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Clause 10—(Protection For Transport Authorities (Right To Execute Works And To Be Paid Costs Thereof))

Volume 478: debated on Friday 20 October 1950

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 17, line 7, after "given," to insert:

"the Transport Authority shall and."
When I raised this point, rather perfunctorily, on the Committee stage, the Minister said he did not think it was an Amendment to which he could entirely agree, although he promised to look into the matter. Has he looked at it again, and, if so, is he prepared to accept the Amendment?

I beg to second the Amendment.

I suggest that it might be convenient to discuss at the same time the next Amendment, in line 10, to leave out "them or it," and to insert:
"such works or reinstatement and making good."

I understand that both these Amendments were discussed together on the Committee stage, and it will be in order to do so now.

The second Amendment is a question only of grammar. One construction of the Clause as it stands is that the transport authority shall execute the undertaker. A construction of that kind needs to be eliminated.

I have given further consideration to the first of these Amendments and regret that I must adhere to the decision I made in Committee. I am further supported by the considered opinion of Parliamentary counsel who, after re-examination of the matter, are not only satisfied that the Amendment would not improve the position, but that it would be wrong and affect substantially the transport authorities when they make an election.

The effect of the Amendment would be that while undertakers were excluded from carrying out all the works which the transport authority had elected to execute, under subsection (1) the transport authority would be required only to do "any" of those works and not "all" of them. The Clause must, as at present, make it quite clear that the transport authority are under a duty to do all of the undertaker's works which he has elected to do and not such of them as he chooses. I am able to accept the second Amendment. We have, therefore, reached at least 50 per cent. agreement.

My hon. Friends will be delighted that they have got the right hon. Gentleman now to accept the second Amendment and remove every possibility of an increase of capital sentences by the transport authority upon the undertakers.

11.30 a.m.

I have taken note of what the right hon. Gentleman said although, I admit, I am not entirely convinced, as I felt that the wording as it stood was inadequate to carry out the purposes for which the Clause is designed. However, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Amendment made: Leave out "them or it", and insert:

"such works or reinstatement and making good."—[Mr. Hay.]

I beg to move, in page 17, line 31, after "necessary" to insert:

"either—
(a)."
The hon. Member for Henley (Mr. Hay) did not succeed on the issue that he raised, but he is succeeding very fully on this Amendment. Together with the next Amendment I shall move it is a clarification of the Clause.

I should like to express appreciation to the right hon. Gentleman for meeting so adequately the point that we made in Committee.

Amendment agreed to.

Further Amendment made: After "or", insert "( b)" .—[ Mr. Barnes.]

I was not proposing to call the Amendment next on the paper, in page 19, line 22, at the end to insert a new subsection (6).

On a point of order. The Minister said that he would consider this Amendment before the Report stage.

I understood that the Amendment was withdrawn, after Debate, without any undertaking.

No, Mr. Speaker. I would point out, with respect, that I can give you the reference, which is to column 1941 of HANSARD for 17th October.

I beg to move, in page 19, line 22, at the end, to insert:

(6) Notwithstanding the provisions of the preceding subsection, the transport authority and not the undertakers shall be liable for damages arising from negligence in or nuisance arising from the execution of works or reinstatement and making good by the transport authority and shall be so liable in respect of any failure to reinstate and make good after the election by them so to do has taken place.
There was a rather curious discussion towards the end of the Committee stage when this Amendment was withdrawn on the assurance that the point would be further considered. I am putting it forward now to hear the result of that further consideration. I moved the Amendment in Committee with the view of making it quite clear that whenever a transport authority or a sewer authority had exercised their right of election to reinstate the surface of the road, then the common law liability of the undertaker towards third parties for injuries sustained by falling into the hole, for example, when it was unlit, should be extinguished. The Attorney-General drew my attention to two reported cases which he thought satisfactorily declared the law to be as he suggested it should be. I said I would look at those cases. I have done so and so far as they go they are definitely authorities for the proposition which the right hon. and learned Gentleman advanced.

On the other hand, they are both decisions of the Divisional Court on an appeal from the county court and so not decisions of very great authority. Although I await the statement of the right hon. and learned Gentleman, in view of his further examination, I still incline to the view that it would be desirable to insert a Clause something on the lines of this Amendment so as to put it quite beyond doubt that that would be the position where a right of election was exercised. There can be no higher authority than a Section in an Act of Parliament. A decision of a Divisional Court on other Acts and not on this one might conceivably be upset in the Court of Appeal. I do not think that that would be so very likely, but I would like to eliminate any such possibility. I hope that even now it is not too late to persuade the right hon. Gentleman to put in a Clause of this sort for the avoidance of doubt.

I beg to second the Amendment.

I feel that it is wise for the House when legislating to make it clear wherever it can exactly what the law is. We have had a number of other points arising on the Bill which we considered obscure and we have tried to clear them up. Now we have the Government saying that the point which we have in mind is already covered by the common law as decided by the Divisional Court. We ought to make it clear beyond doubt, for the benefit not only of lawyers but of other people who will have to operate the Bill. I strongly support the plea of my hon. and learned Friend that the Minister should not close his mind entirely to accepting the Amendment.

I am sure that my right hon. and learned Friend the Attorney-General will regret his inability to be present this morning to hear the further considered views of the hon. and learned Member for Northants, South (Mr. Manningham-Buller). I do not confess to be able to enter into the legal problem of whether it is desirable to insert a Clause that might arouse deep legal difference of opinion. It would be difficult to do, even if we had unlimited time. With an eye on another place that is a risk that I cannot take. I sincerely hope that I shall not be pressed to do so.

In view of his probable absence the Attorney-General asked me to state that he has carefully reconsidered this matter—his language is quite definite—and is satisfied that the Amendment is entirely unnecessary. His words are that it is:
"so unnecessary that if the words proposed were inserted in the Bill the court would be driven, in order to assign any meaning to them, to read into Clause 10 some meaning which is not intended, the nature of which it is impossible to foresee."
I am not an authority upon legal interpretation and expression but to me, in my simple way, that seems to be a very definite point of view. In the circumstances, I would ask hon. Gentlemen opposite, whatever their views may be, to waive them on this occasion and to seek a more suitable opportunity to work this problem out. I am, of course, unable to accept the Amendment and I trust that it will not be pressed.

I assure the right hon. Gentleman that on this side of the House we think this is a good Bill and that we shall not do anything at this late stage to impede its prospects of getting to the Statute Book. Therefore, we are not proposing to press the Amendment. I would like to add that the concluding passage on the speech of the right hon. Gentleman, when he read out words which appeared to make it conclusive that the Amendment would not go into the Bill, do not cover the point which I raised both on Committee stage and here, that it would be desirable to have a Clause for the avoidance of doubt.

If it was so expressed as I suggested then there is no doubt at all that the insertion of a Clause on those lines would not give rise to the difficulties which the Parliamentary draftsmen appeared to apprehend from the existence of this Amendment. I can only reiterate that if our fears appear to be well founded I have full confidence that when we have the opportunity, quite soon, we shall rectify this small defect in the Bill.

I hope that the Minister will be under no misapprehension as a result of what the Attorney-General has told him about the rules which the courts use in interpreting Acts of Parliament. I would say, with all humility, because his experience in the profession is so much greater than my own, that I feel some doubt about the categorical way in which the Attorney-General has stated the rules of interpretation in relation to a Clause of this kind; because the first and most fundamental rule that all the courts go upon in interpreting Acts of Parliament is that express provisions of an Act of Parliament are required to over-rule the common law.

I do not agree with the learned Attorney-General that the courts are always looking into Acts of Parliament to see whether Parliament is trying to change the law. If anything, it is the reverse. Moreover, as has been pointed out by my hon. and learned Friend, frequently the courts accept provisions in Acts of Parliament merely for clarification. I think the suggestion made by my hon. and learned Friend would have been a useful clarity provision, and would have precluded the possibility of litigants being tempted to try to get these two cases of the divisional courts overruled by going to the Court of Appeal and then to the House of Lords on some other matter. Things being as they are, as we say, the matter must be left as it is, but candidly, I feel that it is somewhat regrettable.

Amendment negatived.