§ 10.5 p.m.
§ Mr. I. Enoch Powell (Wolverhampton, South-West)
I beg to move,That an humble Address be presented to Her Majesty, praying that the Pedestrian Crossings (London) (Amendment) Regulations, 1952 (S.I., 1952, No. 421), dated 4th March, 1952, a copy of which was laid before this House on 6th March, be annulled.I would suggest that I be permitted at the same time to refer to the contents of the next Motion on the Order Paper,That an humble Address be presented to Her Majesty, praying that the Pedestrian Crossings (General) (Amendment) Regulations, 1952 (S.I., 1952, No. 420), dated 4th March, 1952, a copy of which was laid before this House on 6th March, be annulled.The point on both Motions is the same.
If I may do that, I should like to begin by making it clear that I am not moving this Motion in regard to the subject matter either of the principal Regulations or of these Regulations, which amend them. The purpose of these amending Regulations is to ensure that a factor which has hitherto impeded prosecutions in connection with pedestrian crossings—perhaps better known as zebra crossings—shall be removed.
Hitherto it has been necessary, for a prosecution to succeed, to show that the pedestrian crossing in question conformed exactly to the specifications laid down in the principal Regulations. If there were the smallest variation in the actual crossing from the prescribed size and layout of the pedestrian crossing, then the prosecution was liable to fail; and this has in many cases occurred. The effect of the Regulations which the Minister has laid is to provide that where the crossing substantially conforms with the principal Regulations, there, in that case, those Regulations shall be deemed to have been complied with.
To that easement I raise no objection; but another change is made by these Regulations in the form of the principal Regulations. The principal Regulations prescribed the appropriate width for a pedestrian crossing. Now the amendment which is made by these Regulations is to insert an exception in these words:… except where the Minister otherwise authorises in the case of any particular crossing.165 In other words, the Minister is given the power to authorise exceptions from the layout and specifications for a pedestrian crossing which are laid down in the Regulations; and these exceptions are in addition to the general proviso that very minor deviations may be disregarded.
The Select Committee on Statutory Instruments, when it considered this Regulation, inquired of the Minister in what form he intended to make this authorisation when he wished to constitute an exception. We learn from the Fourth Report of the Committee, which was presented to the House on 31st March, that the authorisation willnot be by way of Statutory Instrument but should consist of a written authority to a named local authority to establishcrossings of particular sizes which vary from those laid down in the principal Regulations.
Thus the Minister has made it quite clear that this authorisation will not be by Statutory Instrument but will be by a private written communication from himself to a local authority. It is upon that point that I wish to secure a reply from my hon. Friend. This form of Ministerial authorisation raises a most important question of principle, however minor may be the actual matter in connection with which it arises.
The point of principle can be made most clear by reference to a celebrated case in 1947, that of Blackpool Corporation v. Locker. That was a case in which a requisition by a local authority was made in pursuance of powers delegated to that local authority by a Minister in a private communication. I should like to trouble the House with a few sentences from the judgment of Lord Justice Scott when the matter was brought before the Court of Appeal in November and December, 1947.
The learned judge said:The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests. … That maxim applies in legal theory just as much to written as to unwritten law, i.e., to statutory law as much as to common law or equity, but the very justification for that basic maxim is that the whole of our law, written or unwritten, is accessible to the public—in the sense, of course, that, at any rate, its legal advisers have access to it at any moment as of right.166 Then the learned judge, referring later to delegated legislation, says that the citizen:… is bound by the terms of the delegated legislation, but … at least knows or his lawyers can tell him just what his rights and duties and restrictions are under the new law because each kind of statutory law is at once published by the King's printer, whether as Acts of Parliament or as statutory instruments.Here we have what is really a parallel case. We have a Statutory Instrument, the Regulations against which I am moving the Motion, laid before the House and therefore subject to negative Parliamentary procedure. But we have further sub-delegated legislation under those Regulations which is not being exercised in a public manner but in a private manner merely by a written communication from the Minister to a local authority.
Therefore, it seems to me that this aspect of these Regulations falls under the condemnation of the learned judge in the case to which I referred. It is another case where sub-delegated legislation is withdrawn from public knowledge and thereby violates the basic principle that the written law, the statute law, ought to be knowable by the citizen who is bound by it.
As the judge said:… for delegated legislation made under powers conferred by a regulation"—this is the case in point—or other legislative instrument not being itself an act of Parliament there is no general statutory requirement of publicity in force today.It may be said that the effect upon the citizen of the sub-delegated legislation which we have here is less serious than in the case of 1947. There a citizen was being deprived of the use of his property by a legislative act of which he could have no knowledge. What is happening here is merely that a modification is being made in the statutory requirements.
Nevertheless, I submit that it is a serious matter. Hitherto persons prosecuted have been able to plead in their defence, and to plead successfully, that the pedestrian crossing in connection with which they have been prosecuted has not been properly constituted. Now by sub-delegated legislation, by a private communication of the Minister to a local authority, it is possible for an 167 apparently unauthorised or improper pedestrian crossing to be made a proper one.
In fact, it is impossible now for a private citizen to know whether or not a given pedestrian crossing is one which he is or is not obliged to respect. I hope that the narrow scope of the authorisation in this Regulation will not prevent my hon. Friend from recognising the importance of the principle which is at stake, the principle that the law by which a citizen is bound ought to be within his knowledge or the knowledge of his legal advisers, that there may be public access to it.
I hope my hon. Friend will be able to say either that this defect will be removed under an amending regulation, or at any rate, that in exercising his powers under the Regulations he and the Minister will always give publicity to his authorisation either by making a Statutory Instrument or by other means. I hope I can rely on the sympathy of my hon. Friend. Indeed, I feel that had the date of this Motion been six months earlier he would have been making the speech instead of me—except, of course, that he would have been making it with so much greater urbanity, wit and eloquence. Nevertheless, imperfectly as I have placed the matter before him, I commend it to his understanding and his sympathy.
§ 10.16 p.m.
§ Sir Herbert Williams (Croydon, East)
I beg to second the Motion.
I have to declare a negative interest, because this kind of thing cost me 10 guineas in August, 1944. I was prosecuted at Arundel Police Court for disobeying a non-published Statutory Instrument. It was made by the Regional Commissioner, but it had never been properly published. As a sequel to that there was inserted in the Statutory Instruments Act, 1946, a subsection which provided that, in cases similar to that in which I was involved and where the matter was not of such general interests as to enable the publication by the Stationery Office of the Instrument, there must be appropriate local advertising.
I am inclined to think that these Amendments are in conflict with that 168 Act, because it lays down the procedure for these cases. Where there is a local application as distinct from a general application arrangements have to be made whereby an advertisement would be appropriately inserted in a publication covering the district affected.
By being fined 10 guineas I have done enough in the public interest to draw attention to this matter. Although I gave notice that I would appeal, because I thought that if my case had been tried by a more exalted bench than the five local magistrates who dealt with it in the lower court, I should have got away with it, I did not take the matter to appeal. However, the law was altered as a result of my experience. I do not think the law is being carried out here. I strongly support the case put by my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell).
§ 10.18 p.m.
§ Mr. John Hay (Henley)
I want to support the point of view put by my hon. Friends the Members for Wolverhampton, South-West (Mr. Powell) and Croydon, East (Sir H. Williams). As my hon. Friend the Member for Wolverhampton, South-West said, this is a matter of principle. I know that the Parliamentary Secretary is as keen and as anxious as anyone else in this House to see that nothing will be done by his Ministry, whether by means of this or a similar Regulation or in any other way, which will in any way affect the important principle of law which is involved here.
I fully support the points already made, but I want to take a slightly different point. First, I fully appreciate, as I am certain everyone does, the difficulty that the Ministry of Transport are facing in this matter. These Regulations were made in connection with the system of pedestrian crossings which has been in operation since 1934. On the whole the Ministry has been very successful in the new system of zebra crossings, which have gained a great deal of support from the public. I hope they will contribute something towards reducing the toll of death on the roads.
There is the difficulty that the original Regulation, which the Regulation against which which we are praying tonight amends, lays down with the utmost 169 particularity the requirements of each pedestrian crossing. It soon became apparent in a number of cases that where some local authority had by chance not complied exactly with the original requirements of the Statutory Instrument, a prosecution was bound to fail.
The difficulty that my hon. Friend and his Ministry are obviously in is how to give a certain amount of latitude and leeway to local authorities where local and special circumstances arise which make it difficult to comply precisely with the terms of the original Regulation. I am wondering exactly how they will give that latitude.
As my hon. Friend the Member for Wolverhampton, South-West said, the words:Except where the Minister otherwise authorises in the case of any particular crossing …give an extraordinarily wide power to the Ministry of Transport. There is nothing whatever in Statutory Instrument No. 421 or in the Statutory Instrument No. 420 which shows exactly how this authorisation is to be given by the Minister, and I am wondering how it will be done.
Had there been a paragraph explaining the method by which an authorisation was to be given, we should have been a little clearer but, as the Regulation stands, we are in the dark. So I earnestly suggest to my hon. Friend that he looks at this matter once more, and that when, as he obviously will have to do, he introduces a further Regulation to amend the general Regulations, that point should be considered and some specific reference made in the amending Regulation showing what sort of authorisation should be given; also what publicity can be given, in the public interest to the authorisation which he proposes to give to local authorities; and, generally, that he will take into account the point raised by my hon. Friend.
There is one other more practical point which I will make quite shortly. As a matter of experience I am asking my hon. Friend to look again at the provisions of the original Instrument which deal with the question of marking the carriageway and the pavement with a specific sign at a distance from the pedestrian crossing, with the proviso that 170 no traffic shall stop or otherwise park in any way between that sign and the crossing.
Part of the amending Regulations which are being prayed against tonight exempts bicycles from that provision. Up to now it has been the case that anybody who dared to leave a bicycle standing against the kerb between the sign marked in yellow paint against the kerbstone and the line of studs was committing an offence. The Regulations exempt bicycles, whether mechanically propelled or not, from that provision.
I ask my hon. Friend to look at this point carefully. Speaking as a motorist, I am not certain even now that motorists fully appreciate the requirement of the law. The fact is that if one dares to park a motor car between the sign and the line of studs, one commits an offence. One of the reasons why people are leaving their cars in that position, and thereby blocking the view of an oncoming motorist from seeing pedestrians coming from the pavement over the crossing, is that unless they know where the sign is, they cannot tell whether or not they are committing an offence.
I have always thought that these signs can be easily obscured by dirt, mud or rain. The yellow paint is not permanent, it is not easily seen and it easily wears away. I hope, therefore, that consideration will be given to making a more prominent mark which will indicate to motorists the distance—I think it is 40 feet—within which they are not allowed to park. Generally, the most important point is that already made by my hon. Friends, and I strongly support the Motion.
§ 10.25 p.m.
The Parliamentary Secretary to the Ministry of Transport (Mr. Gurney Braithwaite)
The House should always be grateful to any hon. Members who exercise the gift of scrutiny of delegated legislation of any kind. My hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) was kind enough to say that in another incarnation I used to take some interest in these matters and that had the Prayer been put down six months ago, I should have been supporting it with what, I think, he was good enough to call my "usual urbanity." Of course, that is not the case, because six 171 months ago my hon. Friend, myself and all other hon. Members were engaged upon the hustings, where our oratory was apt to be of a somewhat different character. Suffice it to say that we have all got here, which is the acid test on those occasions.
On this rather narrow point I might be ruled out of order if I were to deal with the broken promises of the late Government to which the hon. Gentleman calls my attention.
The two sets of Regulations which are being prayed against are, for practical purposes, identical, as my hon. Friend indicated, and they were tabled to amend those which came into operation on 31st October last and which introduced what are popularly known as zebra crossings.
The House may recall that on 21st February last, the hon. Member for Keighley (Mr. Hobson), when he obtained the Adjournment on the general topic of road casualties, called attention, among other points which he then raised, to the unsatisfactory operation of these Regulations. Replying then, I promised the House that new Regulations would shortly be laid. This was done on 6th March, and the main changes were concerned with the marking of these crossings.
The effect is, as was pointed out by my hon. Friend the Member for Wolverhampton South-West, in moving the Motion, that if a crossing does not comply strictly with the provisions of the Regulations about the layout of the lines of studs or about black and white striping, the crossing will still be valid provided that the general appearance of the lines of studs and the black and white stripes is not materially impaired. In addition, the first stripe at each side of an uncontrolled crossing is no longer required to be black.
The stern necessity for this amendment was thrown into sharp relief following an unsuccessful prosecution in a magistrates' court at Bristol, in my constituency, on 1st February. The result of the case, which obtained wide publicity, made it 172 quite clear that greater tolerance was required in the prescribed markings, if I may give one example, to cater for unusual shapes of street which are caused by bell-mouthed junctions.
The other changes—one of these was referred to by my hon. Friend the Member for Henley (Mr. Hay)—are that bicycles, whether or not mechanically propelled, which are not fitted with sidecars, are exempted from the restrictions which may be imposed under the Regulations on vehicles waiting on the approaches to a crossing. It is also expressly provided that these restrictions do not apply to vehicles which are stopping to give precedence to pedestrians using a crossing; and secondly, that the Minister is given power under the amending Regulations to authorise, in particular cases, crossings more than 16 ft. or less than 8 ft. wide.
Here is the bone of contention, small though I believe it to be, as I hope to convince my hon. Friend. The Select Committee on Statutory Instruments have reported on the Pedestrian Crossing (Amendment) Regulations, drawing the special attention of the House of Commons to themon the grounds that they appear to make unusual or unexpected use of the powers conferred by the Statute.Before making this Report to us the Select Committee had observed that under Regulation 2 (2) of each set of these amending Regulations now before us, the Minister was given power to authorise deviation from the Regulations and that it was not clear whether this authorisation was to be by Statutory Instrument or otherwise. The Select Committee asked for an Explanatory Memorandum, which we provided, and which is given as an appendix on pages 3 and 4 of the Report, which hon. Members doubtless have in their hands.
I claim, on behalf of the Explanatory Memorandum, that it does explain, which is not always the case, and puts the case with admirable clarity. The Committee have not stated exactly what is their objection, but I think that probably they consider that as Section 18 of the Road Traffic Act, 1934, under which the original pedestrian crossings were laid down, gives the Minister power to prescribe the marking of crossings, in Regulations which have to be laid before Parliament, he 173 should not be given the power to alter them without the authority of Parliament. To use a vulgarism, that seems to be the rub of the matter.
In the wording of Section 18 (2) of the Road Traffic Act, 1934—hon. Members who were here at the time may remember that there was considerable discussion about this when the Act was passing through the House—the Minister's powers under the Section are extremely wide. For instance, it empowers the Ministerto make regulations … with respect to the indication of the limits of a crossing by marks on the roadway or otherwise.One could hardly go wider than that.
This does not mean that the Minister need necessarily prescribe the limits of crossings in Regulations at all. It would, for instance, be quite possible legally, if considered desirable in this particular matter we are discussing, to provide for a system which would require the site of any individual crossing to be approved by an inspector or divisional road engineer and for them to say how the limits were to be indicated. Had that been the course of action taken by the Minister, no complaint could have been made under the 1934 Act.
My hon. Friend quoted a case, with which I must immediately confess I am not familiar—a Blackpool local government matter, I think, not a transport affair, but something to do with requisitioning of property under which the Minister acted on a letter sent to the local authority—presumably not a private letter but one available at the town hall for inspection—
§ Mr. Powell
I cited the case because it is a fairly well-known example of the effects of sub-delegated legislation, and to enable me to quote the judgment of the learned judge in that case. But in that instance the local authority declined to communicate to the public the contents of the Minister's authority to them.
My hon. Friend will excuse me if I do not know about that. Under the 1934 Act that procedure would not be necessary at all; the inspector or divisional road engineer could lay down the crossing and there is no question of the public being excluded from knowledge of the crossing as it is there for all to see.
174 I now come to the main point of this matter, and I hope I shall have the sympathy of all hon. Members who rightly raised this question when I say that the Minister considers that it is better to give general guidance and achieve reasonable uniformity throughout the country by laying down in wide, but not too wide, terms the method by which these crossings should be indicated. Those travelling from town to town would be the first to tell us, if we could question them, the advantage of having zebra crossings throughout the country of a general uniform standard.
The Regulation which came into operation on 31st October was found to be too tightly and narrowly drawn. I do not want to make any party point about that; the scheme was in an experimental stage, and there had to be weeks and months of trial and error. But, I think that had the right hon. Member for East Ham, South (Mr. Barnes) still been at the Ministry of Transport, he would have acted very much as we have acted in the light of experience.
These amending Regulations relax the original ones, but so as not to relax them, perhaps one might say, unnecessarily, Regulation 2 (2) of the new Regulations says in effect that only where the Minister authorises it shall a particular crossing be less than 8 feet or more than 16 feet wide. We ought to be very careful about this, because this is a matter of importance, but with the greatest respect, I submit that the effect of this limiting provision is not to derogate from the principle of Parliamentary control, nor to place excessive powers in the hands of the Minister, but rather to prevent unnecessary eccentricities; I think that that is the word. We do not want them in crossings, for it would militate against the reasonable uniformity to which I referred a few moments ago.
Thus, while it is always open to this House to reject any Regulations made under this Section by the Minister, there is not, so it seems to us, anything illegal or constitutionally improper in the amending Regulations. They might well have been so drawn as to have allowed for width, in general, to be 25 or 30 feet; but we do not want these very wide crossings laid down except in particularly unusual circumstances.
175 Such circumstances do exist in a very limited number of cases. There is one such spot which we have in mind at Lewisham High Street. Here, especially at certain times of the day, very large numbers of pedestrians cross the road and are shepherded on to the zebra crossing by guard rails on the pavement on each side of it. The local authority has asked the Minister for a specially wide crossing with the agreement and concurrence of both the police and the divisional road engineer.
That is a case of variation for which we seek to provide, and I would assure my hon. Friends who have moved and seconded this Motion, and who have properly concerned themselves with legal and constitutional points connected with one small provision of the amending Regulations, we have no desire to take advantage of a loophole in a Statutory Instrument.
I think I must, however, make this point. The House will have noted, indeed perhaps with satisfaction because there was a good deal of controversy in the early days of the zebra crossings, that the amending Regulations have been received, so far as we can judge, without objection or protest. I think that they have succeeded in attracting general approval, and it is accepted that they are really concerned with safety of life.
I do not want to make too much of the fact, but there may be some significance in the welcome drop which the road casualties for February have shown. It is the first for many months, and it would be a bold and unwise man who would say that this is a direct result of the introduction of the zebra crossings or of the amending Regulations. But, we have heard much less about the difficulties affecting these crossings since the Regulations were laid.
It is surely the object of all members, wherever they sit in the House—to provide a crossing that in general appearance is recognisable as such and that will be respected by motorists and others. In this connection, meticulous measurements are of no importance. I would, however, repeat, that we are still to some extent in an experimental stage. The last word on this subject, of course, has not been said.
176 I have taken a careful note, for instance, of the point raised by my hon. Friend, the Member for Henley, which will certainly be looked at and studied with the care it deserves. I hope that the House, however, will feel that no constitutional indecency has been committed and will feel able to allow these amending Regulations to stand.
Of course, one very useful piece of machinery consists of the Road Safety Committee. The siting of crossings is agreed between the divisional road engineer and the borough surveyor. I am sure my hon. Friend is familiar with the way these things arise: if there is agreement, probably nothing is heard of the matter.
It is when there is disagreement that local councils and elected representatives of the people become vocal; hon. Members then get in their postbags letters from local authorities and others complaining of the removal of pedestrian crossings here and there. There was great difficulty about them outside the schools for a long time until the system of road patrols became more accepted and was realised to be a better system than others. The reply I must give at this stage is that where there is no controversy there is likely to be no publicity; where there is controversy, it will be made known through the local authority.
§ Mr. Powell
I am obliged for the very full reply, and am sure that every Member will have been glad to hear what the Parliamentary Secretary has said about the fall in the casualty statistics.
I confess I am a little disappointed that my hon. Friend did not seem to be worried about the lack of publicity that would be given to the authorisation. When he referred to the procedure under Section 18 of the 1934 Act and to the fact that the Regulations under that Act could be very wide and loose indeed, he failed to note the point that these Regulations would be laid, and that the House would have an opportunity of criticising the form in which they were made.
177 The whole gravamen of this Motion is that no publicity, apparently, is in the ordinary course to be given to this authorisation. It is true that in many cases there will have been discussion locally beforehand; and my hon. Friend went on to say that if there is agreement with the borough engineer and the local authority, then nothing will be heard of the matter. But the public ought to hear of it.
I feel that this debate has apprised my hon. Friend of the anxiety that is naturally felt about any authorisation, binding the public, which is not automatically brought to their attention. In view of that, I beg to ask leave to withdraw the Motion.
§ Motion, by leave, withdrawn.