HL Deb 29 October 1970 vol 312 cc195-213

3.28 p.m.

THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)

My L1ords, in the debate on the gracious Speech the noble and learned Lord, Lord Gardiner, gave me various pieces of advice which in my then wholly untutored state I was only too glad to clutch. One of these pieces of advice related to the Animals Bill, which the noble and learned Lord suggested that I should reintroduce. He followed up this advice with a question, and before the end of July I was able to tell him that, pursuant to his advice, I was introducing the Bill, and it was read a first time. Seldom in the history of the Woolsack can one Lord Chancellor have been more compliant with the wishes of his immediate predecessor.

I now rise with great pleasure to move the Second Reading of this Bill. Apart from one or two changes, which I will mention at the appropriate point, it is in essence the Bill of 1969 as amended and as refined by your Lordships' House in the previous Parliament. Having passed your Lordships' House, with Amendments, this Bill in its present form was well received by both sides in another place. It was then given an unopposed Second Reading. It had not, however, proceeded further by the time Parliament was dissolved.

When he introduced the earlier version of this Bill into the House in 1969, the noble and learned Lord, Lord Gardiner, gave an exposition of the law both as it was (and still is), and as it was proposed to amend it. That exposition was widely acclaimed as masterly, both in this House and when the Bill was debated elsewhere. It would therefore be foolish of me to seek in any way to compete with the noble and learned Lord, and imprudent to repeat what is still so fresh in your Lordships' minds, and what can so easily be referred to in the pages of Hansard.

Suffice it to remind your Lordships that it is widely, and I would say almost universally, accepted that the law relating to liability for damage done by animals is a fit and urgent subject for legislation. This was acknowledged at least as long ago as 1953, when the Goddard Committee reported, if not earlier, and the same theme was repeated by the Law Commission in their Report of 1967, which forms the foundation of the present Bill. I think it follows that if we are to be treated as serious in the zeal that all of us, on all sides of both Houses, profess for law reform it is incumbent upon us to pass a measure this Session embodying the best of the collective wisdom that we are able to bestow upon the subject. I hope that this may be done with the minimum of delay.

The first seven clauses of the Bill before the House are, I hope, relatively uncontroversial. They are an attempt to reduce to something like a code (though I am told that I must not call it a code) the existing common law on the subject of strict liability for the damage and injury caused by animals. Obviously the common law cannot be consolidated like a series of Statutes. If it were capable of such consolidation so clear that it did not require clarification, and so perfect that it did not need any alteration at all, presumably there would be little virtue in legislation. Nevertheless, the law as it is stated in Clauses 1 to 7 is, broadly speaking, a plainer statement than has hitherto been available of the law as I have understood it to be at the present time, with such additions as Parliament has seen fit to suggest up to the moment.

Clause 1 and the repeals provision substitute the new code which is contained in Clauses 2 to 5 inclusive for the corresponding provisions of the existing law. Under the new code, as under the existing law, there will be four cases of strict liability for damage done by animals. And here I should explain, what is doubtless well known to your Lordships, that when I use the phrase "strict liability" I mean liability independent of negligence. First of all, there is a liability for damage done by "a dangerous species" of animals; and this phrase is defined in Clause 6. Secondly, there is a similar strict liability in respect of animals which, although not belonging to a dangerous species in the sense defined, are known to have particularly dangerous characteristics at particular times or to have individually dangerous propensities known to the person held liable.

Your Lordships will notice that the criteria which determine liability for the acts of a normally harmless species of animal have been reformulated since the Bill last left your Lordships' House. The earlier formula was that: … the animal has such characteristics that it is likely, unless restrained, to cause damage …". This was objected to on the ground that it was arguable that even quite normal acts on the part of such an animal, which in certain circumstances could cause danger, might render the owner liable to damages. For example, it was argued that on the existing formula a large dog knocking over small children, or a stray cat causing a car to swerve into a collision, might render the owner liable. Under the revised clause (the refined clause in the present Bill) this is no longer so, and in the case of an animal not belonging to an inherently dangerous species only that animal's abnormal characteristics can give rise to liability.

The liability under these first two heads—that is, in respect of dangerous species and of animals with especially dangerous characteristics though belonging to a species not held to be dangerous—attaches to the keeper of the animal (and the term "keeper" your Lordships will find defined in Clause 6 of the Bill) and also to the head of the household if the keeper himself is under 16 years of age. In addition to these two heads of strict liability the Bill imposes a strict liability for dogs killing or damaging livestock: this liability also attaches to the "keepers" of dogs as defined in the Bill. This third head of strict liability reproduces the effects of some of the provisions of the existing Dogs Acts, now to be repealed by the Bill.

Clause 4 reproduces and extends the existing law relating to damage for cattle trespass; that is, damage to land or pro- perty caused by straying beasts, other than those straying from the highway. Here again, under this head, the fourth head, the liability is a strict liability independent of negligence.

Special defences to the strict liability clauses are set out in Clause 5 of the Bill, and one of these special defences has been refined in comparison with the text of the 1969 Bill. Under the new provision, as now in the Bill, the owner of an animal which has caused damage by trespassing on neighbouring land will not be able to resist the neighbour's claim for injury done to his land simply by asserting that that neighbour was under a duty, owed no matter to whom, to fence the animals out. He will have to show that that duty to fence was owed to someone having an interest in the land from which the beasts have strayed.

In passing, I should point out that Clause 10 of the Bill applies the law of contributory negligence as partial defence to the types of strict liability that I have been describing. Clause 7 deals with' a slightly different subject; it re-enacts with improvements and clarifications the old and archaic law relating to the right of distress damage feasant, as it was called, to which, it will be remembered, Mr. Pickwick was rendered subject when he was put in the pound.

All this, I should have thought, was relatively uncontroversial, although in studying the reports of the debates on the 1969 Bill I noted that there was a certain amount of controversy on Clause 4 because certain noble Lords desired to add to liability for direct damage liability for indirect damage from cattle trespass due to the loss of a certification by owners of brucellosis-free herds. All this was fully discussed on Committee in the earlier passage of the Bill, and if need be we can discuss it on Committee again, though Her Majesty's present Government have come to exactly the same conclusion on this point as did their predecessors.

The main controversy on the Bill has always centred on the provisions of what is now Clause 8. This is the only clause which makes an alteration in the common law which I should have described as radical, and, because both the law as it is and the law as it will be when this Clause 8 is passed involves a compromise between two perfectly legitimate sets of interest, it naturally gives rise to argument and sometimes even to strong feeling.

Our law as it is grew up at a time when highways passed for the most part of their length through land almost entirely unenclosed and when depasturing of cattle on manorial wastes or on uncultivated land outside the common fields was a common law or customary right. I am sure it will be remembered in this connecton that before the beginning or perhaps the middle of the 18th century many of our highways were virtually impassable in winter, and in summer a very great part of the traffic was foot, pack, or bridle, and long-distance transport consisted of rumbling carts or coaches pulled at a walking pace by teams of horses. Obviously at that time and in those ages such conditions lent themselves to the growth of the proposition that no farmer had any obligation at all to fence his animals in from the road. They were left to stray about the highway—and even in my own lifetime I can remember a prosperous farmer who had the reputation of having begun as a landless man who made his living by depasturing two or three milking cows on the palatable grass and herbage by the side of country lanes.

In such circumstances the rule caveat viator was obviously a sensible rule of thumb. But I think it would now be generally recognised that this idyllic picture no longer corresponds with reality in an age of fast moving mechanical transport, and the rules of law founded in such times do not succeed now in achieving justice between man and man. If it were simply a question of damage to property there might be more to be said than there is for leaving matters alone. But collisions between fast moving traffic and straying animals leave a horrid train of injury to life and limb behind them, and in these circumstances we feel that it is no longer justifiable to exempt the owners of straying animals on the highway from the normal law of negligence—there is, of course, no question here of imposing a strict liability.

The difficulty is that conditions differ almost indefinitely. In some parts it would be almost criminal to allow animals to stray at all. In others, roads pass through long vistas of mountain country where important rights of pasturage exist and where hedging or fencing would be wholly uneconomic. On motorways the Government provide the fencing, although the farmer ought to warn the highway authority if he notices that parts of the fence have been broken down. There are of course other special areas where individual rights of depasturing exist which are in the nature of property rights which could be bought out only by means of a hybrid or local Bill, and this Bill would not be the appropriate instrument for invoking for this purpose.

Clause 8 is therefore to some extent a judgment of Solomon. I have no doubt at all that it is an improvement on the existing law. I should, personally, like to improve it still further, but it was very much and fully discussed on Committee when the Bill was before your Lordships previously; and I would not myself like to hold out any particular hope that further discussion or reflection will bring greater illumination. But I should welcome suggestions and promise to turn nothing down which seems genuinely likely to ease matters in a constructive way.

By itself subsection (1) of Clause 8 would perhaps be too uncertain and become an open invitation to litigation, and that is why subsection (2) provides the courts and the legal profession with some guidelines to assist their decisions or advise their clients. We hope that farmers who have anxieties about their position under Clause 8 will be somewhat reassured by the fact that the judge is specifically enjoined to have regard to factors affecting the nature of the land and to farming practices in the neighbourhood. There is a precedent for such guidelines being given in the Occupiers' Liability Act which proved helpful in the context of that Act.

Clause 9 of the Bill both extends in one direction and limits in another the right of an owner to defend his livestock against marauding dogs. These rights have hitherto depended on judge-made law. Clause 9 substantially reproduces that judge-made law, but with two exceptions. In the first place, the owner of the livestock can claim his immunity from liability only if he informs the police, and informs them within 48 hours, of killing or maiming a marauding dog. In the second place, this judge-conferred right is extended in cases of dogs roaming about out of control after an attack, and also to cases where, although the statutory conditions for the exercise of the right are not in fact satisfied, the owner of the livestock had reasonable grounds for believing, and did believe, that they were satisfied. Sheep worrying is a grave menace. It kills or injures about 9,000 sheep a year. It is very important that the farmer's rights to protect his sheep should be strengthened, and Clause 9 is an attempt to achieve this object.

Clause 10 is perhaps a rather inelegant piece of legislation by reference, but in brief it applies the Limitation Acts and the defence of contributory negligence to the cases of statutory liability established by Clauses 2 to 4. Clause 11 is the definition section, and here I need only draw your Lordships' attention to some further rationalisation of the definitions of "livestock" and "poultry". These had already been improved as the result of discussion at the Committee stage of the previous Bill. But your Lordships will probably also notice that a subsection which this House had added to the clause on a Division in the Report stage of the earlier Bill has again been omitted. That subsection, which would have permitted regard to be had to the Law Commission's Report in interpreting the provisions of the Bill, provoked a great deal of criticism, not only in another place but also from the legal profession and from the Judiciary. It has therefore been again omitted.

Clause 12 defines the position of the Crown, and Clause 13 is purely formal. It therefore, my Lords, only remains for me to commend the Bill to the House. It is not, of course, for me to limit in any way—nor would I desire to do so—the course of discussion in your Lordships' House, but I should respectfully think, for the convenience of the House and having regard to the previous passage of the Bill, that the Second Reading might be taken reasonably quickly and that any outstanding points of difference might he threshed out more thoroughly in Committee. I have much pleasure in moving that this Bill be read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

3.50 p.m.

LORD GARDINER

My Lords, it is always a pleasure to meet an old friend, and this Bill is an old friend. It is none the worse for having nothing whatever to do with Party politics and therefore I must respectfully congratulate the noble and learned Lord the Lord Chancellor on reintroducing the Bill. To the extent that it is the same Bill as the one that left this House and went to another place I naturally strongly support it, and in any case of course I support the Second Reading of the Bill. The few observations that I have to make therefore relate to the changes in the Bill since we saw it last. These are not changes made by the other place but presumably they have been made by the Government.

The first change is a redraft of Clause 2(2). There were criticisms in Committee of the wording of this clause, and on the Report stage of the Bill on December 11 of last year (OFFICIAL REPORT, col. 657) on an Amendment moved by the noble Lord, Lord Foot, I said: I am not certain that the noble Lord has not got a point. I have, therefore, been reexamining the clause, in consultation with the experts in the Law Commission and others, to try to ascertain whether the noble Lord's concern is justified. It has not been possible so far to conclude these consultations in the time available. I then stated what the intention of the Government was in regard to the clause, and I concluded by saying: As I have said, these consultations are still going on; and if the noble Lord would be good enough to withdraw his Amendment, if it is found that Clause 2(2) goes wider and imposes liability in circumstances not contemplated in the recommendation, I would undertake, in consultation with the Law Officers, to ensure that the necessary Amendments to narrow the scope will be introduced in another place. My Lords, those consultations were not complete when I left office. They have evidently continued and resulted in the redrafting which has taken place. I would respectfully say that in my opinion the re-draft is an improvement and I hope that the House will accept it. There has also been a re-wording to some extent of the definition of "livestock" in Clause 11(1), and there again I think the change made is an improvement.

The noble and learned Lord the Lord Chancellor has also pointed out that one subsection, subsection (2) of Clause 11, which was in the Bill as it left this House has now been omitted. That is the sub-section which would have enabled judges, in interpreting the Act, to look at the report of the Law Commission on which the Act was based. That was not inserted in the Bill originally. It was an Amendment moved by the noble and learned Lord, Lord Wilberforce, and accepted by the House. I could never see any objection to that. It seemed to me to be good sense, particularly because most of our existing law in this field is case law. To state what is the existing law one would have, strictly speaking, to look at about 260 reported cases going back over years, whereas the report of the Law Commission contains an accurate and authoritative statement of what the existing law is. However, as the noble and learned Lord has said, there were various criticisms of this subsection in the other place, and I should be inclined to think that no useful purpose would be served by trying to move it back into the Bill, because it raises a general question as to what documents, what reports, or, in the case of the implementation of a treaty, what documents, can be had regard to by those whose duty it is to construe the Act.

The whole question was the subject of a Report of the Law Commission which I think is about the only Report of the Law Commission made during the lifetime of the last Government which has never been considered by Parliament. I do not propose to put down an Amendment on this point, but I would ask the noble and learned Lord on the Woolsack whether he proposes to afford the House at some stage—possibly both Houses—an opportunity to consider the Report of the Law Commission on the interpretation of Statutes.

My Lords, Clause 13(3) naturally alters the date for the coming into force of the Act, which is now to be October 1, 1971. That may seem rather a long time ahead, but the lawyers must have time to assimilate new law and their clients must have time to consider, like the advice they get, whether the passing of an Act makes it desirable for them to take certain steps or not.

That leaves only Clause 5, subsections (6) and (7). Clause 5(1) of the Bill as it left this House, and as the present Bill reads, says: A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it. That is only sense, is it not? A person should not be able to get damages for something due entirely to his own fault. Clause 5(6) read then, and still begins, in this way: In determining whether any liability for damage under section 4 of this Act is excluded by subsection (1) of this section"— that is the subsection I have just read— the damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing; That is right, is it not? Whether you ought to fence or not, must, as the noble and learned Lord has said, depend entirely on the nature of the country. The subsection goes on: but a person is not liable under that section where it is proved that the straying of the livestock on to the land would not have occurred but for a breach of' a duty to fence … Again that is right, is it not? There the subsection stopped, but we now find added these words: and that the conditions specified in sub-section (7) of this section are satisfied. There is a new subsection (7) which says: The conditions mentioned in subsection (6) of this section are—

  1. (a) that the duty was owed to a person having an interest in the land from which the livestock strayed; and
  2. (b) that the person who suffered the damage was answerable for the breach,
and for the purposes of this subsection a person shall be taken to be answerable for a breach of a duty to fence if, and only if, cither—
  1. (i) the duty was owed by him; or
  2. (ii) he is under an obligation (however arising) to indemnify any other person for sums payable by that other person by way of damages for breach of that duty or by way of indemnity for any such damages or for a like indemnity."
My Lords, I must say that I find this wording very inelegant, and this conception of being answerable for a breach a somewhat difficult one. On this point the Bill as it left this House was based on paragraph 67 of the Law Commission's Report, in the course of which it said: Any new rule must seek to state the defences so as to be limited in nature and clear in effect". I think we can say that in the form in which this clause left your Lordships' House the defences were limited in nature and clear in effect. Later in that paragraph it said: The plaintiff should not be regarded as responsible for or contributing to the damage by reason only of the fact that he could have prevented the straying of the livestock by fencing; but the keeper of the livestock should not be liable if the straying would not have taken place but for a breach by any other person, being a person having an interest in the land strayed upon, of a duty to fence. That was the basis of the clause as it left this House. The addition to subsection (7) seems to me not to be limited in nature and clear in effect. I always thought it was one of the great merits of this Bill that it was in English and in words which any educated man could understand for himself. I gravely doubt whether the educated farmer who reads subsection (7) will really understand what it means, and I respectfully invite the noble and learned Lord the Lord Chancellor to reconsider this subsection before we come to the Committee stage of the Bill. With that exception, I welcome the Bill and I hope in any case that your Lordships will give it a Second Reading.

May I add this footnote? I understand that some amenities pressure group is now opposed to anything in the Bill which might result in any fence going up anywhere, on the ground that fences are unsightly. I shall not have an opportunity of answering anything said under that head, but the noble and learned Lord the Lord Chancellor will, and I would ask him, as his means of information are now greater than mine, whether I should be right if I said this. The whole subject is a serious one. Some of your Lordships may remember that in relation to dogs alone 500 people a year are either killed or seriously injured on the roads; and that is, after all, a large number a week. In view of the number of injuries on the main road running through Epping Forest, I believe it was, caused particularly by straying deer, the authorities responsible have now fenced the road. That has had two consequences: first, it has been found that the fencing is not at all unsightly in fact, and secondly, it has led to a dramatic fall in the number of accidents on that road. With those observations, I warmly commend the Second Reading of the Bill to your Lordships.

4.2 p.m.

LORD HENLEY

My Lords, I came here expecting every concession from the Conservative Government and I find instead a conspiracy of Lord Chancellors, with—what was it the noble Lord said?—advice on the one hand and compliancy on the other. This is the same Bill, in substance, as the previous one and of course I welcome it, except for my misgivings on Clause 8, which, as the noble and learned Lord, the Lord Chancellor, has told us, reverses the common law rule about straying animals and brings many difficulties with it. As the Lord Chancellor said, this is the only radical part of the Bill and it is the one which I think the agricultural interests have most doubts about. We debated the Bill at length last year, and though we passed it we did so without any of those Amendments to Clause 8 which many noble Lords, including some sitting on the Conservative Front Bench, when in Opposition felt ought to have been accepted by the Labour Government. I know that this is not a Party Bill in any sense, but I hope that the Conservative Government, who, as some of their Front Bench members strongly supported some of those Amendments, will look upon them with great favour this time. The Lord Chancellor has promised not to turn everything down. If he did turn everything down, it would be tantamount once again to according to the Liberals their undoubted privilege of being the only Party that is right all the time.

Those of us who wanted to amend Clause 8, notably by putting unfenced land which is not common on the same footing as common land, which is excluded from the Bill, are powerfully reinforced this time by the County Councils Association, the National Trust and the Council for the Preservation of Rural England. I was sorry that the noble and learned Lord, Lord Gardiner, referred rather pejoratively to these as certain amenity pressure groups; I think that is an unsuitable thing to say. Nor do I think that the noble and learned Lord has quite got the point about fencing previously unfenced land. I know that in certain circumstances fences can look extremely attractive. I know that in many other circumstances we are doing our best to prevent fences, where they exist, from being removed. But one does spoil some of this wild open country by putting up fences, however elegant they may be. That is a fact very much in the mind of the County Councils Association, the C.P.R.E. and the National Trust. Again, if it were to become necessary to fence all this land, the expense might mean that it would cease to be agricultural land or pastoral land at all and would have to be turned to commercial forestry; and this, again, is something which probably we should all think a mistake.

I agree with the Lord Chancellor to-day, as indeed I agreed with the noble and learned Lord, Lord Gardiner, when he made the same point a year ago, that it is quite clear that conditions in the modem world have changed and so must the law. I think that the noble Lord then referred to it as simplification and modernisation, and I agree that it is time this was done. But at whose expense? The livestock keeper in the past was always liable for damage to his neighbour's crops, because his neighbour's crops were always there, and so was the risk to those crops of straying animals. But the liability for damage to users of the highway was a risk that could be ignored, because it was virtually non-existent when such traffic as there was went at the pace of the horse, an animal itself. I agree that this no longer complies with reality and that we must make the farmer, in this as in other cases, liable to the ordinary law of negligence. But I think that by reversing the whole of the common law here you are doing more than that. Not merely are you making him liable, as everyone else is, and as he ought to be, for the ordinary rules of negligence; you are putting upon him a burden for something not of his making. It was, after all, the motorist who created the possibility of damage, and it is the motorist who has created this situation and who now asks the keeper of livestock to bear the burden of its attendant risk.

The noble and learned Lord, the Lord Chancellor, refers to this as the judgment of Solomon. I think Solomon's judgment in the famous case we all know was more equitable than the one the noble Lord proposes. It simply is not enough to suggest that this is a burden which it is quite easy for the keeper of livestock to take over, and to say that it is just a matter of insurance. It is extremely difficult to get insurance for a number of things now. The rates of insurance are going up very much. The National Farmers' Union have conducted an initial survey on this matter and they are not at all happy that it is going to be so easy to insure against this risk. But even if it is such a simple burden, why should the keeper of livestock have to accept it and not the motorist who has put the livestock keeper at risk? I made these points at the Second Reading and I do not want to bore your Lordships by saying any more about them now until we come to the Committee stage.

I have, however, one new suggestion which is not immediately part of this Bill but very closely related to it, if a new liability is going to be put on one section of the community by another. It concerns the present obligation with regard to the fencing of roads. In the case of motorways the Ministry of Transport erect and maintain the fence, but there is no statutory duty on them to do so and hence in theory there is no liability on the Ministry of Transport for any accident that might be caused. You may well say that in practice this would not arise, because if cattle escaped on to a motorway, through the fence which had been erected and maintained by the Ministry of Transport breaking down, the Ministry would accept that liability, or if they did not the farmer could sue them. I suppose that may be so, but there is no certainty that the livestock owner would have any success, and in any case he would be put to great expense.

Moreover there are roads which are not motorways but which are being brought up to motorway standard; they were in some cases quite small roads and are now of motorway standard. Thirdly, and probably the most unjust case of all, there are new roads across land where there was no road and where the landowner is compelled to take over a new fence that has been erected by the Ministry of Transport. There is compensation: a capital sum is paid to the landowner in order to commute this annual liability for a fence. But, in effect, the landowner is being asked to take over liability where there was none before. It is a heavy liability and the compensation is proving quite inadequate.

Then there is the question of damage to fences and to roads by passing motorists who do not report the matter. In the case of an extensive sheep farm—or, for that matter, an extensive cattle farm—the farmer may not know for many days that the fence has been broken down, and animals may escape. But he may well be held liable. Quite clearly, under the Bill it can be shown that he has not in fact been negligent, but he may be put to considerable expense in defending himself in the courts against what may well be a frivolous charge. Furthermore, there is at present no liability on a motorist even to report damage done to a wall or a fence. It is interesting that the Ministry of Transport are not willing to accept the proposition that a motorist should report such an accident: they say that it is too difficult to enforce. A motorist is required to report running over a dog and in this context I should think it much more important that he should have to report damaging a fence.

Many of us feel that in all the cases that I have described it should be the statutory duty of the Ministry of Transport to erect and maintain the fencing, with a corresponding liability for accidents that may occur. We have approached the Ministry of Transport a number of times on this issue over many months, but they will have none of it, because they say that the frontager has always been responsible for a fence and always should be. This is all very well, but the noble and learned Lord is here asking for a radical change in the law, and I think that if we are to have a radical change in the law, putting on to a livestock keeper a liability which is not of his making, then correspondingly we must help him by changing the old custom that the frontager should always be responsible for his fences. It may be a reasonable proposition in the case of a new fence on an old road, but it is totally unreasonable where it concerns an altogether new road where there was no fence previously. So much for this new suggestion. As I say it has nothing to do with this Bill as it stands, and it probably could not be the subject of any Amendment; but it is something which I think your Lordships would do well to consider in the context of this Bill.

Lastly, I would say a word with regard to the specific matter in Clause 8 which so many of us felt should be put right, that of unfenced land. If unfenced commons are excluded from the new liabilities imposed by this clause so must unfenced roads which are not common. It is a ridiculous distinction. In defending it for the last Government the noble and learned Lord, Lord Gardiner, seemed to me totally to fail to answer the question as to why there should be this meaningless distinction. I think he failed to answer because it is unanswerable. I shall certainly put down another Amendment along the same lines to try at least to gain this point, and I am quite certain that I shall get a great deal of support from both sides of the House.

As I said last year, most of this Bill is good; and that part of it which is bad is bad not because it is in itself intrinsically wrong—as I say, we all agree here that the law must be changed—but because it is charging the cost of this change to the wrong people.

VISCOUNT TENBY

My Lords, may I ask the noble and learned Lord the Lord Chancellor a question about cats? Normally they are outside the law and their owners have no liability. What is to happen about that matter?

4.15 p.m.

LORD CLIFFORD OF CHUDLEIGH

My Lords, as a farmer and landowner I wish briefly to support what the noble Lord, Lord Henley, has just said, particularly on Clause 8. I feel it is hard on hill farmers, who traditionally have a lot of unfenced land and who traditionally are themselves generally poorer and less able to afford the aforementioned insurance. As I see it, this contentious clause can put the onus on the farmers, whereas it should be on the motorist and the road authority.

I should like briefly to tell your Lord-ships of my own particular circumstances in Devon. I have here three photographs, which I will willingly show to any noble Lord, of a particular stretch of the A.380 between Exeter and Torquay which passes through my land. Several years ago the road authority asked me whether a solid bank and hedge could be bulldozed out, so that better visability would be provided for the motorist. I naturally concurred. The hedge and bank were removed and the road authority erected a fence. Two years later they made another new road which split three of my farms and turned this road, the original dual carriage road, into a single carriage road. The obvious thing happened. Within a period of six months uneducated drivers, not used to our windy Devon lanes, smashed through the fence fourteen times. My arrangement with my tenants is that I provide the material and they provide the labour for renovating fences.

This question of onus is one which I think should be put right. But how does that apply to Clause 8? Sometimes we can catch the motorist, but often he gets pulled out or gets out of the field before his number can be taken, and we have no insurance. These fences are broken sometimes two or three times in a night, especially in the high season, and cattle escape. I ask the noble and learned Lord on the Woolsack whether on the Committee stage it would not be possible so to amend this Bill that the farmer has no legal responsibility for damage done in that way by passing motorists, or in regard to unfenced highland. It is our feeling that the road authorities should be made responsible for this damage. In my case they erected the fence and removed a good, substantial bank. But they have no responsibility for repairing the fence and, as I see it, no responsibility for any damage done by reason of cattle straying.

I should like also to support the plea made by the noble Lord, Lord Henley, that it should be made statutory that motorists going through fences should report the damage to the police, so that even if we can get no other compensation, or if the road authorities will not pay up for what I consider they ought to, then we can at least approach the motorist's insurance company and get some sort of compensation there.

4.20 p.m.

LORD MARGADALE

My Lords, I should first of all disclose my interest, namely, that I am a motorist who does quite a lot of long-distance motoring, and I am also a farmer and landowner. I am not a man of law, and I am diffident about speaking, after hearing the speech made by the noble and learned Lord the Lord Chancellor, whom I heard make his first speech I believe nearly fifty years ago—and a very good one, too—and after hearing his predecessor, who has also spoken on this Bill. Nor did I take part in the discussions in this House on this Bill as it was in the last Parliament.

I do not want to take up more than a minute or so of the House's time, but the noble and learned Lord the Lord Chancellor has said that he would be open to a few suggestions and that Clause 8 is a bit controversial. As I see it, Clause 8 is unfair in some instances to the farmer and the stock-owner, or holder. If an accident occurs through an animal getting on to a main road thanks to a vehicle going through the fence at midnight, the responsibility, so far as I can see, will be the farmer's. I may be told by the legal profession that that is not so, because if somebody has seen the accident, or the number of the vehicle has been taken, the onus can be put on the breaker of the fence. But often enough on main roads—and a main road goes through the farm that I have—vehicles go through at midnight, and by 4 o'clock in the morning some animals can be out on the road. I hope I can be reassured that that will not be held to be the responsibility of the farmer, because it would affect a great many farmers throughout Britain.

To turn to motorways, the noble and learned Lord the Lord Chancellor said that they were covered because a fence was made when the motorway was being constructed. It is a wooden fence, which looks nice and fits in with the excellent landscaping of our motorways, but often enough it is low enough for any form of cattle, or a horse, to jump over, and it is not sufficiently fenced underneath to stop a sheep, pig or a dog from going under. I think that where stock-proof fences have been taken over in the building of a motorway, it is only right that the transport authorities should put back a proper stockproof fence to stop animals from straying.

Lastly, on the question of unfenced land, I may say that there is a great deal of unfenced roadway in Wales, in the North of England and in Scotland; and to the average black-faced sheep there is some fatal attraction in sitting on a warm tarmac road. There is also the case of the New Forest. I think that my noble friend who is sitting in front of me is a verderer. I do not know whether ponies sit on a road, but if they do in the New Forest, and along comes a motor car going too fast and is responsible for a concertina smash, I should think that that is the motorist's liability and not that of the owner of the pony; but I do not know and I should like to be reassured on that point. There are other things in the Bill which I feel sure are excellent, but I hope that before a final decision is taken the Government will not close their mind regarding these important and costly provisions for the farming community in this country.