpath were going through a field. But public footpaths do not always go through a field; they sometimes go between two private properties, both fenced. I have such a public footpath through my own property.
§ LORD NUGENT OF GUILDFORD
My Lords, I am obliged to my noble friend Lord Conesford. I do not think that alters the substance of the point I am making. The greater number of footpaths are not fenced and there is no duty on the farmer to fence them, and it would in fact be impossible to do so. Of course there are some footpaths that are fenced, and my noble friend Lord Belstead referred to instances where landowners fence them for a specific reason. But I am thinking about the generality with which we are all familiar. The point has been conceded by the noble and learned Lord, the Lord Chancellor, that it is not intended that the liability of subsection (1) should fall on the farmer in such circumstances, and I just want to make it clear in the clause that it does not. 699 We have one further stage of the Bill; we have the Third Reading to come, I believe rather quickly, on Monday. I can put down this Amendment or a similar Amendment for that occasion, or an Amendment in any other form in which the noble and learned Lord, the Lord Chancellor, would wish to see it. I do not want to upset the balance of the clause or the drafting, but I feel that it is desirable for clarity that a clause, which matters greatly to the whole farming and land-owning world, should be clear on this particular point. In the light of what the noble and learned Lord has said, the few slightly encouraging words he has given me—I am most anxious to get agreement rather than disagreement—I beg leave to withdraw my Amendment now and put it down again, in some form acceptable, if possible, to the noble and learned Lord, on Third Reading.
§ Amendment, by leave, withdrawn.
§ 5.20 p.m.
§ LORD NUGENT OF GUILDFORDmoved Amendment No. 7:
Page 5, line 18, at end insert—
Provided that this section shall not apply to straying from adjoining land on to any special road being a motorway for which the Minister of Transport is the Highway Authority.
§ The noble Lord said: My Lords, I beg to move Amendment No. 7. This again repeats an Amendment which we moved on the Committee stage. It deals with a very simple point, and there are no legal complications. The effect of this Amendment would be to exclude from the effect of Clause 8(1) the duty to take care to keep cattle off the motorways.
§ Briefly, the argument is that a motorway is a special road for high speed long-distance traffic. Its use is confined to certain classes of traffic only, for safety reasons; it is built by the Minister of Transport under special powers, and it is driven straight through the countryside, bisecting farms and fields. In order to maintain safety, the Minister of Transport povides high-class stock-proof fences on both sides, with bridges and under-passes in order to connect the severed parts of farms and fields, so that the farmer can move his cattle and his farm machinery across the motorway without 700 running the very great danger which would obviously be involved if they crossed on the surface. The major implication here is that the Minister of Transport has clearly accepted a special responsibility for keeping the cattle off these roads, and it is in these special circumstances that we think the farmers should be relieved of the duty laid upon them by subsection (1) of this clause of keeping their cattle off the highway, and that this duty should be placed on the Minister of Transport for this purpose.
§ The noble and learned Lord the Lord Chancellor kindly undertook to consider this point with his right honourable friend the Minister of Transport in the interval between the Committee and Report stage, and in the interval we have slightly improved the Amendment to take care of the point which was made by the noble Lord, Lord Airedale. I hope that the consultation has been productive and that the Amendment, in its new form, is acceptable. I beg to move.
§ LORD SORENSEN
My Lords, may I ask the noble Lord why his Amendment discriminates between what is technically a motorway and an ordinary highway? I have in mind the district near where I live, Epping Forest, where there is a very busy roadway running right through the forest on to which cattle are constantly straying, to the danger of themselves and indeed of pedestrians and motorists. I cannot see for the life of me why there should be this discrimination between motorways, which evidently the noble Lord wishes to protect, and highways which, technically speaking, are almost as busy as motorways. I should be grateful to the noble Lord if he would explain to me why he wishes this discrimination.
§ LORD AIREDALE
My Lords, perhaps I could attempt to answer that question. In the case of motorways, the Minister of Transport assumes the responsibility of putting up high-class fencing to fence animals off his motorway, but in the case of ordinary highways there is no such duty laid upon the Minister of Transport. It is thought that where the Minister of Transport has this duty, then it is up to him to carry it out, and if the animals nevertheless stray beyond and over the Minister's high-class 701 fence on to his motorway, then it is the Minister who also takes the responsibility.
§ THE LORD CHANCELLOR
My Lords, as I said, I have had full consultation with my right honourable friend the Minister of Transport, and while I am not in a position to advise the House to accept the Amendment I am in a position to deal with a number of points which, I am not unhopeful, may satisfy the noble Lord, Lord Nugent of Guildford.
It is true that motorways are new roads which are imposed on the countryside through which they pass. Although care is taken to minimise the damage caused to agriculture, it is inevitable that farms are severed and farmers with land fronting a motorway may well find themselves facing certain risks or liabilities which did not exist before. As a result of the Bill, there may be some extra liability if their animals should escape on to the motorway. Where new roads are built this is looked after by the compensation code. When land is acquired for a motorway, full compensation at market value is paid not only in respect of the land which is actually acquired but also in respect of the damage caused by severance and injurious affecttion to the remainder of the land which was held with the land taken. In so far as this Bill imposes an extra liability upon farmers with land fronting a new road, this liability is insurable, and if the extra cost is significant in financial terms it will in future feature in the amount of compensation paid. This is the proper way to deal with the matter, rather than to exempt one kind of highway from the provisions of this clause, and to allow the loss to fall on the injured motorist.
In practice, as I explained in Committee, the Minister of Transport always erects stock-proof fences along motorways for which he is the highway authority, and where he acquires land from adjoining land-owners he covenants to erect and maintain such fences. Highway authorities have rights under Section 85 of the Highways Act 1959 to erect fences along certain major roads, and this is done extensively where the circumstances require it. The Minister of Transport accepts that where he is the highway authority and has provided a fence under 702 Section 85 (whether on a motorway or on another special road) he also has a moral obligation to maintain it.
The Minister of Transport's practice in regard to the fencing of motorways is different from that in regard to other roads for which he is responsible. On trunk motorways the Minister provides the fence, under highway powers and on highway land, as an official barrier marking the boundary, and he maintains it thereafter. On other roads the fence is normally provided on the frontager's behalf as an accommodation work, on the frontager's land, and it is up to the frontager to maintain it thereafter. This difference in practice is due to the different legal implications of a motorway, and the compensation paid to the frontager reflects this difference in practice. But the question which noble Lords will ask is: since the Minister is responsible for the maintenance of the motorway fence should not the liability for an accident caused by a straying animal fall on him rather than on the owner of the animal? In practice it often will; if it is clear that the accident was due to the Minister's failure to maintain the fence, then he would accept liability.
But other cases can be envisaged. Leaving aside the possibility of malicious damage, the farmer may be keeping a different kind of stock from that which was on the land or readily foreseeable at the time that the fence was put up; the fence may be proof against cattle, but not against piglets or poultry. The Minister's liability should not be extended on account of any future change in farming practice on the frontage land, because he has no control over it. But the idea seems to be current in some quarters that in putting up fencing along a motorway the Ministry takes account only of the practice which is prevailing at the precise time that the land is acquired. This is not correct. In general, he tries to pursue a reasonable and flexible policy. But what he cannot undertake to do is to keep changing the fences in the years after the motorway is built as the farm changes hands and stock-breeding practices on the frontage land change. Nor can he undertake to provide at the outset against purely longterm or speculative changes in practice, if only because to do so would be a waste of national resources.
703 My Lords, I apologise for having taken up a little of the time of the House, but I thought the noble Lord, Lord Nugent of Guildford, might be interested in that position as the Minister sees it. I hope that in view of that very full statement he might think it right not to press this Amendment to a Division.
§ LORD NUGENT OF GUILDFORD
My Lords, may I thank the noble and learned Lord for his very full statement, which I should certainly like to study. I think in one way or another it meets every point. I feel quite happy about the position where new motorways are built; clearly when compensation is being settled for severance this will be an additional liability which will be taken care of. I was a little anxious about the position of existing motorways where, as I think the noble and learned Lord acknowledged, a new liability is being created by this Bill. There is no question about that. It seemed to me that the noble and learned Lord's statement, about the obligations the Minister will accept in such circumstances, went a long way in the direction that I wanted. I certainly was not considering a situation in which a farmer kept tigers or elephants and still expected the Minister to confine them within his fence. This, of course, would be completely unreasonable. But perhaps your Lordships will allow me the opportunity to study this to-morrow, and if I feel that there is any aspect which is not satisfactorily covered I still have my opportunity on Third Reading. But in the light of what the noble and learned Lord has said, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.31 p.m.
LORD NUGENT OF GUILDFORDmoved Amendment No. 8:
Page 5, line 39, after ("green") insert ("or on land which was proved by him not to have been fenced during the previous twenty years as between the land and the highway and to have been available for the keeping or grazing of livestock thereon throughout that period")
The noble Lord said: My Lords, I beg to move the next Amendment, which stands on the Marshalled List in the name of the noble Lord, Lord Henley, and myself. Once again, Amendment No. 8 substantially repeats the Amend-
ment which we put down on this point at the Committee stage, but again I think we have achieved some slight improvement in the drafting. We have given closer definition to what this land—that is, unfenced land which is not common land—should be. We have given it further definition, first, by reference to the period for which it should have been unfenced—that is, twenty years—and, secondly, by reference to the use to which it has been put; that is to say,
the keeping or grazing of livestock thereon throughout that period".
§ If, very briefly, I may recapitulate the purpose of the Amendment, it is to relieve farmers from the duty laid down in Clause 8(1) with regard to their cattle straying on the highway in those areas of the country where the land is traditionally unfenced. These arc the upland areas, in private ownership, of course, which are used for cattle and sheep rearing, which never have been fenced and which it would be completely uneconomic to fence now. Clause 8 as drafted, by its last paragraph, excludes common land from the effect of subsection (1) of that clause, and our Amendments seek to put these upland areas of unfenced, livestock-rearing land on the same basis as common land. I think it would be true to say that, in practice, this land looks exactly the same to the motorist as common land. When any of us motor through it we probably think we are motoring through common land. It is all open and we can picnic on the side of the road; and very nice it is to see it open!
§ The noble and learned Lord the Lord Chancellor undertook to consult with his right honourable friend the Minister of Agriculture during the interval between the Committee stage and Report stage to-day, and I hope that he may have been as successful with his right honourable friend the Minister of Agriculture as he was with the Minister of Transport. I beg to move.
§ LORD SORENSEN
My Lords, I hesitate somewhat to intervene again, but I want to revert to my previous illustration of real local difficulties. Does not the Amendment which the noble Lord has now moved strengthen the end of Clause 8, in so far as, in the case of Epping Forest and somewhat similar areas in other parts of the country, the 705 land has not been fenced for, indeed, many centuries? To use Epping Forest merely as an illustration, may I say; that there have been commoner rights there going back for many centuries, and at no time in the history of Epping Forest—saved for us by the wisdom and foresight of the City of London—has there ever been a fence. In these days, when the conurbation of London presses heavily upon Epping Forest, circumstances are quite different from what they were even fifty years ago, let alone a hundred years ago.
I had hoped that the Bill as it stood, including this particular clause, might come to the aid of literally thousands of people who live adjacent to Epping Forest. Apart from the possibility that the last paragraph in the existing clause might itself exempt such owners of cattle, it seems to me that the Amendment moved by the noble Lord will cause that exemption to operate still further. In other words, does it not mean, for instance, that if this particular Amendment is carried all those owners of cattle in Epping Forest or a similar area in any other part of the country will be entirely exempt from the operation of the Act, and that therefore their cattle may constantly wander to and fro across the highway—in the case of Epping Forest, an extremely busy highway nowadays—causing danger to themselves and sometimes injury, and occasionally death, to pedestrians and motorists? If that be so, surely it would be unwise for this Amendment to be carried, in so far as it would then cease to bring relief to a very large number of residents in the district in which I live.
§ LORD BELSTEAD
My Lords, of course, what the noble Lord, Lord Sorensen, has said is absolutely right. because so far as I can see it is covered in lines 37 to 40 on page 5 of the Bill. The noble Lord, Lord Nugent, has described how he has tried to improve the Amendment, and it appears in a revised form. At the last stage of the Bill, in Committee, the noble and learned Lord the Lord Chancellor queried the twenty-year proposal which remains in this Amendment because of the difficulty of proving the facts about whether fencing had or had not existed. But do not rights of way rely on proof of remaining unenclosed for a period of years? I should 706 have thought that the problem here, the twenty-year problem, which the noble and learned Lord the Lord Chancellor brought up, was a minimal one, and certainly it would not occur as a point of argument in the large, unfenced tracts of land which are really affected by this Amendment.
The point was well made in Committee by the noble Earl, Lord Swinton, that such areas usually receive a Government subsidy. How illogical now to threaten those who are subsidised for their activities with the possible consequences of their activities! In Committee, the noble and learned Lord the Lord Chancellor argued that that is precisely what is not going to occur, and that the farmers ought to trust the judges to act reasonably. In column 1466 the noble and learned Lord said:What they"—the judges—have to do is to take into account all the circumstances—the kind of road it is, whether farmers in the locality fence or not, the amount of traffic there is about, what it would cost to take whatever precautions it may be said should have been taken …"—[OFFICIAL REPORT, 27/11/69; col. 1466.]and so forth. Of course, the noble and learned Lord was basing that passage on Clause 8(2), which he has been at such pains to put into the Bill. But there are so many provisos there that it is easy to see why fears continue to exist.
Those who support this Amendment would certainly concede that insurance must play its part in farming, as in other activities. But if Clause 8 means anything, insurance premiums for this particular risk are going to rise. On the other hand, if Clause 8(2) is really supposed to protect the keepers of animals on these wide, open lands, then this Amendment would, I submit, certainly codify the law here—fair, practical and understandable to all.
§ 5.39 p.m.
§ THE LORD CHANCELLOR
My Lords, I have considered this matter again with my right honourable friend the Minister of Agriculture. The reversion to a twenty-year period immediately preceding the accident once more lays the Amendment open to the objection that it will discourage fencing in areas where it would be desirable to encourage it. If the land has been unenclosed for some time, it will normally not be in 707 the farmer's interest to enclose it, lest he should terminate the twenty-year period or stop an inchoate period running. The fundamental objections to the exemption of particular land by a reference, not to any criterion determined by the extent of the risk but solely by the arbitrary criterion of the existence of a fence, remain. The Bill, in requiring the courts to have regard to the fencing practice in the neighbourhood, goes as far as one can reasonably go in ensuring that, in areas where the risk is not particularly great, the person who places an animal on unenclosed land is not likely to incur liability.
The Law Commission examined the possibility of categorising highways according to those carrying special risks and others, but found it impossible to do so by a reference to any existing statutory classification. Since the Report was received, a number of other methods of classification have been examined, but none of them was practicable or provides a satisfactory line of demarcation. As I intimated on the Committee stage I would have preferred the opening words of Clause 8, abolishing the ruling in the Searle v. Wallbank case and saying:So much of the rules of the Common Law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by animals straying on to the highway is hereby abolished.So there would be a duty to take such care as is reasonable. That must mean "as is reasonable in all circumstances". The circumstances vary indefinitely.
I should have preferred to leave it to the court, with no more ado, but it was said in some quarters that the Act ought to mention the sort of things which a judge will take into account; so included in the Bill now are the things which the judge is to take into account, namely:
That was as it eventually left the Law Commission.
- "(a) the nature of the land and its situation in relation to the highway;
- (b) the use likely to be made of the highway at the time the damage was caused;
- (c) the obstacles, if any, to be overcome by animals in straying from the land on to the highway;
- (d) the extent to which users of the highway might be expected to be aware of and guard against the risks involved in the presence of animals on the highway;
- (e) the seriousness of any such risk and the steps that would have been necessary to avoid or reduce it."
Then the National Farmers' Union still said that it does not say anything about fencing. They were told that probably one of the things that a judge will take into account is the question of fencing, how far it is usual, what it would cost and all that. They said that they wanted to see it expressly mentioned in the Bill. Then I agreed to add this: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;No judge in a place like, for example, Cumberland, where highways run over unfenced moorland is going to say that land ought to be fenced. He is going to apply common sense to the circumstances of the case.
But there is this wholly artificial provision about twenty years. Why twenty years? This is a risk that can easily be insured against. No noble Lord has suggested that there will necessarily be any increase in the standard farmers' insurance policy. What it comes to in practice is this. A family goes off in a coach along a motorway to the seaside for their annual holidays. Because of the negligence of a farmer—he will be under no liability unless it is his fault—an animal comes on to the road, perhaps the coach overturns and the man and his wife and children are all gravely injured. Under the present law they have no claim against anybody at all. They may be unable to work for the rest of their lives. There is nobody against whom they can recover. The person to insure is the farmer. After all, he is only insuring in respect of his own negligence. If this Amendment is accepted this family have to find out—how can they find out?—and to prove that for twenty years these particular fields had not been fenced (and your Lordships will remember that "fencing" in the definitions includes ditching). They have to prove the practice about this particular field for the last twenty years. How can they do it? This Amendment would largely defeat the object of the Bill. I hope that the noble Lord, Lord Nugent, will accordingly not press it to a Division.
THE EARL OF SELKIRK
My Lords, I wonder whether I could ask the noble and learned Lord to let the hill farmers know what they are supposed to do. He says the Amendment is not sufficiently precise, that it leaves a certain vagueness; but, frankly, the clause as drafted leaves a great deal of vagueness, too. He said that a farmer who uses the highway might be expected to be aware of and to guard against the risk. Does that mean that he puts up a notice, "You are coming to an unfenced highway"? Is that a total and adequate protection for the farmer? Secondly, the noble and learned Lord says that fencing is the normal practice. If my neighbour puts up a fence, am I under an obligation to put up a fence?
This is a real problem for hill farmers. It leaves them no precise picture of their duties. They are now having an added duty placed on them by this Bill and their obligations are made greater by this Bill; there is no doubt about that. The noble and learned Lord said that he does not want this Amendment because it might restrain farmers from putting up fences. Are we trying to compel farmers in vast hill areas to put up fences? Is that not the deduction to be drawn from this Bill? I would only ask that the hill farmers should be given a fair picture of in what way their obligations are increased and how they might meet these obligations. I do not think that to say, "Insure!" is the whole answer. I do not know whether they can insure. This practice has been going on for some time.
§ LORD NUGENT OF GUILDFORD
My Lords, I must thank the noble and learned Lord for his answer, which I am bound to say was not as good as the last one. On the other hand, I must thank my noble friend, Lord Selkirk, for his support. This is a major problem for the farmers in the upland areas where tens of thousands of acres of land are unfenced and always will be unfenced. The example given by the noble and learned Lord—the coach full of people going for their holidays which hits an animal crossing the road, the coach turns over, the people suffer damage and ought to have a right to proceed against somebody; and therefore farmers ought to be insured —breaks down on this point. The noble and learned Lord said that all that the farmer is being asked to do is to insure 710 in respect of his own negligence. But it is not negligence on the part of a farmer in an upland area where he has livestock grazing on the land if his animals stray on to the road. The land has never been fenced and it never will be fenced. It would be quite uneconomic to fence it. That is the difficulty.
I simply cannot accept that view. I agree with my noble friend, Lord Selkirk, that it is not enough to say to the farmer: "You must take out an insurance policy to cover this risk." We are making a very big change in the law in Clause 8, and when we place a new burden, as we are now doing, on the farming community, we should see that the burden is fairly placed. It is perfectly fair to place on farmers in the lowland areas this burden to keep their cattle fenced. If unfortunately they break out, then the farmer can plead the various defences available here. But it is a totally different matter in the upland areas. They are absolutely comparable with common lands, like Epping Forest, to which Lord Sorensen referred, where the cattle have always strayed across the roads. It is a nuisance, and the noble Lord has my sympathy; but that is what has always been done. Because you want that land to be an open space in which the public can walk and have picnics, it is likely to continue to be so. Even though this Amendment may not be perfect, I feel that it at least expresses the sense that those of us familiar with the problem feel is right. Therefore, if the noble and learned Lord feels unable to accept it in some sense, I shall ask your Lordships to join with me in pressing it to a Division.
§ THE LORD CHANCELLOR
My Lords, if I may have leave to speak again, dealing first with what was said by the noble Earl, Lord Selkirk, this is the trouble when you start writing things down. In every walk of life the duty to take reasonable care must depend on all the circumstances of the case. If you go to the dentist, he is under a duty to take reasonable care; to act as a reasonably competent dentist would do. One cannot write down a long screed of exactly how it is going to work out in practice. These cases will be tried by judges, many of whom are farmers, and it may be that we should receive the benefit of the advice on this point of the 711 noble and learned Lords whom I see present in the Chamber.
Judges are used to deciding cases according to the circumstances before them. The idea that any judge, when referring to an area where highways go over moors which are completely unfenced, would say that the farmer was liable because he ought to have fenced, is, with the greatest respect, absurd. The judge has to take all the circumstances into account and a farmer will not be liable unless the judge finds that he has done something which no reasonable farmer would have done, having regard to his circumstances, or has omitted to do that which any reasonable farmer would have done.
In the courts people are always judged according to their own standards, whether the person be a solicitor, or whoever he may be. A garage proprietor would be in trouble if a repair was not carried out with the use of reasonable care and skill. Nobody is ever expected to do the impossible or to be any better than the next man. People are judged by their own standards. It is common ground that you cannot possibly win an action on medical negligence unless you are supported by medical evidence. The question always is, "Did this doctor do something which no reasonably careful doctor would have done, or did he omit to do something which any reasonably careful doctor would have done?" I am afraid, therefore, that I must respectfully maintain my opposition.
This reference to twenty years is an absolutely artificial conception. None of the farmers will be affected so far as fencing is concerned when they are in areas where there is no fencing. It was entirely to please the National Farmers' Union that any specific reference to fencing were added, and the words:
… 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 …
do not sound like a reference to any land to which the noble Earl, Lord Selkirk, was referring. It is, I would submit, a quite unreasonable burden to put on the injured family that they should have to prove, as they would have to do, if this Amendment were accepted, that all the area of the field in question had been without a fence or without a ditch for the last twenty years.
VISCOUNT COLVILLE OF CULROSS
My Lords, with great respect, the noble and learned Lord is wrong. Under this Amendment the burden of proof is placed upon the person who says that the land has not been fenced. It is not for the person claiming damages to satisfy that burden; it is for the person who is the defendant in the action.
§ 5.54 p.m.
§ On Question, Whether the said Amendment (No. 8) shall be agreed to?
§ Their Lordships divided: Contents, 44; Not-Contents, 46.713
|Aberdare, L.||Emmet of Amberley, Bs.||Mowbray and Stourton, L.|
|Ailwyn, L.||Falkland, V.||Moyne, L.|
|Auckland, L.||Ferrier, L.||Nugent of Guildford, L.|
|Belhaven and Stenton, L.||Goschen, V. [Teller.]||Nunburnholme, L.|
|Belstead, L.||Gray, L.||Rathcavan, L.|
|Berkeley, Bs.||Greenway, L.||Rockley, L.|
|Brooke of Ystradfellte, Bs.||Grenfell, L.||St. Oswald, L.|
|Brougham and Vaux, L.||Hawke, L.||Sandford, L.|
|Carnock, L.||Headfort, M.||Selkirk, E.|
|Congleton, L.||Howard of Glossop, L.||Sempill, Ly.|
|Crathorne, L.||Ilford, L.||Strange of Knokin, Bs.|
|Denham, L. [Teller.]||Kinnoull, E.||Strathclyde, L.|
|Derwent, L.||Lansdowne, M.||Vivian, L.|
|Ebbisham, L.||Lauderdale, E.||Wise, L.|
|Elliot of Harwood, Bs.||Monk Bretton, L.|
|Beswick, L.||Bowles, L.||Collison, L.|
|Birdwood, L.||Brockway, L.||Delacourt-Smith, L.|
|Blyton, L.||Burden, L.||Donaldson of Kingsbridge, L.|
|Boothby, L.||Chorley, L.||Douglas of Barloch, L.|
|Gaitskell, Bs.||Mitchison, L.||Snow, L.|
|Gardiner, L. (L. Chancellor.)||Morris of Borth-y-Gest, L.||Sorensen, L.|
|Garnsworthy, L.||Moyle, L.||Stow Hill, L.|
|Gifford, L.||Phillips, Bs. [Teller.]||Strange, L.|
|Hilton of Upton, L. [Teller.]||Raglan, L.||Walston, L.|
|Hughes, L.||Ritchie-Calder, L.||Wells-Pestell, L.|
|Kennet, L.||Sainsbury, L.||Wigg, L.|
|Kilbracken, L.||St. Davids, V.||Wilberforce, L.|
|Lindgren, L.||Segal, L.||Willis, L.|
|Llewelyn-Davies of Hastoe, Bs||Serota, Bs.||Winterbottom, L.|
|McLeavy, L.||Shackleton, L. (L. Privy Seal.)|
|Milner of Leeds, L.||Shepherd, L.|
On Question, Amendments agreed to.
§ Clause 9 [Killing of or injury to dogs worrying livestock]:
§ 6.3 p.m.
§ THE LORD CHANCELLORmoved Amendments Nos. 9 and 10:
§ Page 6, line 26, after ("livestock") insert ("has not left the vicinity")
§ Page 6, leave out lines 29 to 31.
§ The noble and learned Lord said: My Lords, if no noble Lord objects, may I take Amendments Nos. 9 and 10 together, since they deal with the same point? This is a change in emphasis and degree, made in response to arguments advanced by the noble Earl, Lord Selkirk, and the noble Lord, Lord Nugent of Guildford, at the Committee stage of the Bill. I hope that the Amendments meet with their approval. I venture to think that I need not take up the time of the House further, if I may reserve my position in reply in case of further points arising. I beg to move.
THE EARL OF SELKIRK
My Lords, may I thank the noble and learned Lord for these Amendments, which seem to me a great improvement in definition, in regard to both time and location.
§ LORD NUGENT OF GUILDFORD
My Lords, may I also thank the noble and learned Lord. I think that the Amendments meet the point very effectively.
§ Clause 11 [General interpretation]:
§ 6.5 p.m.
LORD AIREDALEmoved Amendment No. 11:
Page 7, line 17, leave out ("animal") and insert ("animals")
§ THE LORD CHANCELLOR
My Lords, Amendment No. 11 makes a grammatical change in the definition of 714 livestock. The noble Lord, Lord Airedale, moved an Amendment to this definition in Committee stage, when he sought to change the list of animals from the plural to the singular. I suggested that there might he a better way and the noble Lord was good enough to accept that. I beg the noble Lord's pardon: it is his Amendment. But I was accepting it.
§ LORD AIREDALE
My Lords, I kept quiet because I knew that the Amendment would be explained so much better by the noble and learned Lord. All I need add is that the noble Lord, Lord Conesford, said in Committee that he would prefer the singular to the plural. Normally I bow to the noble Lord in these matters, but it is more important still to bow to the noble and learned Lord the Lord Chancellor, if you want your Amendment to be accepted. I beg to move.
§ THE LORD CHANCELLOR
My Lords, Lord Airedale and I so far agree that I never can remember whether I am supporting his Amendment or he is supporting mine.
§ THE LORD CHANCELLORmoved Amendments Nos. 12, 13 and 14:
§ Page 7, line 18, leave out ("and poultry")
§ Page 7, line 19, at end insert ("and, in sections 3 and 9, includes poultry")
§ Page 7, leave out lines 20 and 21 and insert ("'poultry' means the domestic varities of any of the following, that is to say, fowls, turkeys, geese, ducks, guinea-fowls, pigeons, peacocks and quails and also, while in captivity, pheasants, partridges and grouse; and")
§ The noble and learned Lord said: My Lords, if no noble Lord objects, may I take Amendments Nos. 12, 13 and 14 together, since they relate to the same matters? These Amendments widen the definition of poultry, which forms part of the "livestock" for the purposes of the Bill, by including peacocks and 715 quails and, while they are in captivity, pheasants, partridges and grouse. They also exempt poultry from the definition of livestock for the purposes of those clauses of the Bill to which poultry are irrelevant. There were exciting proposals about this matter in Committee and I said that I would discuss them with my right honourable friend the Minister of Agriculture. Peacocks and quails are always domesticated in this country. Quails might escape from a farm but, we understand, would not be able to survive out-side it. Pheasants and partridges are basically wild birds and could be a subject of ownership only while in captivity. For the purposes of breeding, female birds and their young are frequently kept in pens or enclosures. We have little evidence that the same practice is followed regarding grouse, at any rate in England, but it could be, and there is no reason why, if they are kept for breeding purposes, they should not enjoy the same protection.
§ As a result of the Amendments, pheasants, partridges and grouse will enjoy protection while they are in pens, so that the owner of a dog which attacks them will incur strict liability and the owner of the birds will have a good defence if he shoots a dog which worries or attacks them. The addition of these birds accentuates the absurdity of including various classes of poultry in the definition of livestock for the purposes of Clauses 4 and 7. They had previously been included because, although it made little sense, it was thought to be convenient and would do no practical harm to have one definition for the entire Bill. However, the existing law regarding cattle trespass and distress damage feasant, which is replaced by these clauses, did not apply to poultry and there is no real case for extending it. In relation to pheasants, partridges and grouse, it would be absurd to do so since they could only trespass on another person's land when no longer in captivity and, correspondingly, no longer belonging to the owner of the land from which they had come. The Amendments therefore take the opportunity to rationalise the Bill in this respect. I beg to move.
§ LORD NUGENT OF GUILDFORD
My Lords, may I thank the noble and learned Lord for moving these three Amendments and for meeting the points 716 which we raised in Committee stage. His Amendments have done so fully—indeed, even more fully than we suggested, and I am very happy to accept them.
My Lords, may I ask one small question? I, too, welcome this Amendment. I am glad that it would appear to embrace my pheasants. I am not talking about the common or garden pheasant, which some of my more bloodthirsty friends massacre at the weekends: I am talking about the distinguished and beautiful pheasant, the Reeves Pheasant. Am I right in assuming that this special variety would be included under the genetic title of pheasant?
§ THE LORD CHANCELLOR
My Lords, the answer to that is that a definition of species includes sub-species, and if the pheasant to which the noble Earl refers is a species of pheasant it is included.
THE EARL OF SELKIRK
My Lords, I do not want to be difficult, but there are other birds. I have never heard of capercailzies being kept in captivity, but there are doves, and many other types of birds, which may be kept. Do they fall into this definition or are they deliberately excluded?
§ THE LORD CHANCELLOR
A dove is an ordinary domesticated bird. A pheasant is ordinarily not in captivity at all. I must confess that I did not know that dogs attack peacocks. If they do, it is right that peacocks should be protected. I should have thought that a dog would not stand very much chance with a dove and that a dove was capable of looking after itself.
§ LORD VIVIAN
My Lords, I should like to thank the noble and learned Lord the Lord Chancellor for including quail in Amendment No. 14. May I point out to him that the Amendment refers to "quails" whereas when talking of the plural of the bird one refers to a bevy of quail. It is an unimportant point, I know, and I will leave it to the noble and learned Lord the Lord Chancellor to decide.
§ THE LORD CHANCELLOR
My Lords, if I may have leave to speak again, I will certainly consider this important point before the next stage of the Bill. Curiously enough, in connection with the Consolidation Bill, the 717 Second Reading of which I moved to-day, I was being equally concerned (and if I had known that the noble Lord, Lord Boothby, was about I could have asked him) as to whether the plural of herring was "herring" or "herrings".
§ SEVERAL NOBLE LORDS: No.
§ SEVERAL NOBLE LORDS: No.
§ 6.13 p.m.
§ LORD WILBERFORCEmoved Amendment No. 15:
Page 7, line 22 at end insert—
("( ) In ascertaining the meaning of any provisions of this Act, regard may be had to the Report of the Law Commission on Civil Liability for Animals (Law Commission No. 13).")
§ The noble and learned Lord said: My Lords, I put this Amendment down as an Amendment to Clause 13, but it has been represented to me that it would more appropriately come into Clause 11, the interpretation clause; and if that is so I am quite willing to fall in with that suggestion. Wherever it is, I will explain it quite shortly in this way. I must refer to two dates. The Bill now before the House is based on the Report of the Law Commission, No. 13, which appeared in 1967. Subsequent to that, in 1969, the Law Commission produced a Report on the interpretation of Statutes in which they considered, in response to a request from the noble and learned Lord on the Woolsack, the general question whether the courts should be entitled, in interpreting Statutes, to take into account outside matters, such as Reports of Committees, Hansard, and so forth.
§ A very interesting and constructive Report was produced by the Law Commission in which they made various suggestions, which included the suggestion that the courts might, in interpreting a Statute, take into account the provisions of any Report of a Committee, including a Report of the Law Commission itself on which the Statute was based.718
§ That was only one of many suggestions which was made. It was taken up by the Government in a Bill recently before the House, the Matrimonial Proceedings and Property Bill, which contained a clause—Clause 35(2)—identical, except for reference, to the clause which I am now proposing. It was accepted by the Government and by this House when the Bill came before it.
§ It seemed to me, therefore, that it might be not inappropriate for the House to consider the inclusion of a similar clause in this Bill. I simply place it before the House for its consideration. If there is any controversy about it, I certainly shall not press it. It seemed to me that as we had before us what is really a liberal and progressive proposal from the Law Commission, we ought to give it a chance to see whether the Government are willing to incorporate the principle of it in this Bill. I do not propose the Amendment simply for consistency or logic; I propose it also because I think it would be helpful in the construction of this particular Bill.
§ The Law Commission's Report No. 13 on the subject of Civil Liability for Animals is a very carefully worked out document, which reviews in a scientific way the pre-existing law and states in detail the reasons for each of the Commission's proposals. I suggest that it would be helpful to the courts if they were able to look at this Report. They would not be obliged to do so, but it would be helpful if they could have the right to look at this Report in certain cases where they are called on to interpret it.
I will give two simple examples of where it would, or might, be useful for the courts to have a look at the Law Commission's Report. In Clause 1 of this Bill, your Lordships will see that there is a reference, in subsection 1(a), to the fact that the provisions replace
the rules of the common law imposing a strict liability in tort for damage …
In order to know what are the rules of the common law that are replaced it is very convenient to be able to look at this Report. The rules of the common law are obscure, difficult to find out and sometimes difficult to understand; and they are very lucidly explained in the Report in an accessible way.
§ Another point raised by the noble Lord, Lord Foot, at an earlier stage in this debate today, related to the reference in Clause 2(2) to "damage of any kind". If one simply looks at the Bill, as the noble Lord pointed out, it is somewhat obscure. If you turn to the Report, you find that in paragraph 18 it is explained what is meant by "damage of any kind", and the reader is told how cases of infection may in some cases be covered. Cases where a bitch with a litter has a characteristic to bite people at a particular time would come within this expression, which is one that did not exist previously in the law. There are many other examples, many in relation to this rule of Searle v. Wallbank that we have just been discussing.
§ I venture to think that most judges would find it helpful to be able to have access to this Report. I should like to move the acceptance of this Amendment, though if the noble and learned Lord finds that there are objections to it, I will not press it. One final point: it would be an objection. I think, to a clause of this kind if the Bill had been extensively amended as compared with the proposals of the Law Commission, and it is for that reason, among others, that I am moving the Amendment at this stage rather than at the previous stage. We are now able to see that the Bill as it leaves this House has been only very slightly changed from the draft Bill put forward by the Law Commission. So I think it is true to say that the Law Commission's Report is still extremely relevant to the interpretation of the Bill, and the Amendments which this House has so far made do not make it less so. I hope that I have adequately explained the purpose of what is, I think, an innocuous Amendment. I beg to move.
§ THE LORD CHANCELLOR
Before I put the Amendment proposed, or call for the next Amendment, which is an Amendment to this Amendment, may I remind your Lordships that the Marshalled List has been corrected? The Amendment that has been introduced by the noble and learned Lord, Lord Wilberforce, instead of applying to Clause 13, should apply to Clause 11; and the reference should be to page 7, line 22, instead of page 7, line 29. Then 720 the Amendment to the Amendment (No. 16) which is described as "an Amendment to Amendment No. 14", should be shown as an Amendment to No. 15.
§ 6.20 p.m.
LORD DOUGLAS OF BARLOCHmoved Amendment No. 16, as an Amendment to Amendment No. 15:
At end insert ("and a copy of that Report shall be bound up and supplied with every official copy of this Act".)
§ The noble Lord said: I beg to move Amendment No. 16 standing in my name on the Marshalled List. In the beginning, let me make it quite clear that I am opposed to the Amendment which has been moved by the noble and learned Lord, Lord Wilberforce, for reasons which I will explain in a moment. My Amendment is only in case your Lordships should decide to accept that Amendment.
What of the consequences of the Amendment which has been moved by the noble and learned Lord? It is not only the case that if it is carried judges will refer to the Report of the Law Commission when they are considering any case which this Bill bears upon; it is inevitable that everybody who has to deal with this legislation will be compelled to refer to the Report of the Law Commission, because the Amendment says:
In ascertaining the meaning of any provisions of this Act, regard may be had to the Report of the Law Commission …".
When it says, "regard may be had to the Report of the Law Commission", it means that regard will be had to it and regard must be had to it. Therefore, not only the judges will have to be provided with copies of the Report of the Law Commission, but other people also.
§ Suppose one morning a lawyer is sitting in his office in Holborn and one of his clients comes to him, not on the business he usually deals with relating to contracts or some such matter. The client happens to commute from some still rural district and comes to London and has a problem about straying animals, or perhaps about a dog biting his child. The solicitor whom he consults then gets a copy of this Bill and reads through it and says to himself, "Yes I think I understand what this is all about," and then when he gets almost to the 721 end of it he finds this provision that reference may be made to the Report of the Law Commission. So he has to send for a copy of the Report of the Law Commission; and presently his messenger comes back and says, "I am sorry to tell you that I can't get one from the Stationery Office; it is out of print". Being careful and resourceful, the solicitor then has to go down to the Law Society, which in its excellent library no doubt has a copy of the Report of the Law Commission. So he is able to consult this and to form a judgment as to whether or not his original impression of what this Statute means was correct.
§ Well, so far, so good. But suppose the solicitor is in some country town in Northumberland. He instructs his agent in London to obtain a Report of the Law Commission, and then discovers that it is out of print. He then has to get his agent to go to the Law Society and order a photostat copy of it. So your Lordships will see that if this Amendment is carried it is absolutely essential that my Amendment to it shall be carried also.
§ It may be said that this is not quite what usually happens; that lawyers depend upon annotated copies of the Statutes, which are unofficial and which are produced by well-known firms of publishers on subscription. That is perfectly true. It is conceivable, I suppose, that an annotator producing one of these editions of this Statute would say, when he came to this particular provision, "I don't think it makes the slightest difference to the interpretation of this Statute." But, on the other hand, he might have formed a different opinion and he might produce some annotations saying that the meaning of such-and-such a clause seems to vary from what the Law Commission have been saying in their Report; and, in any event, whatever is the case about that, the publishers of this unofficial edition upon which most lawyers will rely will have to print in it a copy of the Report of the Law Commission, because a body may refer to it and at any moment it may be raised in correspondence, in pleading or in the court itself if a case comes up for trial.
§ I submit, with all respect, that this is going to make the law still more expen- 722 sive, still more complicated, and instead of producing greater certainty, is going to produce uncertainty. A Statute ought to be straightforward and easily intelligible in itself, and it ought not to require any extraneous aids in order to interpret it. But the noble and learned Lord's Amendment is inviting exactly that process of looking at a body of material which in many cases will be longer and more extensive than the Statute itself. This is bound to produce an area of uncertainty which probably would never have existed before, and it is certainly going to add to the cost of litigation because all the overheads of this process must be covered somehow or other. It is, with all respect, a retrograde step, but if it is taken then I insist that every Queen's Printer's copy of the Statute ought to have a copy of the Report of the Law Commission annexed to it.
Now let me point out a further consequence of this. I do not know whether this particular piece of legislation when it becomes law will be consolidated or not, but a few days ago this House inserted into the Matrimonial Proceedings and Property Bill a reference, not to one but to two Reports of the Law Commission. That is a piece of legislation which doubtless is going to be consolidated in the not very distant future. because it is very desirable that the law relating to matrimonial causes should be consolidated. When that happens, what will the Statute look like? In Consolidation Bills clauses which appear in one solid mass in one of the Acts consolidated will be distributed all over the Bill into various classifications. When one comes to the reference clause at the end of it, one will find that it reads something like this:
In ascertaining the meaning of the provisions of sections 13 to 17, 23, 25(2)"—
and so on—
reference may be made to the Report of the Law Commission No. so-and-so and in ascertaining the provisions of sections 7 and 8, 19 to 20 and 31(3) reference may be made to another Report of the Law Commission.
Both of those Reports ought to be annexed to the consolidating Statute. Where are we going to get to if this process is going to be part of our Statute law? My Lords, I beg to move.
§ 6.29 p.m.
§ LORD NUGENT OF GUILDFORD
My Lords, may I add a very brief word of support to the tremendous broadside that Lord Douglas of Barloch has just let loose on the Amendment of the noble and learned Lord, Lord Wilberforce. I must say that I found Lord Wilberforce's speech in moving his Amendment very persuasive and I thoroughly understand its intention. But, apart from the objections which Lord Douglas put before us so cogently, there is of course this additonal one. It is that if we were intending to bind all future courts in ascertaining the meaning of this Bill, it would be necessary for both Houses of Parliament to study in detail all the material in this Report. This really would be quite impossible. I see the noble Lord, Lord Wigg, nodding his head. I can imagine the sort of hey-day he would have had in another place if this had gone there in this form. Clearly it is not possible, and however helpful this document is—it is a quite excellent Report and indeed the Bill is founded on it—I am sure that it would not be right to legislate in this way. At the end of the day the Bill is the best we can make of it. It is what we want it to say—or at least it is what some of us want it to say—and if we are in a minority we must put up with those parts we do not want. I am sure that the Report should have no official status in connection with this Bill, and therefore I hope the noble and learned Lord, Lord Wilberforce, will not wish to press his Amendment.
§ LORD AIREDALE
My Lords, I agree with what has been said. I think we ought to hold back from the top of what looks to be a very slippery slope. I feel that the Statutes ought to stand on their own feet and not seem to be holstered up by something else.
§ THE LORD CHANCELLOR
My Lords, we have first to consider and determine the Amendment to the Amendment, which has to be put first. This would require a copy of the Law Commission's Report to be published in the same document with copies of the Bill after enactment. I respectfully suggest that this is wrong, and I appreciate that in a sense the noble Lord, Lord Douglas of Barloch, has moved his Amendment not to improve Amendment No. 15 but because he does not like Amendment No. 15.
724 To bind both the Report and the Statute together in the first place would be starting something which has never happened before; and, secondly, I am told that it would quadruple the cost of the Act and would have a most serious effect on the Statute Book. If the same practice were adopted as regards any Bill recommended by the Law Commission or other bodies, the annual volume of Statutes, already over 2,500 pages, would be very much bigger still. In my submission, it would be quite wrong to require anyone who only wants one document, the Bill, to buy both. If anybody wants both he can buy both. Therefore, I would urge the Committee to reject the Amendment to the Amendment. When that has been decided upon, I imagine that would be the right moment to address the House on the Amendment moved by the noble and learned Lord, Lord Wilberforce.
§ On Question, Amendment to the Amendment negatived.
§ THE LORD CHANCELLOR
My Lords, on Amendment No. 15, I would only say that it has the support of the Law Commission and I should have thought that it was right. There is a much more extensive Report of both Law Commissions together, which is unanimous in that it is signed by all the members of both Law Commissions, recommending that it should be provided by Statute that the court should be entitled to look at quite a wide range of documents—not only Reports of Committees, but White Papers, and so forth. This full Report has not yet been considered by the Government and I should not like it to be thought that any decision made on this Amendment to-day in any way prejudged what that decision might be. But this Amendment is in a very small compass. It is not making the judges look at anything that they do not think it would be helpful for them to look at.
The judges tend sometimes to be criticised for construing Statutes in a way different from that which Parliament intended, while at the same time they are not supposed to look at documents which any sensible person construing an Act would look at, and which in fact they do of course look at. It is not infrequently that one has to refer to a Statute, although many judges and 725 lawyers are familiar with the Statutes with which they are used to dealing; but however you look at Statutes it is a rare event to have a question of construction, and the idea that if we pass an Act allowing a judge to look at this Report, every lawyer will have to spend his time studying it, is quite unreal. All it will do is to regularise what the noble and learned Lord, Lord Denning, told us judges do; namely, to look at a Report of this kind.
It would be ludicrous to have a Committee carefully considering some amendment to the law, as with the Theft Act, carefully explaining why they had chosen these three words to express something in the Act and not those two words, and if a question of doubt arises as to how the Act ought to be construed, for the judge (who is a grown-up person) not to be allowed to look at their Report. There is not a word in this Amendment which would compel a judge to do anything at all. For those reasons, so long as it is understood that this Amendment is not intended in any way to prejudice the consideration which will have to be given the Special Report of the Law Commission on Interpretation of Statutes, I would advise the House to accept the Amendment.
§ LORD RAGLAN
My Lords, may I ask my noble and learned friend what he thinks of the point raised by the noble Lord, Lord Douglas of Barloch, that "may" will become "must" in people's minds?
§ THE LORD CHANCELLOR
My Lords, all I can say is that a barrister who is trying to get a judge to look at something that the judge does not want to look at, and cannot be made to look at, is in a very weak position
§ of what the noble and learned Lord on the Woolsack has said. This is not a matter of wide import because, as noble Lords will appreciate, this Bill is dealing with a simple subject matter and most of it is put in plain language in relation to plain facts of everyday life. I entirely agree with what the noble and learned Lord on the Woolsack has said, that in most cases where some question of damage by a dog or trespassing cattle arises the position is perfectly clear to an ordinary layman, and still more to a lawyer, and nothing will then cause him to feel that he has to look at the Law Commission's Report.
§ The value, if any—and I think it has some value—of the subsection which is suggested lies here. There are in the Bill necessarily certain technical expressions, certain legal expressions—how often they will come before the court is anyone's guess—and it is only in relation to those, when they arise, that it seems to me it would be useful, instead of a judge having to plough through a lot of reported cases, for him to be able to look at it all set out in this document, which costs 5s. 6d., in order to see either what the pre-existing law was or what the Law Commission had in mind. I do not feel that this will put lawyers, and still less laymen, in the position of having to search through the Report every time. I feel it gives them minor but useful assistance in some of the difficult questions which may arise. So, having regard to the support which the noble and learned Lord has been willing to give to this as an isolated case in this Bill. I feel justified in maintaining the Amendment before the House.
§ 6.40 p.m.
§ On Question, Whether the said Amendment (No. 15) shall be agreed to?
§ Their Lordships divided: Contents 44; Not-Contents, 26.727
|Beswick, L.||Dilhorne, V.||Lindgren, L.|
|Blyton, L.||Donaldson of Kingsbridge, L.||Llewelyn-Davies of Hastoe, Bs.|
|Boothby, L.||Gaitskell, Bs.||Longford, E.|
|Bowles, L.||Gardiner, L. (L. Chancellor.)||McLeavy, L.|
|Brockway, L.||Garnsworthy, L.||Merthyr, L.|
|Burden, L.||Headfort, M.||Milner of Leeds, L.|
|Chalfont, L.||Hilton of Upton, L.||Mitchison, L.|
|Collison, L.||Hughes, L.||Morris of Borth-y-Gest, L.[Teller.]|
|Colville of Culross, V.||Kennet, L.|
|Conesford, L.||Kilbracken, L.||Moyne, L.|
|Delacourt-Smith, L.||Killearn, L.||Phillips. Bs.|
|Raglan, L.||Serota, Bs.||Stocks, Bs.|
|Ritchie-Calder, L.||Shackleton, L. (L. Privy Seal)||Wells-Pestell, L.|
|Sainsbury, L.||Shepherd, L.||Wilberforce, L. [Teller.]|
|St. Davids, V.||Sorensen, L.||Winterbottom, L.|
|Airedale, L.||Douglas of Barloch, L.||Negent of Guildford, L.|
|Beaumont of Whitley, L.||Falkland, V.||Nunburnholme, L.|
|Belhaven and Stenton, L.||Ferrier, L.||St. Aldwyn, E.|
|Belstead, L. [Teller.]||Goschen, V. [Teller.]||Strang, L.|
|Brooke of Cumnor, L.||Greenway, L.||Strange of Knokin, Bs.|
|Brooke of Ystradfellte, Bs.||Howard of Glossop, L.||Teviot, L.|
|Carnock, L.||Kinnoull, E.||Vivian, L.|
|Clwyd, L.||Massereene and Ferrard, V.||Wigg, L.|
|Denham, L.||Mountevans, L.|
On Question, Motion agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.