HC Deb 30 January 1931 vol 247 cc1391-400

Order for Second Reading read.


I beg to move, "That the Bill be now read a Second time,"

So little time is available for discussing this Bill, that I propose, if the House will allow me, not to speak for more than five

The House divided: Ayes, 148; Noes, 10.

Division No. 100.] AYES. [3.18 p.m.
Adamson, Rt. Hon. W. (Fife, West) Hurd, Percy A. Rowson, Guy
Albery, Irving James John, William (Rhondda, West) Salmon, Major I.
Alpass, J. H. Jones, Morgan (Caerphilly) Samuel, A. M. (Surrey, Farnham)
Ammon, Charles George Jones, T. I. Mardy (Pontypridd) Samuel, Rt. Hon. Sir H. (Darwen)
Baillie-Hamilton, Hon. Charles W. Jowett, Rt. Hon. F. W. Samuel, H. Walter (Swansea, West)
Baker, John (Wolverhampton, Bilston) Kennedy, Rt. Hon. Thomas Sanders, W. S.
Baldwin, Oliver (Dudley) Kenworthy. Lt.-Com. Hon. Joseph M. Sawyer, G. F.
Batey, Joseph Lawrence, Susan Scrymgeour, E.
Bellairs, Commander Carlyon Lawrie, Hugh Hartley (Stalybridge) Shaw, Rt. Hon. Thomas (Preston)
Bennett, William (Battersea, South) Lawson, John James Shepherd, Arthur Lewis
Benson, G. Leach, W. Shillaker, J. F.
Bourne, Captain Robert Croft Lee, Frank (Derby, N.E.) Short, Alfred (Wednesbury)
Bowyer, Captain Sir George E. W. Leighton, Major B. E. P. Simmons, C. J.
Briscoe, Richard George Longden, F. Simon, E. D. (Manch'ter, Withington)
Burgess, F. G. Lovat-Fraser, J. A. Sinclair, Sir A. (Caithness)
Buxton, C. R. (Yorks. W. R. Elland) Macdonald, Gordon (Ince) Sinclair, Col. T. (Queen's U., Belfst)
Cadogan, Major Hon. Edward McElwee, A. Smith, Ben (Bermondsey, Rotherhithe)
Campbell, E. T. McEntee, V. L. Smith, Frank (Nuneaton)
Charleton, H. C. MacLaren, Andrew Smith, W. R. (Norwich)
Church, Major A. G. Maitland, A. (Kent, Faversham) Snell, Harry
Cunliffe-Litter, Rt. Hon. Sir Philip Markham, S. F. Somerville, A. A. (Windsor)
Daggar, George Marley, J. Sorensen, R.
Duncan, Charles Mathers, George Southby, Commander A. R. J.
Ede, James Chuter Millar, J. D. Spender-Clay, Colonel H.
Edmunds. J. E Mitchell, Sir W. Lane (Streatham) Strauss, G. R.
Edwards, C. (Monmouth, Bedwellty) Morrison, Robert C. (Tottenham, N.) Taylor, W. B. (Norfolk, S.W.)
Evans, Capt. Ernest (Welsh Univer.) Morrison, W. s. (Glos., Cirencester) Thomson, Sir F.
Gardner, B. W. (West Ham, Upton) Mort, D. L. Thorne, W. (West Ham. Plaistow)
Glassey, A. E. Motley, Lady C. (Stoke-on-Trent) Thurtle, Ernest
Gossling, A. G. Muqgeridge, H. T. Tillett, Ben
Gould, F. Nield. Rt. Hon. Sir Herbert Tinker, John Joseph
Gower, sir Robert Noel Baker, P. J. Vaugban-Morgan, Sir Kenvon
Granville, E. Oldfield, J. R. Viant, S. P.
Gray, Milner Ormsby-Gore, Rt. Hon. William Walker, J.
Grenfell, D. R. (Glamorgan) Parkinson. John Allen (Wigan) Wallace, Capt. D. E. (Hornsey)
Griffith, F. Kingsley (Middlesbro' W.) Penny, Sir George Wallace, H. W.
Groves, Thomas E. Peters, Dr. Sidney John Warrender, Sir Victor
Grundy, Thomas W. Phillips, Dr. Marion Watkins, F. C.
Hacking, Rt. Hon. Douglas H. Pole, Major D. G. Wayland, Sir William A.
Hall, Lieut.-Col. Sir F. (Dulwich) Potts, John S. Wellock, Wilfred
Hall, G. H. (Merthyr Tydvil) Pownall, Sir Assheton Whiteley, Wilfrid (Birm., Ladywood)
Hall, J. H. (Whitechapel) Pybus, Percy John Whiteley, William (Blaydon)
Hall, Capt. W. P. (Portsmouth, C.) Ramsay, T. B. Wilson Wilson, J. (Oldham)
Hartshorn, Rt. Hon. Vernon Ramsbotham, H. Wilson, R. J. (Jarrow)
Haycock, A. W. Rathbone, Eleanor Wise, E. F.
Henderson, Capt. R. R.(Oxf'd,Henley) Reid, David D. (County Down) Wood, Major McKenzie (Banff)
Heneage, Lieut.-Colonel Arthur P. Richardson, R. (Houghton-le-Spring) Young, Rt. Hon. Sir Hilton
Hennessy. Major sir G. R. J. Romeril, H. G.
Hudson, Capt. A. U. M.(Hackney, N.) Rosbotham, D. S. T. TELLERS FOR THE AYES.—
Hudson, James H. (Huddersfield) Ross, Major Ronald D. Mr. Bellamy and Sir J. Ferguson.
Atkinson, C. Messer, Fred
Beamish, Rear-Admiral T. P. H. Peake, Capt. Osbert TELLERS FOR THE NOES.—
Ford, Sir P. J. Remer, John R. Brigadier-General Makins and
Hamilton, Sir George (llford) Reynolds. Col. Sir James Lieut.-Colonel Moore.
Llewellin, Major J. J. Ward, Lieut.-Col. Sir A. Lambert

Bill read a Second time, and committed to a Standing Committee.

minutes. May I say, in the first place, that this Bill is a non-party Bill. It has been introduced previously by other Members on these Benches—the present Prime Minister introduced it as far back as 1907—and by Members who sit on the Conservative Benches. This is the first time, I think, that it has been introduced by a Liberal Member, and I hope that it will be more fortunate than on other occasions. A Measure of the kind has been read a Second time on no fewer than five occasions, and has been twice through Committee, the last time in 1913, and the present Bill is exactly the same Bill as emerged from Committee in 1913. The Bill also passed twice through all its stages in the House of Lords. It has, therefore, I may reasonably say, a very respectable history. As regards support in the country, I think that everybody knows that the Bill has been supported by hundreds of resolutions by local authorities; it is enthusiastically supported by all ramblers' associations and many other associations. As far as I know, no resolution against this Bill has ever been passed by any association of any sort.

The main object of this Bill is to simplify and make clear the law relating to public rights of way. The law is at present very complicated. When an action is fought, all sorts of records have to be looked up, the oldest inhabitant has to be brought along, and it is quite uncertain in many ways what has to be proved in the direction of public user. The result is that these actions are exceedingly expensive. It is estimated by the Commons and Footpaths Preservation Society, who, as hon. Members know, are doing extraordinarily good work, that there are something like 300,000 footpaths and public rights of way in this country. Each year there are no fewer than 2,000 cases where attempts are made to deprive the public of existing rights of way. There is a very well-known footpath leading to Aber Falls in North Wales, probably the most magnificent walk in Great Britain, which, to my personal knowledge, has been open to the public for 20 years. Suddenly, a year or two ago, a new owner—and it is always a new owner or new agent who causes this trouble—closed the right of way. The local authority brought an action to protect the public. They won their action after the first day at a cost of £1,500, and the local authority had to pay the whole lot. It was an almost frivolous case, and that kind of thing is continually happening, involving great expense.

One of the main objects of this Bill is to simplify the law in such a way as to reduce the expenses of such actions. It is impossible for me to attempt to explain in any fullness how that is to be done, but it is set forth clearly in the Memorandum to the Bill. Putting it very shortly, the main trouble arises in cases of settled estates where nobody has appeared to dedicate a public right of way. There seems to be a legal fiction that public user does not constitute a public right of way. The only way in which a right of way can arise is by dedication of the landlord. Such dedication, in fact, rarely occurs, but, if the courts hold that such dedication may fairly be assumed, the right of way is regarded as being established. There are, however, many of the greatest estates in the country where there have been settlements for 200, 300 and 400 years, and it is impossible to prove that public rights of way have existed all that time, and judges differ in their interpretation. If it is proved that there has been a public right of way for 30, 40 or 50 years, some judges hold that they are justified in assuming dedication to have taken place before the date of settlement.

One Judge went so far as to say that he was perfectly prepared to go back as far as William the Conqueror and assume that dedication must have occurred before that if necessary. Other Judges have held that they are not justified in making any such assumption. The law is in a complete state of confusion on the matter, and this Bill simplifies the thing by saying that in case of freehold land, if uninterrupted user by the public can he proved for 20 years, that shall be regarded, except in abnormal circumstances, as proving dedication. As regards settled land, if a public user can be proved for 40 years, that shall be regarded as sufficient proof that dedication was intended. In future, therefore, there will be no uncertainty in the law if this Bill becomes an Act.

The first advantages of this Bill will be that, where a case of doubt arises, it will very much simplify an action, and reduce the costs which are now preventing many landowners from testing a case. There was one case not long ago where a landowner had to pay the costs of an action because he lost, and it cost him no less than £15,000. The second result of the Bill will be to make it easier for local authorities to maintain existing public rights of way. The third is to make it easier for the landowner to prevent the creation of new rights of way against his will. There is a special provision for that purpose under which he can put up notices, stating that dedication is not intended, so that there is no danger of a right of way being created.

I have already said that this Bill has five times passed Second Reading in this House, It is becoming more important every year owing, on the one hand, to the increase in motoring and, on the other, to the great increase in rambling. The Bill is much more important to the country than it was when it was previously introduced, and I ask the House, in spite of the fact that we have so short a time in which to consider it, to give it a Second Reading to-day and let it go to Committee, and ultimately I hope on to the Statute Book of the House.

Rear-Admiral BEAMISH

I beg to second the Motion.

I have heard from one or two with whom I have discussed the Bill that its title alone is dangerous and pernicious. At first sight that might, perhaps, strike anybody as being so, but when the Bill is read, and the safeguards in it are noted, I feel confident people will feel that it is neither dangerous nor pernicious. The main principles of it have been accepted by the County Councils Association, the Municipal Corporations Association, the Urban District Councils Association, and last, and by no means least, by the Rural District Councils Association. I say by no means least, because the rural district councils include a great many members who are landowners and are specially careful of their rights in their property, and if that Association has agreed to the main principles I think it is a. very fair proof of the soundness of the Bill.

If I may repeat in other words what are the main objects of the Bill, I would say they are to lay down fair rules for the Courts, to safeguard landowners against new encroachments on their property, and to protect landowners and the public authorities against the possibility of very heavy legal expenses such as have been so often incurred in the past. In no sense of the word is the Bill designed to harass landlords; if it were, I should most certainly not support it; and privacy, that precious possession which people who live in the country will never give up if they can help it, is not endangered by this Bill. Even with deliberate, persistent, successful and un-prosecuted trespass in the future, no right-of-way can be proved or secured in less than 20 years. One of the safeguards which attracts me very much is that any landowner who thinks that his privacy or his property is being endangered in any way has the right under this Bill to put up a notice, which is taken as proof in a court of law, that he is absolutely opposed to anybody utilising the path people are trying to create. That is not the case at the present time.

In regard to the 20-year period, it must be remembered that much shorter periods than 20 years have been accepted by the Courts as proof of a right-of-way. There is a right-of-way through my own front gate, and I wish there was not, but, at the same time, there it is, and it is not abused; but no further rights-of-way can be created on my property or that of anybody else if advantage is taken of the safeguards of the Bill. The hon. Member who moved the Second Reading has mentioned the delights of rambling. Few things are more enchanting than walking along the paths of our incomparable countryside, but nothing is more detestable than the habit, which I am glad to say is not growing, of abusing those privileges and rights and destroying the property of others through which paths pass. The public conscience is, being awakened by the various societies in regard to the rights and defies of the public in this respect, and this Bill will tend to help in that education of the people. It will also have the effect of settling disputes which are in existence at the present time, and eliminating a good deal of bitterness which exists in certain districts in regard to rights of way. This! Measure will preserve and protect the existing rights of way, and create a safeguard against further rights of way being created. It will shorten and cheapen any litigation which may come into play. For these reasons, I very strongly commend this Bill to the House. A similar Measure was proposed 23 years ago, and the question has been hanging about ever since. The subject with which we are dealing is substantially the same as it was in 1914, and I ask the House to give this Measure a Second Reading without a Division.


I think the comprehensive arguments which have been used in support of this Measure by the Mover and Seconder are overwhelming. I do not think there is any danger of abuse contained in the proposals of the Measure, and the public conscience is being very rapidly educated. The only objection I can see to the Measure is that it does not go far enough, but that is no argument against the House of Commons making a beginning. I hope the passage of the Bill will be swift and unobstructed at every stage, because it is a Measure which ought to have been placed on the Statute Book many years ago. There are many hon. Members who have come to the conclusion that the procedure of this House is not at all adequate to the needs of a complex and quickly changing society. This Measure was brought before Parliament in the year 1914, and it contains proposals which will be to the advantage not only of landowners and local authorities but also of ordinary citizens. It commands the support of all instructed opinion outside, and it has had the unanimous assent of both Houses of Parliament on more than one occasion, and yet, owing to the delays caused by our present procedure, the measure has never been placed on the Statute Book. The delay which has ensued has caused a feeling of disappointment among the public who are concerned about Measures like this. I hope that what has happened in the past will not be repeated on this occasion, because it is important, for the good name of Parliament, that the Bill should not once more fail to pass. [HON. MEMBERS: "Agreed".]

The purpose of the Bill is to give a rational basis to the law in regard to the right of way. At the present time, that law rests upon a fiction, but we ought to have a rule which Judges can apply and on which they can secure agreement among themselves. Here is a typical example of the kind of thing of which the Secretary of State for the Dominions was speaking the other night when he said that the law is an ass. Here are Judges, without any rules, giving judgments in different parts of the country in open and direct conflict with one another. We ought to have a rule which gives them a basis for their judgments.

The House, I am sure, in every quarter, is agreed, and I hope, therefore, that, because of the practical advantages of the Bill, and because it will safeguard to the young men and women of our cities their right to walk in the countryside, it will be given a Second Reading to-day and will be passed through all its stages. The vast majority of our fellow-citizens live to-day in the squalid conditions of our industrial cities, in places in which, as a great writer had said, it looks as though poverty had been born, had grown up, and would never die. Hundreds of thousands of these young men and women of our cities are learning to walk in the countryside. Let us safeguard for them by this Bill, and, I hope, by other Bills in the future, the freedom of the woods, the hills and the open fields.


I do not desire to obstruct the Second Reading of this Bill, but there are one or two matters to which I should like to draw the attention of the. House. No one wants to see existing rights of way curtailed in any way. As the Mover of the Bill said, it is more than ever necessary now, with motor cars rushing along the roads, that those who want to walk should have places where they can walk without being subjected to the dust and rush of motor vehicles. On the other hand, there is a danger, if it were not for the provision in Sub-section (3) of Clause 1 of the Bill, that landowner[...], would be more careful than they are now to prevent anyone from walking across their ground. A large number of those who own land in this country at the present time are quite content for people to traverse their ground so long as they are not in that way dedicating a right of way for all time, and it is quite proper that, for the sake of the benevolent type of landlord, as against the man who will put up barbed wire against everyone, that there should be this provision that, by merely putting up a notice board, he can show that he allows people to walk over his ground, but yet is not admitting for all time that he is dedicating a right of way. Without some provision of this sort, a large number of walks that are habitually used by people around our villages up and down the country will be stopped by landlords because of a Bill such as this. Again, I do not know how far Subsection (4) of Clause 2 will affect the pro- vision in Sub-section (3) of Clause 1. Sub-section (4) of Clause 2 reads as follows:— Nothing in this Act shall operate to prevent the dedication of a way as a highway being presumed … under any circumstances under which it can be presumed or proved at the time of the passing of this Act. No doubt the learned Solicitor-General will apply his attention to these points. It is all-important, for the sake of allowing people to traverse the countryside, that Sub-section (3) of Clause 1 should be preserved intact. Sub-section (1) of Clause 1 provides that there must he a period of 20 years, unless at any time a person in possession of the land is capable of dedicating such a way. That means that, if a man has come into the possession of land for one day, or for one week, Clause 1 (1) operates, but if no such person has come into possession the 40 years will be needed under Clause 1 (2). I do not think the words should be "at any time." It should be some reasonable length of time in which it is possible to put up notices in order to prevent the way he is by his generosity allowing people to use to be dedicated for ever to the public. The Bill will very much simplify the law and simplify the proof as to whether a right of way exists or not, and some such Bill as this should come on to the Statute Book.

The SOLICITOR-GENERAL (Sir Stafford Cripps)

The Government desire to support the Second Reading of the Bill. It has been supported by every Government since 1907 and by every Law Officer, and also by the judges in the House of Lords. If I might answer the question of the hon. and gallant Gentleman who has just spoken, in my view Sub-section 2 (4) does not in the least diminish the rights given under Clause 1 (1) to an owner to have protection by putting up notices on his land. The Bill achieves what should be the purpose of every Bill. It makes the law more certain. It has been a scandal that the law has been so uncertain in the matter that in one case presumption of dedication has arisen from 18 months user, and in another case it was stated that more than 1,100 years would have to be proved in order to presume dedication. I ask the House to give a Second Reading to the Bill.

Question put, and agreed to.

Bill read a Second time, and committed to a Standing Committee.