§ Lords Amendments considered.
§ Clause 5
§ AMENDMENT OF S. 8 OF BUILDING (SCOTLAND) ACT, 1959
§ Lords Amendment No. 1:In page 9, line 30, leave out " 49(1) " and insert " 50(1)".
§ The Minister of State, Scottish Office (Dr. J. Dickson Mabon)
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is a minor drafting Amendment to Clause 5 which is necessary because of the renumbering of the interpretation Section of the Roads (Scotland) Act, 1970, from Section 49 to Section 50.
§ Question put and agreed to.1767
Lords Amendment No. 2:In page 9, leave out lines 32 to 43 and insert:
(4) If at any time any portion of a road is occupied for the purpose of depositing materials or otherwise in connection with operations for the construction, repair, maintenance or demolition of any building without a permission granted under this section or otherwise than in accordance with a permission so granted (including the conditions, if any, to which the permission is subject), or if such occupation is continued beyond the period for which the permission was granted, the person conducting the operations shall be guilty of an offence against this Act.
(5) If at any time any portion of a road is occupied for the purpose of depositing materials in connection with such operations as are mentioned in subsection (4) above without a permission granted as aforesaid, or otherwise than in accordance with a permission so granted (including the conditions. if any, to which the permission is subject), any person, other than the person conducting the operations, who, either by himself or by his servant or agent, deposits materials on that portion of the road in connection with the operations shall be guilty of an offence against this Act.
(6) Where the person conducting the operations is charged with an offence under subsection (4) above it shall be a defence for him to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(7) Where any person is charged with an offence under subsection (5) above, it shall be a defence for him to prove that the offence—
(8) If in any case the defence provided by subsection (7) above involves the allegation that the offence took place on the instructions, or by the authority, of another person, or was due to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.
§ That this House doth agree with the Lords in the said Amendment.
§ I hope that hon. Members will be patient with me if I explain an extremely lengthy Amendment, and a very sub 1768 stantial one, which arrives at this apparently late stage in the proceedings. This Amendment was made in another place primarily to meet the representations made by the National Federation of Builders and Plumbers Merchants. It substitutes five new subsections—(4) to (8)—for the existing subsection (4) of Section 8 of the principal Act as set out in Clause 5.
§ Under the existing subsection (4), any person depositing building materials on a road will be liable for an offence if no permission to occupy the road has been given under Section 8 of the principal Act to the person conducting the building operations in question or if the materials are deposited in contravention of the permission or beyond the period permitted by it. As hon. Members will know from our previous discussions, this already applies in burghs under Section 29 of the Burgh Police (Scotland) Act, 1903. The object of the Clause is to make it apply throughout Scotland, including the counties and the counties of cities.
§ 5.15 p.m.
§ I mentioned on Report that the National Federation of Builders and Plumbers Merchants had made representations about the Clause. They pointed out that the Clause made a builder's merchant liable if he contravened the buildings authority permission through faulty instructions given to him by the builder. We accept that this is a defect, and we have remedied it in the new subsection (7). In fairness, however, to everyone concerned, and certainly to the federation, on re-examining the Clause we have decided that more extensive changes are necessary. They are as follows. I hope that the House will permit me to dwell on them in a little detail.
§ Subsection (4) makes the person conducting the building operations—that is, the person to whom the permission under Section 8 to occupy the road is given—liable for a contravention of the permission. This is quite new. There may be many persons depositing materials at a building site but only one person will be holding the permission; namely, the builder. It seems right that he should have a continuing responsibility to see that the permission is complied with by his sub-contractors, subject to his defences as provided in subsection (6). He alone will be responsible for seeing that the 1769 materials are taken away before the expiry of the period for which the permission is granted.
§ Subsection (5) places a responsibility for an offence on any person other than the builder who, either by himself or by his servant or agent, deposits building materials without Section 8 permission or otherwise than in accordance with such permission. The main change from the existing subsection (4) in Clause 5 is that the responsibility for taking away building materials at the end of the period for which permission was granted will not rest with the person who deposited them —for example, the builder's merchant. It will rest, under subsection (4), with the builder.
§ Subsection (6) provides a defence to the builder if he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. That is only fair.
§ Subsection (7) provides a defence for the person depositing the building materials—normally the builder's merchant—if the offence took place on the instructions of the builder, and also provides a defence to the employee of the builder's merchant if he acted on instructions. The builder's merchant and his employee will also have a defence if the offence was due to a mistake or to reliance on information supplied to them.
§ Subsection (8) is a well-precedented provision under which the person depositing the materials or his employee must give seven days' notice of the special defence to which I have just referred provided by subsection (7), which, in effect, places the blame on a third party. This provision, which has received the agreement of the National Federation, will enable the third party to be identified and questioned by the prosecution before the trial.
§ I am grateful to the House for its patience in listening to this explanation, but I think that the discussions have been fruitful and that the Amendment should be agreed to.
§ Mr. Alick Buchanan-Smith (North Angus and Mearns)
I am grateful to the Minister of State for the trouble he has taken and his explanation of the Amendment. As the hon. Gentleman knows, during the earlier stages of the Bill we 1770 moved Amendments to the Clause to try to clarify responsibility between the public authorities concerned in the deposit of building skips. We understand that this Amendment from another place tries to clarify even further exactly whose responsibility it is for the deposit of skips and of materials of one sort and another.
We appreciate that the Minister of State has had discussions with the builders' merchants. I certainly have no intention of opposing what he has done with the agreement of those who are involved. There is, however, one point which I should like to make. Although the Minister of State has gone to great trouble in explaining the Amendment, it is, as he admitted, a fairly complicated matter to determine exactly who is responsible for what and who has to inform his sub-contractor or the merchant who supplies him about his precise obligation.
When permission is applied for, I hope that some kind of explanatory information will be given to the person applying for permission to deposit the materials stating exactly what the responsibilities are, so that the builder who applies for the permission can make clear to his sub-contractors and others exactly what their duties are. Otherwise, a complicated Clause like this could lead to confusion and a lot of difficulty for the different parties in a matter such as this.
I therefore ask that information will be given so that people know precisely what their responsibilities are and that, equally, in enforcement by the police and others, common sense will be shown in interpreting these somewhat complicated provisions.
§ Dr. Mabon
With permission to speak again, I can give the assurance, particularly since the national federation itself has been so intimately connected with this, and because this has gone on for some time, that there will be plenty of publicity given by the federation to its own members. I take the point that that does not cover everybody. Certainly I would hope that local authorities will, under the new Act, through their masters of works and other officers, and in various other ways, make these things well known. I think the actual phrasing is quite clear, but it is still a complex matter, I quite agree.
§ Question put and agreed to.1771
§ Schedule 1
§ MINOR AND CONSEQUENTIAL AMENDMENTS
§ Lords Amendment No. 3:In page 16, line 11, at end insert:
§ "Roads(Scotland)Act1970 (1970 c.)
§ 7. In section 24 (obstructions and excavations in roads without consent), in subsection (7), in paragraph (a), head (i) shall cease to have effect."
§ Dr. Dickson Mabon
I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps I may be allowed to discuss Lords Amendment No. 4 at the same time, in Schedule 2, in page 16, line 44, at end insert:
These are minor drafting Amendments adding to the repeals of provisions in other enactments.
" 1970 c. Roads (Scotland) Act 1970. In section 24, in subsection (7), paragraph (a) (i)."
§ Lords Amendment agreed to.
§ Remaining Lords Amendment agreed to.