HC Deb 21 April 1959 vol 604 cc306-11
Mr. A. Blenkinsop (Newcastle-upon-Tyne, East)

I beg to move, in page 30, line 38, to leave out subsection (2).

I am sorry if I am introducing a difficult note into this kindly atmosphere, but the very few Amendments which I have put down do not appear to me as a layman to introduce any really new matter or to make any change of real substance to the Bill. Indeed, I have avoided putting down any Amendment which would appear to do that.

Mr. C. R. Hobson (Keighley)

On a point of order. As I understand, this is a House of Lords consolidation Measure, and all the Clauses are consolidating Clauses. If it is a consolidating Measure, ought not the House and the Committee to have been told whether there is a certificate to that effect?

The Temporary Chairman (Mr. James MacColl)

This is not purely a consolidating Measure, but includes some amendments to the law. Therefore, this is in order.

Mr. Blenkinsop

I am hoping that the Joint Parliamentary Secretary will agree with me that this Amendment is not a change of any real substance, although it could bring very great relief to many amenity bodies which are concerned with the position as it is.

It was, as I understand, the desire that the Rights of Way Act, which originally made the provision relating to the dedication of highways, should somewhat ease the common law position and make it simpler. Instead of that it has been found, only quite recently in the courts, that it has made it rather more cumbrous and difficult for those who wish to establish rights of way.

None of us is suggesting that there should be any change in the period to establish user, the period of twenty years, which has to be proved to establish a right of way under this Clause. What we are concerned about is the way in which the twenty years should be calculated. The twenty years must be calculated retrospectively from the date on which the right is brought into question. Quite often, as has been shown in recent years, although it can be proved that the plain right of way has been in use for twenty years or more, because it cannot be proved up to the actual moment at which the right is brought into question the whole claim fails.

There was an example quite recently, in the Rothschild case in 1957, and there have been subsequent cases also, where there was an established right of user right up to the recent war, up to 1939, or rather more recently, but then there was a break, for the simple reason that the land over which the path went was requisitioned, and so there was denial in that way of user. The effect of that breach of the period makes it quite impossible for anyone to establish the necessary qualification which is required under this subsection.

I do not believe that it was ever intended that the law should operate in this way. It has ruled out the use of many paths over land requisitioned during the war or since. It is felt by those who wish to preserve rights of way that this opportunity should be taken to delete this subsection, so that rights of way may be preserved where that is reasonably possible without hardship. This Amendment is merely trying to give effect to what was understood to be the position until it was challenged relatively recently in the courts.

I feel that the Joint Parliamentary Secretary should consider it in that light, and not take the view which, perhaps inevitably, the Reading Committee had to take when it was considering the matter, that this was beyond its powers. We, in this Committee, are in a slightly different situation, and I ask the Joint Parliamentary Secretary to give the matter consideration even if he cannot accept the Amendment straight away. If he would accept it he would earn the very great good will of the many bodies concerned and would establish what was thought to be the law on the matter.

Mr. Nugent

I listened with interest and care to the plea put so persuasively by the hon. Member for Newcastle-upon-Tyne, East (Mr. Blenkinsop), and I sympathise with his wish to keep open footpaths wherever possible. Like him, I much enjoy country walks, and I certainly appreciate that one cannot take much pleasure in a country walk on the roads nowadays; unless one can use footpaths one will be lucky to return home safely.

I fear, nevertheless, that I shall have to give to him the reply, which was given to the Commons, Open Spaces, and Footpaths Preservation Society by the Reading Committee, which is referred to in paragraph 31 of its Report, where it says that the society thought however, and rightly, that we would regard this as an amendment of too substantial a nature to be effected by a Bill which is primarily a measure of consolidation. I am afraid that the hon. Member's plea that this was understood to be the law until recently and the Rothschild case cannot help me to look on this as an Amendment other than of substance which would affect a number of other interests, which, of course, have not been consulted in this matter at all by us. That means that the only course I can possibly follow now at this Box must be to accept the advice of the expert Committee which has taken such pains to make this, although not completely in form a consolidation Measure, nevertheless in principle a consolidation Measure, and I must advise the Committee not to accept the Amendment, whatever merits it may have.

Mr. A. J. Irvine (Liverpool, Edge Hill)

The Amendment undoubtedly serves to draw attention to the difficulties attaching to the procedure through which the Bill is going. The Parliamentary Secretary was quite right in saying that I had commended the Bill. I had the privilege of serving upon the Reading Committee, and the Bill is a product of the work of those on that Committee. It is, therefore, at least not illogical for me to recommend it as a Measure. In doing so, however, I wish to make it clear that difficulties attach to the procedure involved.

If the question covered by my hon. Friend's Amendment had come before the Reading Committee when I was serving on it I would have had no doubt that it raised an issue which was outside the terms of reference of that Committee. Indeed, that was the opinion put forward by the Committee in regard to this type of problem. The fact remains that the Bill now comes before us in the same colour and character as any other Bill. It has no certificate as a consolidation Measure. It is for that reason that you called the Amendment, Mr. MacColl, and it is for that reason that the Amendment is in order. That being so, how reasonable is it for the Parliamentary Secretary to say that having regard to the nature of the Measure he can only answer "No"? There is some inescapable flaw in this procedure and the way in which the problem is being dealt with.

Being no longer bound by the strict terms of reference which formerly circumscribed my inquiries, I turn to the issue raised by my hon. Friend. I favour the amendment of the law which he proposes. I would draw the attention of the Committee to the fact that when we want to establish that a right of way has been created under law, although we may be able to prove to those who require proof that there has been an uninterrupted user for a period of twenty years, two or three years previously an inquiry has been raised in a local newspaper questioning the existence of the right of way. Under the existing law, the period of twenty years must be measured from the date of the letter in the Press and it may be that efforts to establish the existence of the right of way are stultified by the fact that evidence relevant to the most recent period of two or three years cannot be provided.

The Amendment constitutes an improvement in the law. I concede that there is a difficulty, in that the matter arises in this context, and I think my hon. Friend recognises that fact. The Amendment raises a question of substance, and it is being considered by the Committee in the context of what is, from 99 points of view out of 100, a consolidation Measure. It must be for the Committee to determine the appropriate way of dealing with the matter, and I wish only to point out the character of the difficulties which arise and to indicate to the Committee that, taken on its merits, the Amendment has my support

8.15 p.m.

Mr. Blenkinsop

It would at least give me some satisfaction if the Parliamentary Secretary would move a little way from the formal words he has used up to now and say that he welcomes the proposal and realises that it is a modest one. I do not desire to do anything to ruin the possibility of a speedy passage of the Bill, but it would be some satisfaction if the hon. Member would undertake to consider the matter in order to see how best it could be dealt with. I can assure him that it is giving anxiety to many people.

Mr. Nugent

I want to be as helpful as I can to the Committee in the rather difficult position in which I find myself. The only ground upon which I can stand is the advice of the Reading Committee Report. I accept the adroit position which has been taken up by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine), in saying that in the context of making the Report he considered the matter brought before him within the very limited terms of reference in which the Committee had to consider these matters, but that it is now open to the Committee to consider any Amendment it wishes to consider, since the Bill is going through the House as an ordinary piece of legislation.

In order to maintain the difficult balance of the situation when everyone, by common consent, has observed a self-denying ordinance; when the local authority interests and the other massive interests concerned with highways have, one and all, refrained from making the representations they might have made, because they feel, as we pointed out in the Second Reading debate, that although the Measure makes none of the Amendments which we should all like to see it nevertheless does a useful piece of work in bringing together the mass of legislation which is now enacted in about seventy different Measures, we thought it worth while proceeding in this rather unusual way and observing this uncomfortable self-denying ordinance.

Although I have to give a negative answer to the hon. Member, I would not like to leave the impression that I do not think his suggestion has any merit. I sympathise with the object of the Amendment. I will see that it is taken note of, and I hope that in the not too distant future it will be possible for the Government of the day to make major amending highway legislation which will include this proposal. Many Amendments require to be made in this legislation, and I will certainly see that this proposal is considered when fresh legislation is in mind.

Mr. Blenkinsop

The Joint Parliamentary Secretary refers to "major legislation ", but I regard the Amendment as a very minor one. I should merely like the Minister to say that he is prepared to slip through quickly some of the minor points which tread on the corns of many people.

Mr. Nugent

I am afraid that I cannot hold out any prospect of separate legislation to meet the hon. Member's point, much as I would like to help him. I cannot go further than I have, which is to say that I shall certainly record the fact that this point should be included in new legislation.

Mr. Ede

What we have just heard confirms my worst suspicions when I protested earlier about the way in which the Measure has been compiled and put in front of us. I express my hearty congratulations to my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) for having so clearly exposed this racket.

Mr. Blenkinsop

In order at least to prick the conscience of the Joint Parliamentary Secretary into taking further action, and in the hope that his words will bear as early fruit as possible, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clauses 35 to 39 ordered to stand part of the Bill.