HL Deb 21 March 1911 vol 7 cc544-60

[SECOND READING.]

Order of the Day for the Second Reading read.

LORD EVERSLEY

My Lords, the history of this Bill in the other House is, I think, a conspicuous illustration of the congestion of business there, and of the almost total impossibility for a measure of this kind, a measure of a non-party character, in the hands of a private Member, to pass that House. The Society for the Maintenance of Public Rights over Commons and Footpaths, of which I am Chairman, has for the last seven years endeavoured in vain to pass this measure through the other House. On three occasions it was read a second time, twice without a division, and the third time by a majority of something like twelve to one, only thirteen Members voting against it. Twice it went through Grand Committee with considerable discussion and with sonic very small Amendments, but on each occasion it passed through Committee so late in the session that it was not possible to get it through its further stages. It received the support of lawyers on both sides of the House, and not a single lawyer spoke against it; that, I think, considering how very easy it is for lawyers to pick holes and disagree with one another, is a very remarkable thing. Last year and this year, although fifteen Members joined in the ballot, they failed to get precedence for the Bill in the other House.

In these circumstances I have ventured to introduce the Bill into this House. Some of my friends think that that might be somewhat dangerous, but I have assured them that, in my belief, your Lordships on a Bill of this kind, which is of a non-party character and deals with a matter where public rights to some extent conflict with private interests, will be quite as unbiassed and disinterested as the other House, and I feel certain that you will give the Bill your best attention. Indeed, when I look back upon the many measures which I have proposed and carried in Parliament relating to commons and analogous subjects, I recall with satisfaction that the most radical of them was one which was first introduced in this House at my instance by the late Lord Thring. It was opposed by the then Leader of the Party opposite, who denounced it as a measure of confiscation; but, notwithstanding that, it received the support of the majority of your Lordships' House and was passed into law. Compared with that measure, the one which I am asking your Lordships to read a second time to-day is a mere fleabite, and, therefore, I have very great hopes that your Lordships will be able to agree to it.

The necessity for the Bill arises in this way. The point is not a long or a very technical one, and I shall not have to detain your Lordships at any great length about it. The law of England and of Ireland, differing from the law of Scotland and from the law of most other countries of Europe, rests the right of the public to a way or footpath, not upon user, but upon dedication. The footway must be dedicated, either by actual dedication or by user from which dedication is presumed. It is also the undoubted law that a tenant for life of a property under a family settlement or by entail cannot dedicate a right of way to the public. There are many things he can do. He can lay out roads for building purposes near a town, but he cannot dedicate a right of way in a rural district to the public. I need hardly remind your Lordships that a great part of the land of this country is held under family settlements, successively renewed in such a manner that for many years past nobody has been in a position to dedicate a right of way to the public. It follows from this that many cases have arisen in which evidence of user is produced in support of the rights of way extending over forty or fifty years, as long as the memory of man can go back but where family settlements, or some other disability, have existed for a still longer period, and there is no proof of dedication before the commencement of such family settlement. In cases of this kind I find that Judges disagree. In many cases Judges have laid down that, where evidence of user does not go back further than the family settlement or entail, the right of the public cannot be maintained.

The noble and learned Lord opposite, the Lord Chief Justice, in a case where evidence of user was produced of an undoubted character extending over fifty or sixty years, but where the property was held in family settlement for upwards of 150 years, and, therefore, there was no person during those 1.50 years to dedicate the right to the public, laid down that in that case the public right could not be maintained, and his ruling has been followed in many cases and in an increasing number of cases of late years. On the other hand, there have been not a few cases where Judges have taken a different view. There was a case tried before the late Lord Justice Chitty some fifteen years ago, where evidence of user was produced extending over fifty or sixty years. It was contended, on the part of the landowner, that the land had been entailed by Act of Parliament as far back as the reign of Queen Anne, and that consequently there was nobody since then who could have dedicated the right of way to the public. It was argued, therefore, that according to the Lord Chief Justice's ruling the public right could not be maintained. The Judge, however, in that case brushed aside the objection, and said that where the evidence went back as far as the memory of living man extended he would presume that it went back even further, as far back as William the Conqueror if necessary, in order that the right of the public might be maintained.

The example of Lord. Justice Chitty has been followed by other Judges. It may be said, therefore, that at the present time there is a great variety of action on the part of Judges. Nobody exactly knows what will happen at the trial of such cases. One bad effect is that local authorities, who are charged with the duty of maintaining rights of way under sections of the Local Government Act of 1894 for which I myself was personally responsible, are unwilling to maintain those public rights lest family settlements should be sprung upon them and the verdict should go against them and they should be mulcted in costs, which would fall on the shoulders of the ratepayers. The result is that many footpaths of great value to the public have been lost in this way, and also many footpaths which ought to have been enforced by the local authorities have been practically abandoned.

I should like to give your Lordships an illustration of what happens in the present uncertainty of the law. There was a case in one of the southern counties of England of a bridle-path which was very much appreciated by the whole neighbourhood as it was the only bridle-path which gave access to very fine open down country to which riders were fond of going. A gentleman bought a small property which was crossed by the way, and finding that the bridle-way cut his property into two he was anxious to put an end to it. He could not do so, however, in respect of his own property because it had been held in absolute ownership for a great many years, and there was no doubt whatever that user by the public in that case would have held good. He therefore bought from the incumbent of the parish, through the Ecclesiastical Commissioners, a few acres of the glebe through which the bridle-way also ran, and he then maintained that, inasmuch as the incumbent of a parish is only tenant for life and in the same position as a tenant for life under an entailed property, he could not dedicate the property and that therefore there was no possibility of this bridle-path ever having been dedicated to the public by the successive incumbents who were owners of the glebe. Having bought the glebe he closed the bridle-way and caused very great indignation throughout the district.

A local inquiry was held by the district board, and it was proved beyond all question that for fifty or sixty years the public had used this bridle-way. The bridle-way passed over the land of a noble -Duke, a member of this House, who wrote to the district board stating that in his view it was a public way, that he had always recognised it as such, and that he wished it to remain open. As I have said, the evidence was conclusive on the point that for fifty or sixty years it had been used by the public without any interruption, and there was no evidence whatever to the contrary. But the district board were informed by their lawyer that the question of law arising upon the point whether dedication could be presumed in such a case was so uncertain that he could not advise them to maintain legal proceedings for the purpose of vindicating the right of the public. Accordingly no proceedings were taken by the district board, and the bridle-path was therefore closed to the public. Upon that six of the neighbouring landowners signed a strong protest which they published in the local papers. I will venture to read an extract from it because it gives a justification for the Bill which is now before your Lordships. Tins is what they said— Mr.… having purchased the glebe, claims to be in a position to obstruct the bridle way, and to say to the public, who have used it openly and freely as long as the oldest inhabitants can recollect, You shall no longer use this bridle way.' We can see that until the law is altered to safeguard the public from such legal technicality, it might not be possible to succeed in a legal action against this gentleman; but surely he cannot fail to admit, after having heard the unanimous evidence so unreservedly given at the inquiry by men of honour and repute, that there had been an uninterrupted use for so many years, that the moral victory remains with the petitioners. This is just one of those cases where a landowner can, by relying on a single and technical legal point, suddenly deprive the public as well as those who ought to he his friends and neighbours of a right which has existed probably from time immemorial. I could quote other cases of the same kind. I have been surprised myself at the cases of this nature which have occurred. In these circumstances we feel that a change in the law is absolutely necessary.

I may remind your Lordships that the law such as I have described it used to be the law with regard to private rights of way and other easements over property in favour of an adjoining property. But in 1832 the Prescription Act was passed which altered the law and provided, as against owners of property held absolutely, that twenty years' user of the private right of way or easement would be sufficient and conclusive, and, as against a tenant under an entailed estate or a glebe owner, that forty years' user would be sufficient. What we propose by this Bill is to copy the Act of 1832 and apply it to public rights of way as well as to private rights of way; and if your Lordships assent to this measure, then twenty years' user as against property held absolutely without entail or family settlement will be sufficient. to give to the public a right of way, and in the case of limited estates or estates under disability of any kind forty years' user will be sufficient. That, in fact, is very much the law of Scotland at this moment, with some trifling differences which it is not worth while noticing. For in Scotland there is no presumption of dedication. Rights of way there depend wholly on user, and user for forty years is sufficient to give the public a right.

I do not think it will be necessary for me to describe at further length the details of this Bill. It is a comparatively short one, and if your Lordships agree to the Second Reading there will be in Committee full opportunity for discussing the details. But I should like to say a few words before I sit down as to the value of footpaths. I think everybody must agree that as the population of this country increases, so the value of footpaths becomes greater. Still more so is that the case at the present time, when motors and traction engines, motor-cycles and bicycles have invaded the country roads throughout the whole of the country and have destroyed a great part of their charm. For my part I have lost all pleasure in walking on the rural roads in my district, and I only feel pleasure in rural scenery when I get off the road on to a footpath. Fortunately a whole net- work of footpaths exists all over the country. I think very few people have any idea of the number of footpaths which exist.

During the last few years the society to which I have referred has been appealed to in many cases, both by landowners and local authorities, to arbitrate between them as to footpaths existing upon properties. In one case—that of the Chequers Estate, in the county of Buckinghamshire, consisting of 3,000 acres—the owner appealed to the society, with the consent of the local authority, to arbitrate as to the footpaths on his property, and the society, through its officer, held a local inquiry on the subject. While rejecting some of the footpaths which were claimed, we decided that no fewer than thirty-six footpaths were legitimate and were to be affirmed in existence. In the same manner in many other parts of the country we have held arbitrations upon the existence of footpaths. Of course these decisions are not legal in this sense, that they are not final; but when local authorities and landowners agree to accept them they may practically be considered as final decisions. In this way we have arbitrated in regard to footpaths on about 500 square miles in five different counties, and in respect of these 500 square miles we have decided that something like 3,000 footpaths exist. If that be the proportion throughout the whole country, there must be something like 300,000 footpaths in England and Wales. Whatever the number may be, however, I think we may take it for certain that they are very highly valued by the people in the various districts.

Every local authority almost without exception in the country has petitioned in favour of this Bill. Such associations as the County Councils Association, the Rural District Councils Association, and others of the same kind, after careful inquiry, have petitioned in favour of the Bill, and I think I may say that every local authority in the country is in favour of it. I venture, therefore, to think that your Lordships will do well to accept the views of local authorities throughout the country. For my part I believe that your Lordships could not do a more popular act than pass this Bill and put an end to those technicalities which threaten the existence of many of the footpaths throughout the country. I beg to move the Second Reading of the Bill.

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

LORD NEWTON

My Lords, a portion of the noble Lord's remarks seemed to be intended to convey the impression, which I thoroughly share, that it is of considerable advantage to initiate legislation in this House—an opinion which I am afraid is not very generally shared by the noble Lord's colleagues. I have frequently observed, not only here but in another place, that when a measure of this kind is brought forward it is generally represented as being a perfectly harmless and colourless measure which is going to do an immense amount of good, but which, nevertheless, is going to leave everything in exactly the same position as before, and nobody is going to be inconvenienced in the slightest degree. In full accordance with this practice I observed that the noble Lord referred to this particular Bill as a fleabite—

LORD EVERSLEY

Only in comparison with the other.

LORD NEWTON

Quite so. I should like to point out that this measure, estimable no doubt though it is, is not so insignificant as the noble Lord would desire us to believe. I may say that I have no intention of offering opposition to this Bill, for one excellent reason—namely, that I personally have always taken particular care not to put any obstruction in the way of the public in this matter, because I know very well that if I did I should only get the worst of it. But I should like to point out that, however colourless and insignificant this measure may be, it is, I believe, the first occasion on which an owner is presumed not to enjoy full rights in his land unless he can show that he has not parted with those rights in favour of the public. It might be extremely difficult to bring evidence to negative any intention of dedicating a right of way, and quite conceivably it might he necessary to prove interference with a right of access.

If we are going to admit this somewhat important principle, which, after all, is a new departure, it is essential that there should be certain safeguards. It seems to me quite clear that an owner at all events should have knowledge beforehand of the possibility of such a right arising against him. Therefore I think it is obvious that this Bill ought not to apply to land which is held under current leases, because the owner, naturally not anticipating legislation of this kind, in all probability has never guarded against the chances of the tenant allowing public access to his land, knowing that in consequence of the inaction of his tenant under the present law no right could accrue against him. It ought also, I think, to be made perfectly plain that an owner must have been in effective possession of his land before an intention to dedicate can he presumed, because it is quite conceivable that there might be intervals between the termination of the leases in which a man might. be in technical possession. The justice of the Amendments which I have suggested was recognised by the Committee of the House of Commons which considered the Bill, I think two sessions ago, on which the Government were represented in the proportion of something like four to one, and these alterations were accepted without any discussion at all.

But I really have risen to point out a matter which I observed the noble Lord did not allude to at all in the course of a somewhat lengthy speech. I desire to draw particular attention to Clause 5 of the Bill. I suppose the noble Lord will tell me that this, like the Bill, does not mean anything in particular. If that is so, I shall certainly move to leave out the clause when we go into Committee. But as 1 read the clause, it appears to me to be perfectly plain that it is intended to deprive an owner of all rights over his land except, of course, such as are enjoyed by the general public, and to leave him the liability for repairing the road or highway or whatever it may be that has become public property. Otherwise the clause seems to me meaningless. And, in addition to that, surely under this clause a man would not only be liable for the upkeep and the maintenance of what he used to believe was his own property but has become the property of the public, but he would be liable for any accident which might occur in consequence of his neglect. I should like to put this analogy to the noble Lord. It seems to me precisely on a par with this. I, out of my good nature, lend the noble Lord my watch. The noble Lord, having had my watch for a certain period, mines to me and says, "In consequence of your action your watch now belongs to me, but, although it belongs to me, it will be your duty to wind it up and to keep it in repair, and if it goes wrong I shall send the bill in to you; and if any unfortunate accident should occur through the watch not keeping time I shall sue you for damages." That seems to me common-sense interpretation of this clause, and certainly unless I get a better explanation of it when the Bill goes into Committee I shall move to leave the clause out.

THE EARL OF CAMPERDOWN

My Lords, I do not rise to offer any opposition to the Second Reading of this Bill, but I. wish to make a few remarks with regard to it. I am sure that no one in this House wishes to interfere with existing footpaths, nor in any way to curtail the rights of the public. On the other hand, I think it is our duty to look at the language of the Bill very carefully, and not to admit rights per incuriam and without having considered what we are doing. I must say that, like my noble friend Lord Newton, I was very glad to hear the confidence which the noble Lord who has moved the Second Reading of this Bill places in this House. It appears that some of his friends who. I suppose, have no experience of this House, believe this House to be a very unfair body of legislators; but my noble friend, having some experience, knows us better, and has, therefore, very wisely introduced this Bill here.

LORD EVERSLEY

I was referring to when the Bill was in the hands of private Members.

THE EARL OF CAMPERDOWN

The noble Lord said that some of his friends had told him that he was doing a very risky thing in introducing the Bill into your Lordships' House, but he said he believed this House would give it careful and impartial consideration, and it was in regard to that remark that I was expressing my entire agreement with him. The noble Lord spoke of the Bill as referring almost exclusively to settled property, but it does a great deal more than that. He did not call attention to some of the main features of the Bill. But before I go to that, let me point out that this Bill, if it passes into law—and I do not see why it should not—is very likely to have a different effect from what the noble Lord expects. In the first place, when. an owner who has allowed people to pass through his park or go along footpaths sees that if he allows this for twenty years he is presumed to have dedicated the path to the public, he will be inclined to be rather more chary of giving permission than he has been up to the present time. And whatever owners might do, it would be absolutely the duty of trustees to stop all these ways which, if they allowed them to continue for forty years, would enable the public to claim rights to the footpaths.

With regard to the Bill itself, if your Lordships will look at Clause 2, you will see a provision that "where any way"—it is not limited at all to settled property and there is no reference to the fact that it is supposed to be or claimed to be a right of way— where any way…has been actually enjoyed by the public without interruption for a full period of twenty years, such way shall be al to have been dedicated as a public highway. In the first place, what is the meaning of the words "actually enjoyed by the public without interruption "? Those words are taken from the Act of 1832, and although drafting may not be very good at the present time, yet in those days words which were not very precise were much snore freely used than now. Then if the noble Lord will turn to Clause 6, he will see that in applying the words to Scotland he uses much more precise terms. He says this— There shall be deemed to be a right of public way upon or over land or water wherever there has been a use of such way by the public as a matter of right., continuously and without interruption, for a full period of twenty years. Those words are clear and perfectly definite. It must be shown, not merely that a person has used a path, but that he has used it as a matter of right and could not be prevented from going over it by any one, also that he had used it continuously and without interruption. As the Bill now stands, the full period of twenty years might mean any twenty years in the last hundred years. There is no provision fixing the period of time in which the twenty years occur.

Then in Clause 3 I find this provision— In the case of any way which previously to the passing of this Act has been decided by a competent Court not to be a public highway, this Act shall not apply except as from the date of such decision. What does that mean? I really do not understand. Does it mean that the Court having decided that the right of way does not exist, the right of reviving that action has to commence again after the date of the judgment; or what does it mean? I should have thought that if the clause had stopped at the words "this Act shall not apply" that would have been the right thing to do. Clause 5 appears to me, if it has any meaning at all, to be very dangerous. It provides that— Nothing in this Act shall he construed as having the effect of imposing on the council of any county, county borough, or district., or any other highway authority, any liability for the repair of any road which they would not have been liable to repair if this Act had not been passed. At the present time there is no liability on any council of any county or county borough or district to repair any one of these roads. Why is it necessary to put in the Bill a statement to the effect that they are not liable? If they were called upon to repair one of these roads, then would be the time for them to object; but by putting in these words you infer that there is somebody else who is legally liable, and the natural inference would be that the owner whose path was taken was to be held liable. At all events it would be a sufficiently good argument for any counsel that as the council was not liable therefore the owner must be. Really the Bill, as far as I can understand, would be exactly the same if this clause were not in it. I have said all that I wish to say to your Lordships on this occasion. No doubt my noble friend will consider the matter before Committee, and will either propose Amendments himself or accept Amendments proposed by other noble Lords concerning these points.

LORD ZOUCHE OF HARYNG WORTH

My Lords, I only interpose for a few moments in this debate. If this Bill would have the effect of settling a very vexed question it certainly ought to pass into law, because, as the House is aware, nothing gives greater cause of offence in country districts than disputed rights of way, and there is no more fruitful cause of quarrel amongst neighbours. At the same time I venture to think that this Bill requires extremely careful consideration, and that there are various Amendments which might with advantage be introduced into it. Many of them, of course, require very careful legal consideration, but perhaps as a mere layman I might point out one or two things which your Lordships might think worthy of consideration.

Clause 2 lays down that a way shall be deemed to have been dedicated as a public highway "unless it shall appear that there is sufficient evidence arising during that period negativing the intention to dedicate such way," and those words are repeated a little lower down. It has always been a moot point how this evidence can be satisfactorily produced—that is to say, evidence that a man has no intention of dedicating a public way. It is sometimes held that the closing of a gate or a barrier once or twice a year will have that effect, but occasionally that is denied. There may be no gate or barrier to close in a particular case, and the construction of a new barrier might give rise to great objection and possibly to rioting. If an Amendment could be introduced into this Bill—it is, of course, difficult because we are dealing with a negative—defining some method by which it could be made clear by an owner that he had no intention of dedicating such a way, great good would be done and a difficult point would be cleared up.

Then in Clause 3 there is the provision that— in the case of any way which previously to the passing of this Act has been decided by a competent Court not to be a public highway, this Act shall not apply except as from the date of such decision. I should like to know whether the term "competent Court" would apply to a local authority. In the Memorandum prefixed to the Bill a good deal is said about the duty and action of local authorities in this matter. I have in my mind at the moment a case of a disputed right of way where a man was turned off a certain path of which he claimed to have the right of user. He was turned back and there was a dispute, the matter being subsequently referred to the local authority. The local authority appointed a sub-committee to inquire into it, and after a quite dispassionate inquiry they decided that there was not a right of way here and that the man was in the wrong. Whether technically the local authority were competent to decide the question I do not know, but it seems to me that a decision of that sort one way or the other ought to be taken into consideration at all events as going a long way to settle the matter once and for all.

Speaking generally, I think great care should be taken to prevent going too far in the way of asserting public rights of way over property. of reviving doubtful rights, and of maintaining that the public have a right of way when the thing has not been clearly established. Such action might seriously interfere with a housing or town-planning scheme. For instance, I know a case where a friend of mine purchased a piece of land and proceeded to build a house upon it. Nothing was said by anybody. The house was nearly completed when, at the last possible moment, the local authority suddenly sprung a mine upon this unfortunate person and said there was a public right of way going, if not actually through the house, within five or six yards of it. It was a serious matter, almost necessitating the contemplation of pulling the house down. It is only right, however, that I should say that there were no building by-laws in that district, and that therefore the erection of the house did not come before the local authority in the first instance. But that does not alter the hardship occasioned. Negotiations took place, and a neighbouring landowner who was concerned indirectly came to the rescue and ultimately the matter was settled. I merely quote that instance as showing what danger may be run into if this Bill is passed into law- without due and proper consideration. Short of that, and hoping that these points will be considered when we go into Committee, I think that the Bill may be allowed to pass its Second Reading, and I hope it will have the good effect looked for by its promoters.

THE EARL OF HALSBURY

My Lords, I have no intention of interfering with the Second Reading of this Bill, and I rise only for the purpose of affirming what has been said more than once in the course of the discussion—that there are a great many things in this Bill that require careful consideration. I have this generally to observe, that there is here an attempt to remove from the jurisdiction of a jury to a question of positive law, the operation of a particular period of time, of which I entirely disapprove. Juries are by no means reluctant to recognise public rights, and I do not remember a case that I could properly think was wrongly decided against the public, although I know many that were very lightly allowed by the jury to prevail. I entirely differ from the idea that there is any general presumption in a jury's mind against allowing public rights. I am afraid that restrictions of the sort proposed are very likely to produce bad feeling among neighbours, and at all events the tendency of them will be to prevent people doing a good-natured thing in allowing a path over their grounds if it is afterwards to be turned into a question of right. Every one who lives in the country knows that this is a constant subject of quarrel. A great deal of this involves somewhat difficult questions of law, and I think they have been rather lightly dealt with.

My noble friend behind me gave the odd illustration of somebody's watch being borrowed and responsibilities being incurred by reason thereof. I will give an example to show that what he pat as an extravagant hypothesis may really have its counterpart in actual fact. I remember the case of a public-house situated where the road divided into two, and for the convenience of his customers the landlord had two side doors, both of which were open. Somebody by accident tumbled and broke his leg when going from one door to the other, and it was seriously sought to assert that because the public could as a matter of fact and very often did go through these two open doors that established a right of way. That is one of the few cases in which I have known a jury to repudiate the claim. But, speaking seriously on the matter, this House should consider carefully what may be the result of establishing a right of way where there is no such thing as a right of way but where there has been indulgence by good nature. By so doing you may destroy the whole value of a building estate. Certainly with reference to Clause 5, if you are going to insist upon a right the party having the right ought to have the responsibilities also, and a person should not be charged with the repair of a road which he is very anxious indeed not to have through his property. That, however, might be the result of the provision in Clause 5. As I have said, I quite recognise that the general feeling is that this matter is one which requires legislation. That, I think, is all that one ought to admit on this occasion. But I think careful consideration is required to see that the rights of owners are not given away lightly. That is a matter we can take care of in Committee, and I offer no opposition to the Motion for the Second Reading.

THE LORD CHANCELLOR (LORD LOREBURN)

My Lords, I think the House is generally agreed that this Bill ought to be read a second time, and I am myself strongly in sympathy with any movement to preserve for the public rights of way and to prevent them from being defeated by legal technicalities or legal objections. I wish, however, to offer a few observations in regard to this Bill. The noble Lord who introduced it, following the Memorandum which is prefixed to the Bill, practically rested his case upon the theory that when property is settled nobody is capable of dedicating a right of way to the public. I will not enter upon the legal question that arises upon that. But the Bill deals with many more things than that. The Memorandum states that a Bill in substantially the same form was given a Second Reading in the House of Commons. I do not know whether the Bill was there examined, or whether it was in its present shape then, because any small variation might make a great difference in the result.

The drafting of this Bill certainly requires very great attention. The noble Earl, Lord Camperdown, pointed out one thing which I had noticed myself, and which, as far as I can see, is a defect in the Bill—that if any way has been actually enjoyed by the public without interruption for a full period of twenty years, it shall be deemed to have been dedicated as a public highway unless one or two things happen. No period of time in which the twenty years occur is fixed. It might be that in the reign of Henry VIII a piece of land was used by the public for twenty years. In other words, if you can show that in any period in the history of England there has been twenty years' enjoyment of any way, then the presumption to dedicate is established. I am quite sure that is not the intention of the noble Lord, but it is a point that ought to be taken into consideration.

There is only one other thing I would like to say. This Bill is an instance of setting up a law fir England and then adding Scotland by way of a little parenthesis. It is provided in the Bill that in the application of it to Scotland the expression "public highway" shall mean so and so, and it goes on to the objectionable form of legislation by reference. You are comparing two different systems of law. The system of law in Scotland relating to this matter is different from the system of law in England. I do not wish to take exception in principle to the actual thing proposed in regard to Scotland, but I do say that you might do Scotland the honour of giving her a clause to herself, setting out in language that is applicable to Scottish law what it is you propose. I hope that this will be. turned into a good and useful Bill by a thorough consideration in Committee, prior to which stage I think the noble Lord in charge of the Bill ought to give a little time in order that members of your Lordships' House may take advice as to the meaning of the respective clauses, and prepare Amendments.

LORD CLIFFORD OF CHUDLEIGH

My Lords, I shall support the Second Reading of this Bill on the ground stated by the noble Lord, that it will put a stop to unnecessary and acrimonious litigation which always occurs on this kind of subject, and on the further ground that it is very important in the present day that country paths and country walks should be as open to the public as possible. If this is to be obtained, it seems to me that you should not only accelerate and assist the establishment of rights of way, whether the right has been dedicated by presumption or otherwise to the public, but that you should also get rid of the very cumbrous and inadequate method of defeating a right of way. No doubt every one has come across cases where when a person is trespassing it is necessary, if you are to strictly maintain your rights, that you should put that person to considerable inconvenience by shutting the gate when he does not expect it, and sending him back a mile and a half on his way. Therefore I think it is necessary that there should be some simpler and more intelligible and better known way of establishing the anti-presumption to dedication than there is at present. I was speaking on one occasion to a promoter of this Bill, and he said, "If you put up a notice over your road to say that people only use the road by your permission and indulgence, that is a clear proof that you do not intend to dedicate." But I am not quite certain that that would be so taken. I think that there ought to be an easier method established by which you can indicate your intention, and that it should be inserted in the Bill.

LORD EVERSLEY

My Lords, before the Bill is read a second time I should like to say, with respect to the observations of the noble and learned Lord on the Woolsack as to the application of the Bill to Scotland, that I do not regard that as at all an important part of the Bill. These clauses were inserted in Grand Committee in the other House. They were no part of the original Bill, and I quite agree that it is not at all a convenient method of legislation; and for my part I should very much prefer that these clauses should be omitted and that the Scottish case should be dealt with in a separate Bill. With regard to the observations of Lord Zouche that the Bill might interfere with town-planning schemes, I would point out that in the Town Planning Act there is power given to close any footpaths. Therefore the Bill would not interfere in any way with that Act. The other objections raised seem to me to be objections for-Committee, and I can only say that when the Bill is in Committee I shall be ready carefully to consider all the objections which have been made, and possibly to modify the Bill. With regard to the main principle—namely, dealing with footpaths where the difficulty is great in consequence of settlements in tail—there has practically been no objection raised on the part of your Lordships. I think that the debate has been a very satisfactory one in that respect. inasmuch as the main principle of the Bill is now admitted.

On Question, Bill read 2a, and committed to a Committee of the Whole House on. Thursday the 30th instant.