HIGHWAYS (MISCELLANEOUS PROVISIONS) BILL

HC Deb 24 February 1961 vol 635 cc1095-137

Order for Second Reading read

12.50 p.m.

Mr. W. T. Aitken (Bury St. Edmunds)

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

I think that every hon. Member will agree that on such a vast subject as highway law there will always be some room for improvement. That applies more than ever now when, every year, more and more cars and lorries are coming on to the roads and vehicles are travelling at higher speeds. No doubt many hon. Members will have ideas for the improvement and streamlining of the existing law. I suspect that my right hon. Friend the Minister of Transport probably gets more free advice than even the Chancellor of the Exchequer.

The Bill is a modest attempt to do some of the things that highway authorities have for a long time been discussing and agree, are very necessary. I believe that the Bill can be of real value to highway authorities at this time. Those Who have taken part in the drafting of the Bill have sought, within the limitations and, indeed, the hazards of private Members' legislation, to include a number of Amendments to the Highways Act, 1959. Most of these were mentioned and discussed in the Highway Law Consolidation Committee which was set up in 1959. Many things were discussed there, but, unfortunately, the Highways Act, 1959. being a consolidation Measure, the terms of reference of the Highway Law Consolidation Committee inhibited the Committee from introducing many desirable amendments to the law.

The genesis of the Bill is the Report of the Highways Consolidation Committee. We have been very careful not to include anything particularly controversial in the Bill and, with the exception of Clauses 1 and 2, the whole of the Bill has a "road safety intent". I am sure that hon. Members will agree that any proposals which will assist highway authorities, and especially local highway authorities, to take action Which will cut down accidents and minimise their severity will meet with general approval.

Before I discuss same of the Clauses of the Bill, I point out that it is for the benefit of all highway authorities including the Ministry of Transport which, as we know, is responsible for trunk roads and motorways.

I have never understood why, in drafting a Bill, sometimes its least important provisions have to be put first. Clause 1 for example is quite a minor Amendment of Section 46 of the Highways Act, 1959. It enables county councils, where it is convenient, to contribute to the expenses of parish councils in the exercise of their concurrent powers to maintain and repaid public footpaths and bridleways which are maintainable at public expense. The powers to make such contributions are purely discretionary but they would be useful. It is easy to visualise situations where it would be more convenient, and probably less expensive, for the local highway authority to pay the parish councils for doing this work instead of doing it themselves.

Clause 2 is a slight amplification of the present powers of a highway authority to plant and protect trees and shrubs on the verges of highways and to lay out grass verges. It is interesting that, although in a Ministry of Housing and Local Government circular every possible encouragement is given to a local authority and the private developer to stimulate the creation of these sort of amenities on highways, estates, etc., under the present law a highway authority, even if it takes over a road with these amenities developed on it by private enterprise, cannot itself maintain them because it did not plant the trees and verges.

There are quite a number of privately-owned housing estates which, as a result of encouragement given by local authorities, have done quite a good job of creating attractive amenities along the sides of roads but, under existing law, the highway authority cannot deal with these once it has taken over the road. Many highway authorities, however, get over that by using their maintenance staffs to do it, but that is not a satisfactory situation. If this Bill encourages, or rather does not discourage, builders of private estates to proceed with the development of such amenities, they will probably be more willing to do so. A good deal of the maintenance work could be done from the resources of local parish councils within whose boundaries such estates are situated but, again, under the present law they cannot be reimbursed for doing so.

Clause 3 is quite an important Clause with regard to road safety. It is concerned with the piping and drainage of open roadside ditches which otherwise form a very dangerous hazard. Hon. Members who live in rural areas are only too aware of the dangers of ditches, especially on curves, in wet or foggy weather and when it is dark. This Clause supplements the powers conferred on local authorities by Section 67 of the Highways Act, 1835, re-enacted in Section 103 of the 1959 Act. Local authorities cannot fill in these ditches without the consent of the owners. Mostly, the owners are willing for the work to be done, but there are occasions when, for some reason best known to themselves, the owners will not give their consent. There have been a lot of accidents.

Many hon. Members will know of examples of such accidents where somebody comes round a curve, skids or does not appreciate the angle of the curve and goes into the ditch. In Northamptonshire, some years ago, along a certain stretch of road with a sudden curve, there was a series of accidents, some of which were fatal. The county council, with the consent of the owner, filled in the ditch, and there was a startling drop in the incidence of accidents. There will always be accidents because some motorists take curves too quickly, but in the case I have quoted the drop, not only in the incidence of accidents but in the number of fatalities, was quite remarkable.

I am sure that the highway authorities will always ask the consent of the owner but, in cases where they cannot get it, this Clause gives them an opportunity to carry out the necessary safety measures. At the same time, the owner is protected from any consequential damage and his drainage rights are completely preserved.

Clause 4 is an important addition to the penalty provisions of Section 117 of the 1959 Act. Under the present law if anybody puts on his own land an object or device for guidance or direction or some arresting signal of some kind, the local authority can give him notice to move it, and if he fails to comply it can remove it itself. If, on the other hand, somebody paints something on the road this can be quite as distracting as something on the side of the road. I have somewhat mixed feelings about this, because I remember in a recent electoral contest somebody painted on the road in big blue letters. "Vote Conservative". Whether he took counsel's advice on the legality or not, I do not know. At any rate, the effect was nullified the next morning by the word "Don't" having been added, strangely enough, in bright red letters, so whatever electoral advantage there may have been for me in painting that admirable slogan was soon nullified by someone else's action.

Under the law as it at present stands, one can paint almost anything one likes on a road. A person can put "No parking" outside his house, or anyone can paint rude remarks about individuals, institutions, political parties, or anything he cares to choose, and all the local authority can do is obliterate it. Quite apart from the inconvenience of having to obliterate any such signs painted on the road, the signs themselves can be very dangerous indeed as a distraction. The Clause, therefore, is designed to add a little extra power to the existing law.

Clause 5, again, is a safety measure. It is designed to supplement the existing powers under Section 128 of the 1959 Act by speeding up the procedure whereby local authorities can secure the removal of something left in the road. This could be quite important because very often, in narrow, dangerous roads, objects are left which could serious accidents. The Clause does no more than make possible a speedier application of powers which already exist. In other words, the local highway authority will be enabled to take action at once to deal with the obstruction. The fact that this is a necessary improvement of the existing law is proved, I think, by the very large number of local Acts which have been introduced from time to time to speed up this procedure for removing things left on the roads which are dangerous to highway users.

Clause 6 also is an important safety measure. It deals with obstructions such as trees and so forth which have fallen on the roads. It is designed to make the existing procedure much more effective than it is now. Highway authorities already have power to remove these things, but the object of the Clause is, first, to enable the highway authority to light and fence any such obstruction and, if that should prove impracticable, to remove it immediately if it is a dangerous hazard, and, secondly, to give the authority power to recover any reasonable expense incurred in taking that kind of action.

The principle that anyone who owns a tree, mud bank or something which is a potential danger to people using a nearby highway should, if the potential danger becomes a reality, be made to pay the cost of removal is, I think, generally accepted. It has been clearly established by Parliament in many local Acts, and I believe that the further provision which I propose here would make a valuable contribution to the reduction of accidents especially in places where alongside narrow roads there are many trees or obstructions which can cause hazards to present-day increasing traffic.

Clause 7 deals with dead, diseased or insecure trees. This is also very much in the interests of road safety. The Clause follows a specific recommendation of the Highway Law Consolidation Committee. The effect of it will be to add to the appropriate authorities' existing power to give fourteen days' notice to anyone who has a tree leaning over a road which is dead or diseased, and to give them power to deal not only with trees which are just leaning over a road but with anything which they have reason to believe is insecure or appears to be so. This is, perhaps, one Clause which may look controversial, but it is obviously necessary to give local highway authorities power to deal with potential hazards of this kind. Of course, the owner would have the right, as he has already in the existing law, to appeal to the magistrates' court if he has any doubt about the right or necessity of such action on the part of the local highway authority.

Clause 8 deals with the adjustment of boundaries to highways. Anyone who lives in the countryside cannot fail to notice the number of occasions when roads are being straightened. In my own constituency there are many winding roads which are very dangerous, and the local highway authority is now setting about straightening the roads and making the curves less dangerous. It is quite obvious that there is a very great wastage of land going on. I have received a number of letters about this on various occasions.

This is a very difficult problem for local authorities because the maxim "Once a highway, always a highway" has the effect of preventing a highway authority from making any kind of common-sense mutual arrangement with the local land owner which would make more suitable use of the land. Although very often the land which is out of use as a highway is quite useless to the authority, the authority cannot do anything about it under the present law. Clause 8 is intended to remove this difficulty and enable the highway authority to make a deal by exchange or in some other way with the adjoining owners to avoid this growing wastage of what is sometimes very good land.

Clause 9 contains the financial provisions. I shall not say very much about this delicate subject. I hope that my hon. Friend the Parliamentary Secretary will say that the Minister will give the Government's blessing to the Bill and will provide the Money Resolution which is needed to carry it through. Of course, any charge which does fall on public funds as a result of highway authorities exercising these additional powers will be infinitesimal compared with the £150 million odd being spent on roads today —there will probably be more next year—and I hope, therefore, that my hon. Friend will accept it, in view of the help which I think the Bill will undoubtedly give to local authorities. I have good reason to believe that the local authorities favour the Bill very much, and I hope that the House will give it a Second Reading.

1.8 p.m.

Dr. Horace King (Southampton, Itchen)

The best method of opposing a contentious Bill, I think, is to speak often and at length about it, as this side of the House has been endeavouring to demonstrate, fairly successfully, during the last few days, and the best way of supporting a contentious Bill—I am sure the Government side will agree with me —seems to be to speak as little as possible on it. If that general statement be true, it is equally true in relation to a Private Member's Bill on a Friday, a Bill which is not contentious and which is non-party, that those who support it do the best service if they speak as briefly as possible.

I support the Motion, "That the Bill be read a Second time." I speak not only as a Member of the House but on behalf of my own county council and on behalf of the County Councils' Association, both of which bodies give this Measure their wholehearted backing. Those hon. Members who know the County Councils' Association know that for a Measure of this kind to receive its commendation and support is something of very real value.

I congratulate the hon. Member for Bury St. Edmunds (Mr. Aitken) on his good fortune in the Ballot, on the excellent choice of topic on which he desires the House to legislate, and, above all, this morning, on the clear, able and pains-taking way in which he set before the House the various provisions of this good Bill.

Those of us who work with local authorities and know intimately what they do know that the highway authorities of the country do a very good job. The recent floods have shown how vital is one aspect of their work in the care of highways, and I believe that, sooner or later, the highway authorities them-selves and Parliament will have to deal with that aspect of the matter if we are to continue to have floods on the scale we experienced last year.

As the hon. Gentleman pointed out, the Bill deals largely with preventive measures in respect of another aspect of the work of the highway authorities. With the increase in the growth of traffic and the increasing dangers on the roads, it is of the utmost importance that anything we can do to strengthen the powers of highway authorities to cope swiftly with anything which may interfere with road safety should be done. As the Bill will be of great help to highway authorities and will strengthen their hand a little. and as it clears up a number of ambiguous points, it will, in its own way, be a contribution to what I am certain every hon. Member has in mind—the prevention of road accidents.

I congratulate the hon. Gentleman most sincerely on his Bill and on the excellent way in which he presented it. I hope that the House will give it a Second Reading.

1.11 p.m.

Mr. Martin McLaren (Bristol, North-West)

In following the hon. Member for Southampton, Itchen (Dr. King), may I say how pleasant it is to observe the happy note of unanimity in the House at this moment. When we look at the Bill, I think we understand Why the leading textbook on highway law, Pratt on Highways, runs to over 1,000 pages. The law on highways is very ancient, and I find it very interesting. It is deeply rooted in history, and I feel that the Bill will be extremely useful in bringing it up to date.

Perhaps a special feature of this country is the way in which old institutions become adapted to serve the needs of more modern times. Highway law developed in ancient days, when the traction power of the horse was the main form of transport. Now it has to meet the needs of a community in which it is an everyday occurrence for people to travel at speeds up to 80 m.p.h. along the roads.

The Long Title of the Bill states that it is a Bill to Make certain amendments to the law relating to highways, streets and bridges in England and Wales. The Bill contains eight substantive Clauses of a rather miscellaneous kind, all of them useful and deserving support. However, it would have been an even better Bill if it had contained one more Clause to abolish the legal defence of what is called nonfeasance Which is at present available to highway authorities.

The essence of nonfeasance is that no action will lie for damage suffered because of a highway authority's omission to perform its statutory duty to keep a highway in repair. If a highway authority carries out some repairs and does them badly, that is misfeasance and the authority can be sued. But if the authority does nothing at all, it is nonfeasance and it cannot be sued. To many people that seems to be a very illogical distinction.

May I give a simple example of how it works in each case? If a highway authority, while repairing a road, puts a heap of stones on the road and leaves the heap unlighted at night and somebody runs into the heap and injures himself, that is misfeasance and the person concerned can sue and recover damages. On the other hand, if a highway authority allows a hole to develop in a road but does nothing about it, that is nonfeasance and any action which might be brought is sure to fail.

As one may imagine, in time a detailed and complex case law has arisen distinguishing between examples of misfeasance and examples of nonfeasance. In many cases those distinctions have become rather narrow and artificial. The moral for a highway authority is that it is far cheaper for it to leave undone those things which it ought to have done rather than do those things which it ought not to have done.

This doctrine started with a case which was decided in 1466. We have, therefore, very nearly reached the quincentenary. I hope that we will not. In short, the history of the matter is that in the old days the inhabitants of a parish were bound to repair the highway. If they failed to do that the remedy was that they should be prosecuted in the criminal courts. The law remained unchanged until 1959 when that procedure of criminal prosecution was abolished in a consolidating Act passed in that year. But, as the inhabitants of a parish were not an incorporated body, it was impossible for procedural reasons to sue them in civil law in order to recover damages.

That is the historical origin of the rule. That immunity from being sued descended through the ages first to the surveyor of the highways, then to our modern highway authorities and recently even to the Minister of Transport, who is now the highway authority for trunk roads and special roads. When the Crown Proceedings Act was passed in 1947, the Treasury Solicitor was characteristically sure to put in a saving which would preserve this defence.

It is rather interesting that none of these distinctions exists in Scotland. No defence of nonfeasance exists there and no harmful consequences have resulted. As a member of my clan, I give that as an example of how in some matters the Scottish law is perhaps better than the English. In 1939 the Alness Committee on Road Safety addressed itself to this point and recommended that the law of England should be brought into line with the law of Scotland. That was over twenty years ago, but no action has been taken on that recommendation.

The rule has come in for a great deal of adverse criticism by judges in the courts. There was a case in 1894 in which Lord Justice Lindley said: The law on this subject is, in my opinion, very unsatisfactory. In 1937 Mr. Justice Swift said: How long it will be allowed to continue a principle of the law of this country, I do not know; but there it is and we do not interfere with it. I hope that perhaps we may be able to interfere with it in this Bill.

The doctrine dates from days when most people used the highway on foot and others on horseback or in slow-moving horsedrawn vehicles, and the skill of roadmaking was still in its infancy. It seems to most of us quite unsuitable that it should have survived until our day, when people in cars use the roads at high speeds. There is a special case for abolishing this doctrine on the roads that carry traffic at the higher speeds, namely, the trunk roads and the special roads such as M.1. The idea of applying a doctrine of this sort to other spheres of legislation such as the factory code would be unthinkable in these days, and yet it persists in the context of the roads.

To give another example to show the absurdity of the present situation, let us imagine the case of a railway accident which is caused by a defective or even a missing railway line. Naturally, in such a case, the passengers who suffered personal injury would be able to sue the Transport Commission with complete success. There would be no question that their action would succeed. On the other hand, if a subsidence or pit were to develop on M.1 between London and Birmingham and nothing were done about it, and people with their cars fell into it, as the law stands such people would have no chance of prosecuting a successful action.

One can think of other strange anomalies. There is the case of a private forecourt on land immediately adjacent to the highway where people are allowed to pass. If that were defective, the occupier might well have to pay damages if a person were to trip up and fall. If, however, such a person were to trip or fall two or three yards away on the pavement farming part of the highway, he would have no remedy.

It is not thought that if the change which I am seeking to see introduced were to be enacted, there would be a great many claims. While there are so many accidents, most of them are caused by people driving too fast or failing to keep a proper look-out, and a relatively small number are caused by defects in the road. Nor is anybody suggesting that in all such cases the highway authority should automatically be liable to pay damages. The protection that highway authorities would still have is that there would be no liability without proof of nuisance, or negligence on their part, that is a failure to take reasonable care.

The highway authorities could surely trust the courts to apply sensible standards in trying cases of that sort. For instance, defects which on an arterial road would clearly fall short of a proper standard of maintenance might be held to be not unreasonable in a quiet country lane. If, however, a highway authority is negligent, it would be right that it should be held liable to a person who suffers damage resulting from that negligence. Indeed, I am putting forward this proposal as a modest contribution to the cause of road safety because it would encourage highway authorities to improve road conditions.

There has been a powerful memorandum from the General Council of the Bar recommending wholeheartedly that this reform in highway law should be brought about. Last Session, I introduced a Bill on those lines. It made no progress, but, at least, it attracted a leading article in The Times, in which it was said that: There is today no rhyme or reason in all this. The case for reversing it now in toto appears unanswerable. I should like to explain why it comes about that this proposal does not at present find a place in today's Bill.

I understand that in preparing the Bill, my hon. Friend the Member for Bury St. Edmund's (Mr. Aitken) received assistance from the County Councils Association. It is, perhaps, natural that local authorities should feel a little apprehensive and reluctant to give up their privileged exemption. It is rather like asking a preacher what he thinks about sin: he is bound to say that he is against it. I understand, however, that conversations are in progress on this subject between the Minister of Transport and the local authority associations. But however much one may sympathise with the viewpoint of the local authority associations, there is an interest that is higher than theirs. That is, our interest in Parliament for seeing that the law is fair and that where there is a genuine wrong, there should also be a suitable remedy.

Therefore, I support and commend the Bill. I think that it would be improved by the addition that I have ventured to suggest and I hope that when we reach Committee, it may be possible to put down a new Clause on these lines

1.27 p.m.

Mr. Patrick Wolrige-Gordon (Aberdenshire, East)

I hope that my hon. Friend the Member for Bristol, North-West (Mr. McLaren) will forgive me if I do not follow him too closely in my contribution to the debate. My hon. Friend has concentrated almost exclusively on the legal side of the matter. His knowledge is obviously extremely detailed and something that I cannot hope to emulate.

I wanted to make a few observations on what I felt to be the main purpose of the Bill, which, I understand, is to make a number of amendments to the law so as to give highway authorities additional powers in carrying out their responsibilities. The fundamental responsibility of any highway authority is to take all measures that are possible to avoid the toll of accidents that casts such a sad picture on our road scene. Therefore, any change which they, in conjunction with the local authorities, can do to avoid that is extremely valuable and important.

I wish to confine my observations on the Bill to one or two details on that point. Clause 1 enables highway authorities to contribute towards expenditure incurred in maintaining footways and bridleways. I support that Clause, particularly because if what I suggest comes into effect, as I hope that it will, the bridlepaths and sidewalks will be mudh more greatly used.

It always seems to me that one of the main reasons for accidents on the roads, particularly on main roads with only single lanes of traffic in the country, or even on those with three lanes of traffic, is obstructions on the side of the road which are either not moving or—and I think this is even more dangerous—are moving slowly. In particular, I am thinking of bicycles, which represent a genuine irritant to the motorists because of the speed at which they move and also because of the uncertainty of their course, especially when, as I think is the experience of all hon. Members, we find two or three riding abreast.

The point I want to make is that there is no reason why we should not adopt the practice which is quite common on the Continent of encouraging bicyclists to ride on the footpaths and bridleways exclusively, and even—I do not say in the centers of villages and towns—in built-up areas in which there is not too great a crowd of pedestrians on the pavement. I know, as I expect we all do, many parts of the country where we have excellent small roads running alongside major roads which are never used by anybody. It seems to me that if we can encourage cyclists to use these roads instead of keeping on the main roads we shall do a tremendous lot towards helping the motorists. I think this is one of the important causes of so many accidents on the roads today, and this suggestion would avoid the kind of irritant which so many people feel when they have to draw in or take extra care when passing cyclists.

I want to make a point about built-up areas too, because it seems to me that what we obviously need there is some kind of regulation for giving some precise indication to a cyclist when he should leave the pavement as he approaches a town. There is no doubt in my own mind that in villages and towns there are wide pavements which very often are not adequately used but which could be used by both cyclists and pedestrians together, with no sort of danger, but with a good deal of profit to the motorist.

The point I want to make is that, obviously, if there are to be accidents and collisions, they will do very much less harm to the people concerned if those accidents take place between people travelling slowly, such as pedestrians and cyclists, than those going faster, such as motorists and cyclists, or, as often happens, when a motorist is travelling behind a cyclist and the cyclist swerves, the motorist is obliged to swerve into the middle of the road to try to avoid him, which may be the very moment when another car is coming along.

I feel very strongly that in that way we need to begin to take cyclists off the main roads and put them in the same milieu as pedestrians, which could, possibly and practically, be a real contribution to the saving of life on the roads. May I again emphasise that this is not an uncommon practice? It happens to a large extent in France and in other Continental countries, in Belgium, for example, and I have often felt that there seems to be no reason at all why it should not happen here. I should like to hear if there is any other reason. Quite obviously, of course, the places where the signposts are to go and where the limits are to be set would depend on careful consideration and selection by the local authority or the highway authority concerned.

The only other point I wish to make in that connection concerns Clause 2. Here, again, when we have a road with a four-lane highway and an area between the two contrary flows of traffic, it would be a great advantage to have trees and shrubs growing there, because anything that can be provided as a shield against the lights of oncoming cars for traffic in the opposite direction would be of great value and would provide rest for the eyes of the motorists concerned. There are many places where this is done, and done extremely successfully, but again it seems to be something that we should encourage by every means in our power. I wish to bring the suggestion to the attention of my hon. Friend who is to reply, so that he might bring that policy to bear much more widely in the country as a whole.

There are other points which I should have liked to make, and I am sorry that this Bill does not relate to Scotland. We have excellent roads in Scotland, but even they can always be improved, and I had wanted to mention—

Mr. Aitken

I think it is impossible to include the suggested Amendments for Scotland of my hon. Friend, because of the very different highway laws which we have there. Indeed, the effect which they might have on the deficiency rate would make it a very complicated deal for Scotland.

Mr. Wolrige-Gordon

I am grateful to my hon. Friend. The main reason why I regret that Scotland is not included in the Bill is that there were one or two observations which I wanted to make about our road situation in Scotland, but which, I imagine, I should not be able to make and keep in order on Second Reading.

I should like to close by saying that any Bill which contributes to the safety of people on the roads or on the pavements has my wholehearted and unqualified support, and I therefore commend it to the House.

1.38 p.m

Lieut.-Commander S. L. C. Maydon (Wells)

I think that my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) is to be highly congratulated on bringing in this most desirable Measure, which is a mixture of sound commonsense, road safety measures, and, last but not least, measures to improve the appearance and the amenity value of some of our roads.

We live in an age when vast motorways seem to be the necessity for the overburden of traffic which this country has to bear, and these motorways are necessarily somewhat hideous affairs. They can, however, be greatly improved, and I think that some part of this Bill may even apply to them, though primarily, I am sure, it is directed towards the country roads, and probably the second-class country roads, which are equally ripe for improvement, particularly from the point of view of road safety.

The Bill also covers a number of other desirable features which are not directly connected with road traffic, and I particularly welcome Clause 1, which relates to footpaths and bridleways. My hon. Friend the Member for Aberdeen-shire, East (Mr. Wolrige-Gordon) mentioned such footpaths which run alongside our roads, but, of course, there are many others which go across country. They have to be maintained, and very often these days are not properly maintained !through lack of funds. These are a great amenity to the public who like to get away from the main roads and to enjoy the peace and quiet and beauty of the countryside. I particularly welcome the measures set out in Clause 1 which would improve the means of maintaining these footpaths.

The other Clause which I particularly welcome, and which I think may be far more important from the road safety angle particularly, is Clause 3 which relates to roadside ditches. My constituency in Somerset covers a mixture of highland and lowland. I say "highland"; we just about get up to 1,000 feet, but that is pretty high for that part of Somerset. A lot of it is lowland country which has to be carefully drained. Of course, these roadside ditches play a large part in that.

Many of them in what we call our central Somerset plain, which is fen country, naturally will have to remain open ditches. In that part of the country many are commonly called "rhines"—the same word as in River Rhine, which means, of course, a watercourse. There are others which can well be filled in and converted into enclosed drains rather than remain open ditches. That undoubtedly will do a great deal towards road safety because some of these country roads where there are these open ditches are exceedingly winding, and in bad weather when there is water or ice or snow on the road it is very easy to skid into one of these open ditches, resulting in considerably more damage to the vehicle and even to the persons in it than would normally happen in a skid just into a roadside bank.

On Clause 4, relating to the painting of marks on the surface of the highway, I should like to question the intention of my hon. Friend the Member for Bury St. Edmunds. Will this Clause relate to a practice which is fairly common among motor cycle clubs and even light car clubs, which hold a sort of paper-chase or rally in which the leader usually goes along unfrequented roads leaving a temporary trail which he makes with a bag of dye? It is usually a powder[...] form of dye which after a few light rain storms is washed away leaving no lasting mark, but I suppose that, strictly speaking, anybody doing that would be committing an offence under Clause 4. Strictly speaking, he is not painting, but he is making a mark on the highway, although not a permanent mark.

I think that it would be a pity to put restrictions on some of these light car and cycle clubs. They are usually conducted in a public-spirited manner and do not cause a great deal of nuisance, if any nuisance at all, to the public, and they do serve a useful recreational purpose. I think we ought to consider that.

Mr. Aitken

I think that this is a point which might well be dealt with in Committee. Obviously, the question of a mark inscribed on a road and which is quite harmless and does not distract anybody driving or detract from safety in any way is one we might well deal with in Committee.

Lieut.-Commander Maydon

I am very glad to have that assurance from my hon. Friend.

I am very glad to see Clause 7. These is nothing so hideous as an old, dead tree, which is often a hazard to those who pass by. It is often, of course, an expensive encumbrance to remove. It requires labour and special equipment, and for that reason some of the old, dead trees are left cluttering some of our roadsides year after year. I feel that the measures in Clause 7 will go some way to removing this ugliness and this potential hazard.

Clause 8, too, I particularly welcome. It is applicable to second-class roads in country districts where it is often desirable to straighten out roads and to reduce the sharpness of turns and banks. If the road is adequately maintained it is sometimes possible to do it without taking any more land from one side or the other, but often, even with adequate margins, it is difficult to do this, and so I feel that this Clause will be helpful in allowing exchanges of the margin of the road on one side for private property which will be taken in to improve the alignment on the other side.

For these reasons, the Bill is very welcome indeed, and I would commend it to the House. I hope it will get an easy passage and that in Committee time will be available to consider so me of these minor points.

1.47 p.m.

Mr. John Cordle (Bournemouth, East and Christchurch)

I have been most interested in the debate on this splendid Bill and particularly in the comments of my hon. and gallant Friend the Member for Welds (Lieut.-Commander Maydon) on the appearance of our roadways. This Bill will deal with the matter of cleaning up the highways throughout the land. I think that at this stage it is only right to pay tribute to the wonderful highways and by-ways of our land, especially when we compare them with some of those roads one has to traverse in the United States where there are car wrecks and other wrecks on display from one end of the year to the other. I particularly congratulate my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) on introducing the Bill because I believe that it will deal with this problem of motor wrecks in this country, wrecks which are allowed to lie on our highways in the most disfiguring manner.

The real purpose of the Bill is to make it easier far all to move up and down the highways. It deals with obstructions, but with due respect to my hon. Friend I would say that he does not go quite far enough, for there is no mention in the Bill of the very serious and severe hazard of animals. To make the highway easier and safer to move up and down is a problem which I know has come before the House before, and it was debated in another place in 1958 when Lord Ailwyn provided some astounding statistics about our highways and by-ways and of accidents caused because the ordinary domestic dog was allowed free access to the roads and to run wherever it wished to do.

It might interest the House to know that in 1958 about 2,731 serious road accidents which caused personal injury were the result of dogs straying on the highway. In the same year accidents partly attributable to dogs numbered 237,265. In Committee it might well be a good thing to look into this whole problem of roaming animals. My family and I often travel to my constituency through the New Forest. One does not want in any way to see restrictions applied to such a beauty spot, but roaming wild ponies and deer cause very serious problems there. This also might be thought about in Committee and some provisions to deal with it inserted in the Bill.

Although motorists who travel through the New Forest are warned that they will be penalised if they feed the animals, nevertheless they do so and as a result the wild ponies keep close to the verge of the main highways. I suggest that the Bill should provide that this serious danger be met by the erection of fences on the verges of these main highways. I suggest also that the Minister of Transport should extend the "Clearway" provisions so as to avoid this serious danger, because then the motorist would continue on his way until he came to a suitable lay-by.

Mr. Wolrige-Gordon

Would my hon. Friend also bear in mind that accidents are also caused by sheep straying on the highway, especially in highland areas where the road is frequently the only dry area where the sheep can lie down to sleep? The result is that many sheep are to be found at night on these roads, especially in Scotland.

Mr. Cordle

I am obliged to my hon. Friend for that comment. I am sure that that represents an additional hazard.

I have always thought that there is an insufficient number of lay-bys on many of these roads. It would be helpful if that question were also looked into. I understand that lay-bys are under the control of local authorities, including county councils and in some cases also under the control of the Ministry of Transport. Generally speaking, these lay-bys are in a filthy condition and for that reason most people seem to avoid stopping at them.

Dr. Horace King (Southampton, Itchen)

Not in Hampshire.

Mr. Cordle

Not always perhaps in Hampshire, but certainly in some cases. Something should be done to clean up these lay-bys the condition of which contribute towards traffic problems.

I am sorry that Clause 2 (3) specifically excludes London. This is rather deplorable because it ignores the present urgent needs of Londoners many of whom will be dismayed when they find that their interests are not covered by the Bill. For four years the residents of Kensington, for example, have been opposing the borough council's determination to im- pose a uniform pattern of concrete lampposts on a large number of streets, some of which are scheduled as being of architectural merit.

Mr. Ronald Bell (Buckinghamshire, South)

The reason for the exclusion of London no doubt is that the Bill operates by way of being an amendment to the Highways Act, 1959, which was a consolidation and minor amendment of the law relating to highways other than in London. I am sure that my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) would have liked to tidy up the laws of Kensington and places like that but it would have been outside the scheme of the Bill.

Mr. Cordle

I am obliged to my hon. Friend but I should like, if I may, to complete my own comment.

Although the protests were originally based on aesthetic considerations, the effect if the council's plans are put into operation will not only be to destroy the architectural character of the streets concerned but also to provide a substantially increased volume of lighting, which complaining tenants are told is demanded by the police in order to cater for increasing traffic. This seems to be a case where either the council or the police or both together are acting in a way against the accepted modern principles of town and country planning, whereby the main flow of traffic should be confined to routes designed and able to cope with such traffic and other areas should be reserved for pedestrian and local traffic.

Victoria Grove in Kensington is a case in point. It is a short narrow street, confined in its main part between two small Regency terraces with a bottleneck at one end, yet this minor architectural gem is doubly threatened in this way. Having had my say on London, I leave the matter at that. I strongly welcome the Bill and I congratulate my hon. Friend the Member for Bury St. Edmunds on introducing it.

1.58 p.m.

Mr. Marcus Lipton (Brixton)

I apologise to the hon. Member for Bury St. Edmunds (Mr. Aitken), whose speech introducing the Bill it was not my good fortune to hear. He will know that some of us were rather actively engaged during the hours of the night, and I was one of those who tried, not very successfully, to snatch a few hours' sleep before resuming my Parliamentary duties.

I welcome the Bill, and I am sure that it will serve a useful purpose if, as I hope, it reaches the Statute Book. There is a little congestion in Standing Committees at present, but I hope that that congestion will not operate to the disadvantage of this desirable Measure.

I want to make one or two small suggestions which may improve the Bill. These arise from the experience that some of us who live in the country have from time to time. It happens that occasionally a selfish or inconsiderate farmer drives his cattle along the public highway or along attractive country lanes and as a result the verges are trampled down and the ditches are blocked and serious inconvenience is caused to pedestrians and motorists who use these roads and lanes. I had occasion to conduct quite a lengthy correspondence with the Berkshire County Council on this very matter some time ago, and I was distressed to find that either the county council did not want to do anything about it or did not have the power to do anything. Apparently the county council, as the highway authority, could not take any action against a farmer whose cattle had trampled down the verges and blocked up the ditches and left what is euphemistically described in Clause 5 of the Bill as things on the highway.

If the hon. Member for Bury St. Edmunds could consider some addition to this Bill during the Committee stage to enable local highway authorities to recover the cost of cleaning up the roads and repairing damaged verges from the farmer whose cattle were responsible for causing the damage, I am quite sure that a great many people living in the country would be grateful to him. That is the only criticism I have of the Bill. Its provisions will strengthen the power of the highway authorities and prove of convenience to the general public. The selfish farmer will be restrained from using the public highway in a manner which may cause serious inconvenience to people living in the neighbourhood.

2.3 p.m.

Dr. Alan Glyn (Clapham)

I am extremely sorry that the hon. Member for Brixton (Mr. Lipton) has had his sleep disturbed because of the long sittings of the House. I am also sorry that we should have such long sittings, but I would remind the hon. Member that there are ways by which they could be abolished.

Dr. King

And the Bills.

Dr. Glyn

I am sorry that the provisions in this Bill, for reasons which have been adquately explained, cannot be made applicable to London. It is an excellent Measure and will tidy up many of the anomalies and gaps which exist in the present legislation. At the same time it will facilitate the task of the highway authorities. I was interested in what was said about trees. Perhaps the provisions in this Bill may facilitate the planting of trees along the dual carriageways in a manner which will help to prevent accidents being caused by the lights of oncoming traffic.

Mention has been made of the danger caused by straying animals, and it is possible that in some way their numbers may be reduced. Perhaps the local authority might be able to contribute towards the cost incurred by owners in fencing alongside the highway. The whole question of animals straying is one which is worthy of serious consideration by this House. I refer not only to domestic animals, such as sheep and cows, but particularly to domestic pets. In my opinion, our legislation is sadly defective regarding the responsibilties of owners of animals. I hope, if not in this Bill at some other time, that it will be possible for the House seriously to consider the danger on the highway caused by straying animals.

I am concerned about Clause 4, although I do not share the anxiety which has been expressed about cyclists and their weekly tours. I am concerned that local authorities in places such as Kensington, of which my right hon. Friend has great knowledge, should place signs on the roads such as interrupted white lines. I find upon investigation that these signs have no legal effect whatever, and I wonder whether a private individual could bring an action against a local authority for putting them on the road. I should welcome some information on that point.

Clause 5 deals with the problem caused by depositing rubbish which I have encountered on many occasions. Both the hon. Member for Brixton and I can recall a notable example of this which occurred on the boundaries of our constituencies where rubbish was deposited in the street and it was almost impossible for the local authority to do anything about it. That is another reason why I am sorry that the provisions of this Bill do not apply to London. Clause 6 refers to the removal of obstructions and impediments in the highway and that is something with which local authorities should have adequate powers to deal.

I am particularly interested in Clause 8. So often in the past when road improvements have been made it has been impossible to do anything with extremely valuable bits of land to restore them to their proper agricultural or horticultural use. I may be wrong, but I think that local authorities have no power to dispose of such pieces of land once they have been dedicated as a highway. By this Clause we may be able to restore such land to its proper use. I have mentioned the problem caused by animals and I hope that legislation may be introduced to deal with that, although I do not consider that it would be suitable to do so within the scope of this Measure.

I share the anxiety of my hon. Friend the Member for Bristol, North-West (Mr. McLaren) and if he were agreeable I should be prepared to put down an Amendment on the point which he raised. It is a great iniquity that local authorities can, by pleading this extraordinary doctrine of nonfeasance, opt out of a liability for something which they have been paid by the ratepayers to maintain. If I step outside my house and I trip over a paving stone which is badly uneven, I have no redress whatever. But if on the day previously the local authority had raised that paving stone—to examine the drains or for some similar reason—I should have a right of action. This doctrine has no sense. An excellent example was given by my hon. Friend and it should be no defence for a local authority to be able to say, "We are not responsible" I do not share his anxieties about the number of cases which would be brought. There may well be a large number of fictitious actions brought, for instance, by some good lady whose heels are very high and who trips over a paving stone, or something of that nature, but, frankly, courts have adequate means of dealing with actions of that sort.

As my hon. Friend the Member for Exeter (Mr. Dudley Williams) says, it is extremely expensive, and I am sure that the figure of 200 guineas which he mentioned would deter many people from bringing actions of that nature. I shall certainly join with my hon. Friend the Member for Bristol, North-West and try to add to the Bill a Clause which removes this ridiculous anomaly, in spite of what local authorities throughout the country may feel. It is not the local authorities which we have to consider but the public, to whom we owe a special duty. I shall most certainly endeavour to put down an Amendment, although I must confess that Amendments moved upstairs, as my hon. Friend the Member for Exeter knows, do not always have the success which we should like them to have.

I welcome the Bill and congratulate my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) for the excellent way in which he presented it to the House and also for the number of anomalies which it propose to remove, and I hope that it will get a Second Reading.

2.12 p.m.

Mr. Jasper More (Ludlow)

I too welcome the Bill and wish to add my congratulations to my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) on the admirable way in which he introduced it. I also wish to say how very much I agree with my hon. Friend the Member for Bristol, North-West (Mr. McLaren) in everything that he said regarding the present position of the law of nonfeasance. I add my support also to what has been said by several hon. Members regarding the problem of straying animals on our roads. This is a major danger which sooner or later, I think, Parliament must solve. I hope that we shall not look at the matter entirely from the point of view of the motorist. On the numerous occasions when I find myself in near collision with stock belonging to farmers, I am often met with the remark, "Who was here first—the cows or the cars?" I sometimes find it difficult to answer that question.

I want to say a few words under two heads about Clause 8 of the Bill. It is a Clause which, for very right and obvious reasons, seeks to make provision for straightening our roads by means of what are, in fact, exchanges of land. I suggest that in these provisions there is a possible defect which might be looked at in Committee relating to the question of road ownership.

The roads in this country, broadly speaking, are now in the ownership, I think I am right in saying, of three classes of owners. Firstly, our new motorways belonging to the Minister of Transport. Secondly, our traditional roads are in private ownership as far as the freehold is concerned, except as regards a third category where they have been conveyed to or acquired by local authorities such as county councils, and the transactions covered by the proposed Clause will bring more areas of roads into that third category.

Whether we like it or not, we are drifting into a position where the ownership of our roads is becoming a kind of checkerboard, increasingly confused, and which in future will give rise to increasingly complicated questions—questions relating to the all-important matter of fencing, to which several hon. Members have referred and which, of course, involves the question of straying animals; questions of ownership of subsoil, and questions of trespass.

I think that my hon. Friend the Member for Bury St. Edmunds clearly had in mind the question of subsoil, because subsection (7) states: Nothing in this section shall be construed as affecting any mines or minerals under a highway. In terms, that appears to be a direct contradiction of subsection (4, b) where the effect of this exchange is stated to be to operate to vest the land in the transferee for an estate in fee simple… I have no doubt that that has been looked at by the draftsmen, but I suggest that it might be a good thing if a second look at it could be taken in Committee.

The question of trespass might seem to the House to be a technical matter of no substance, but it is a fact, if one looks at the Law Reports, that there are a number of recorded cases where members of the public have been successfully sued for trespass by the owners of the subsoil of a highway. There was one case in particular where the owner kept valuable racehorses which were exercised in a field adjoining the road. Certain gentlemen of a particular profession found it in their interest to draw up at the side of the road on the highway and watch the horses. The only way in which they could be dealt with was by a civil action for trespass brought against them by the owner.

That may not strike the House as a very important matter, but I suggest that when legislation of this kind is put through the question should be considered whether, instead of an out-and-out transfer as is contemplated in subsection (4), there should not be an argument in favour of saying that the road newly to become the highway should be under the same legal provision as the rest of the highway, that is to say, not conveyed but dedicated.

I now come to the second observation which relates to what I was very glad to hear my hon. Friend the Member for Bournemouth, East and Christchurch (Mr. Cordle) say in regard to lay-bys. This is a question which is becoming of increasing importance with the growth in our road traffic. It is exercising the minds of the County Councils' Association and many other associations, but it is too early yet to say that even a provisional solution has been reached.

Looking at the terms of the Bill, one feels that it is an obvious start in any scheme for making lay-bys or picnic sites for members of the public that we should use those sections of the highway which, on account of their being on corners or unsuitable, are no longer to be used for the highway itself. I suggest to the Minister that this new legislation might perhaps be looked at from that angle, and in conclusion I wish once again to give my support to the Bill and to congratulate those responsible for introducing it

2.18 p.m.

Mr. Dudley Williams (Exeter)

I hate to spoil the effect of this mutual admiration society by saying that I do not like the Bill. I must say, however, that when I looked at the Bill I was astounded at the grip which my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) has on the highway legislation of this country. I hope that he will be able to dispel or that my hon. Friend who is to reply for the Government will be able to dispel any thought that the Government are behind the Bill.

I dislike intensely the practice of introducing on Fridays Bills which have not really originated in the minds of the persons introducing them and which are merely an abuse of what is Private Members' Time for Government purposes. The last Bill which we discussed this morning was, as everyone knows, inspired by a private Member, and I think that he deserves great credit for it. I am not saying anything about my hon. Friend for introducing this Bill or even for having received assistance from the Government. I once did it myself. I introduced a three-Clause Bill the purpose of which was to allow ratings and officers of the Royal Navy and the Royal Marines to have their births and marriages registered in England. What happened? It passed through this House, went to another place, the Title was changed, my three Clauses were knocked out, seven new ones were put in and it was sent back and it was still my Bill. I want to know whether that is likely to happen with this Bill.

This is a very complicated and difficult matter to deal with when there are so few Members in the Chamber. My hon. Friend the Member for Bournemouth, East and Christchurch (Mr. Cordle) made reference to the New Forest and to the fact that there was sometimes considerable trouble in the New Forest from animals. I have looked carefully through the Bill, and I cannot see any reference in it to any provisions for ensuring the safety of animals. If we are to have a Bill as wide as this, it seems to me to be a still further reason why it should be considered on a day when Government business is being considered and it should be dealt with in a very careful and responsible manner.

Mr. Aitken

May I ask my hon. Friend if he has ever found any way in which we can legislate for animals? They cannot read, they have no knowledge of the law, and, if they are not under the control of a human being, I think that it would take very ingenious drafting to legislate for animals, even in this Bill.

Mr. Dudley Williams

That is the very point that I am making. Not only one but two hon. Members on this side of the House have referred to animals. One referred to racehorses and the other to ponies straying all over the New Forest

Dr. King

Is the hon. Member for Exeter (Mr. Dudley Wlliams) suggesting that the hon. Members who referred to what they would like to see in the Bill were not in order in doing so on Second Reading? Why should he condemn the Bill because of what other people have said on Second Reading?

Mr. Dudley Williams

The hon. Gentleman should know better than that. It is not for me to say what is in order but for Mr. Deputy-Speaker to pull up anyone who is not in order. I am saying that the Bill could have a very great effect and be very comprehensive. The two hon. Members who referred to animals will probably be contemplating putting down Amendments to the Bill if it ever gets to Standing Committee.

Mr. Geoffrey de Freitas (Lincoln)

For years, on private Members' days, nearly all Private Members' Bills have related to animals. Therefore, when we have a Private Members' Bill which does not relate to animals, it is very natural that hon. Members should fall into that error.

Mr. Dudley Williams

I do not mind giving way, but I deprecate hon. Members making my speech for me. I was coming to the question of animal legislation, about which I wish to make some considerable reference.

There may be confusion in some people's minds whether this House can legislate for animals. I would remind you, Mr. Deputy-Speaker, that it will be within your recollection that this House has frequently legislated for animals, especially on Fridays. There was the Animal Boarding Establishments Bill. That was a monstrous Measure.

Mr. Deputy-Speaker (Major Sir William Anstruther-Gray)

Reference to other Bills is in order but to go into a description of the Animal Boarding Establishments Bill when we are discussing the Highways (Miscellaneous Provisions) Bill is going too wide.

Mr. Dudley Williams

I quite agree, Mr. Deputy-Speaker. This Bill is trying to introduce Measures which were rightly turned down by the House of Commons when we were discussing the Animal Boarding Establishments Bill, which I resisted very strongly either here or in Standing Committee. This matter touches on a wide subject

In order that I should be adequately briefed to discuss this Bill, I have been studying this morning Halsbury's Laws of England. It will be within the recollection of the House that a great deal of Volume 19 is occupied with highway legislation. One point which I should like to hear referred to by the Minister when he gives the Government's views on this important piece of legislation is what effect the Bill will have on the Defence Acts. If he will refer to page 103, Volume 19 of the Third Edition of Halsbury's Laws of England he will find in paragraph 152 the statement: Under the Defence Acts. The Secretary of State for War may. without adopting any legal proceeding, stop up or divert or alter the level of any highway over or adjoining certain lands comprised in a declaration made and signed by his predecessor in office on or before 31st August 1861 Perhaps my hon. Friend will tell me the answer to that and what effect the Bill will have on that legislation. This Bill will have great repercussions on legislation passed through the House of Commons over the last hundred years. It will be noticed that the period since 1861 is almost a hundred years. I should like to know what effect the Bill will have on legislation dealing with highways between that time and now.

I feel that Clause 3 is a ruthless power to put into the hands of a highway authority. It reads: If it appears to the highway authority for any highway that a ditch on land adjoining or lying near to the highway constitutes a danger to users of the highway, the authority may—

1. (a) if they consider the ditch unnecessary for drainage purposes, fill it in; or
2. (b) place in the ditch, or in land adjoining or lying near to it, such pipes as they con- 1124 sider necessary in substitution for the ditch, and thereafter fill it in."

Is it right to do this? We had a considerable discussion a short time ago on a pipeline to be built to the Severn from Southampton Water. Strong views were expressed about it. It was thought monstrous that there should be this interference with private property by a company, which would put a pipeline over the southern part of England. It is wrong that a Clause as loose as this should be embodied in a Bill of this nature. It does not say how far people can go from the highway. It reads: …lying near to the highway… What does that mean? In these days we see on the roads the sign "Slow, Major Road ahead" I have never known what that means. If one is travelling at 80 miles per hour, has one to slow down to 60 miles per hour? That is the sort of vague and silly definition which irritates me. Clause 3 needs very careful consideration indeed in Committee. It will doubtless be a Government Committee; I do not think that it stands much chance of being sent to Standing Committee C.

My hon. Friend the Member for Bournemouth, East and Christchurch also referred to the state of lay-bys. Some lay-bys are filthy with papers, bottles, etc., lying about. A local authority can make use of powers which have been given by the House in an Act which I would have opposed had I been here, although I agree with the principles of that Act. I refer to the Litter Act, promoted by my hon. Friend the Member for Hexham (Mr. Speir). The House passed that Act it provides adequate penalties for people who throw their litter about.

I say to the hon. Member for Bournemouth, East and Christchurch that he should get his council to be as progressive as the Devon County Council. The latter has a number of inspectors who go round the country in their work. People who throw jam pot covers or ginger beer bottles or anything else which they like to fling about when they come to enjoy Devonshire in the summer can be jumped on and made to pick them up again. I am glad to hear from my hon. Friends that this is done elsewhere. In that case, I see no need for further legislation dealing with lay-bys.

Clause 5, again, is too much for me. It gives a highway authority power to remove any thing unlawfully deposited on the highway which constitutes a danger…to users of the highway; I wonder what that means. It has been held and sustained by the Court of Appeal that anything on a highway is an obstruction and therefore dangerous. No one has the right to be on a highway unless he is moving. Hon. and learned Members will support me in that statement. One has the right only to travel over the highway. Anything stationary on the highway is an obstruction. What will happen under the Clause? If someone's car runs out of petrol or the lights fail, will the local authority say that the car is unlawfully deposited on the highway, take it away and sell it under Section 128 of the principal Act, whatever that may be? This is a wide power to give to a highway authority. I agree that some power should be given to remove offensive articles on the highway—for example, a scythe which has fallen from the back of a cart—but I do not think that the powers should be as wide as this. In any case, certain powers already exist under other Statutes.

Clause 6 states what the highway authority may do with the article which it has removed from the highway. It can sell any thing removed …unless the thing is claimed by its owner before the expiration of three days from the date of its removal: The Clause says nothing about finding out who the owner is.

Mr. Herbert Butler (Hackney, Central)

What about a child which has fallen out of a car?

Mr. Dudley Williams

I do not want to be frivolous. I do not think that that would come within the scope of the Bill.

Some provision ought to be made that steps should be taken to see who the owner of the property is before it is sold. The Clause says that the authority may recover from the owner of the thing which caused the obstruction…he expenses reasonably incurred…in carrying out the duty…". There is no suggestion that a warning will be given to the owner before these expenses are incurred.

My hon. Friend the Member for Clapham (Dr. Alan Glyn) referred to Clause 8, and I will not repeat all the points which he made. Apparently, in making an agreement to obtain land, all that is necessary is for the authority to publish

once at least in each of two successive weeks…a notice giving particulars of the proposed agreement. I do not think that that is satisfactory. We should always try to find out who is the owner of land. We may well find that he is abroad on holiday for a month or two. Surely it is reasonable that the owner of the land should be approached before this transfer takes place of a piece of his land to the highway authority. It is not sufficient to say that provided that a notice is published in some obscure local paper, that is all that need be done. We should see that the owner of the land is properly protected.

I am much averse to these complicated Bills being put through the House on a Friday. I shall have to consider carefully what steps to take when we decide whether to give the Bill a Second Reading. Whether it is given a Second Reading today or not, and whether I am successful in mounting enough support in the House to prevent it, I hope that if it reaches Standing Committee it will be changed by a considerable number of Amendments. I shall certainly put down a great number. I hope that the Bill will then return to the House in a very different state from that in which it is leaving the House this afternoon.

2.36 p.m.

Colonel Sir Tufton Beamish (Lewes)

I apologise to my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) for not being in the Chamber to hear his speech moving the Second Reading of the Bill, but he knows that I moved the Second Reading of another Bill earlier. I hope that his Bill will be given a Second Reading, and I see no reason why it should not, but there are some points in it which give me cause for anxiety, and I think that the Bill will need to be looked at carefully in Committee.

The Bill has the support of the East Sussex County Council, in whose area my constituency lies. I received a message from the clerk yesterday asking me to support the Bill, and I am glad to do so, but I am not 100 per cent. pro-highway authority by any means. I think that they behave badly on many occasions, and if there is a serious fault in the Bill it is that it errs on the side of giving still more power to highway authorities and still less protection to owners of private property.

Mr. Dudley Williams

That is at any rate one supporter for me.

Sir T. Beamish

I certainly support some of the things which my hon. Friend the Member for Exeter (Mr. Dudley Williams) said—everything he said on my Bill and some of the things he said on this Bill. Other hon. Members have referred to the fact that there is no provision in the Bill to deal with the problem of livestock which stray on the highway. There is in existence a Private Bill, sponsored by the R.A.C. and the A.A., which I looked at, the effect of which would be to make sure that if it could be proved in court that a property owner had not taken reasonable care to fence his property, for example, or a gate had carelessly been left open and cows had strayed dangerously on to the highway, then someone who had an accident and whose car was damaged as a consequence could make a claim against the owner of the livestock.

Mr. H. Hynd (Accrington)

Is not that already covered by legislation? Although the fine, I know, is ridiculously small, the point is covered.

Sir T. Beamish

There may be some doubt about it in law. Last year when I was driving over Ashdown Forest, on the way to my constituency, I saw a large, fat ewe galloping down the road towards me at about 30 m.p.h. I was travelling at about the same speed, but I had time to stop, because I thought the animal might be slightly out of control. In fact it was, and when I was stationary it hit me at about 25 m.p.h. It did £90 worth of damage to my car. I have been driving since I was 17, which is quite a long time, and I am glad to say that, with this exception, I have had no accident. But I lost my no-claim bonus on this occasion, and I had no redress whatever. I took legal advice about it. It might be possible to incorporate in the Bill the kind of provisions which the motoring organisations suggest to improve the law in this respect. I make that suggestion to my hon. Friend. and perhaps he will consider it.

I am surprised that in Clause 1, which deals with footpaths and bridle-ways, the words "right of way" are not used. A great many owners of private property suffer from the fact that when a footpath is shown on the map it is regarded by many people as a right of way. They do not look at the bottom of the ordnance map, which makes it clear that the fact that a footpath is marked on the map does not mean that it is a right of way. Will my hon. Friend consider this point in order (to make clear the distinction between those footpaths for which highway authorities and parish councils have responsibility and others which cross private land and over which these bodies have no authority? I think that the Clause is on the right lines, because we know that rights of way all over the country have often been badly maintained. Sometimes one's own experience is more interesting than generalisation. There is a right of way across the corner of my small property in Sussex. It is sometimes overgrown with brambles and virtually impassable, and it has a stile which is a positive danger. It is not properly maintained. If this Clause gives highway authorities the power to co-operate with parish councils and others concerned to make sure that existing rights of way on the county council's map are properly maintained, I warmly welcome it.

Clause 2 deals with the powers of highway and local authorities to plant and protect trees in highways, etc. I want to draw attention to a most excellent Government publication entitled "Trees in Town and City", published by the Ministry of Housing and Local Government. It costs 7s. 6d., which is jolly expensive, but it is very good value for money, although for 7s. 6d. one does not expect to get a paper-back. It is a very good booklet and I hope that every local authority in the country which has not studied it will read it with the utmost care.

One thing which horrifies me as a tree lover is that more often than not the the wrong trees are planted in the wrong places. In his introduction to this excellent booklet my right hon. Friend the Minister of Housing and Local Government says: Hardly a street could not be improved, if someone would give thought to planting the right trees in the right places. The booklet contains ghastly examples of What I can only describe as vandalism on the part of local authorities—mopheaded street planes, drastic mutilation of trees, and badly treated lime and many other trees. It is full of photographs showing that over and over again people plant a little tree about 5 or 6 feet high and suppose that it will grow to about 15 or 20 feet when in fact the tree wants to grow to 100 feet. The bigger the tree gets the more they have to lash into it and the more horrible it looks. I hope very much that my right hon. Friend will look at the Clause to see if he can impose on local authorities the requirement to plant appropriate trees.

Far too often wrong trees are planted. Far too often trees are not properly looked after. It would be very pleasant if in a Bill of this kind it was possible to include a form of words which would go a long way to ensuring that the right trees are planted in the right places and are properly cared for. There should be a requirement on highway authorities to look after them.

Clause 3 deals with ditches and pipes. I have always felt that highway authorities are very high handed and show lack of consideration of the rights of private property owners, large and small—I mean people owning a quarter of an acre as well as large farmers and landowners —in the way in which they drain highways. Authorities frequently drain highways in the place which is cheapest for them and simplest but which does the maximum damage and causes the greatest possible inconvenience to landowners. For example, they do not bother to pipe water down a ditch into a natural drainage area. They pipe it through a culvert in the place which happens to suit them, and it floods somebody's woodland or field or garden. I am suffering from this. I do not want to plead my own case. I have already lost it, and I shall pay for a diversion. However, one's own experiences are illuminating. There are many cases in my constituency—many hon. Members will have the same experiences—where the highway authority gives far too little consideration to the rights of private property owners in the way in which they drain the highways.

Would it not be possible to include a provision in the Bill requiring authorities to give full consideration to the rights of property owners instead of simply giving the one answer every time, "We have a prescriptive right to drain the highway"? It does not matter when they started draining it, whether the village has been built up and there is far more water coming down the road, or whether there is a garage in the neighbourhood with paraffin flowing down the road and killing shrubs. None of these things seems to matter to the highway authorities. It is simply concerned to drain the highway. I hope that it will be possible to ensure that the rights of private property owners are given full consideration and that we do not simply extend the power of highway authorities.

Clause 6 deals with the removal of obstructions from highways. When I used to drive down to my constituency at the weekend—I still do—there was a road in the West Sussex County Council area which was obstructed for more than eighteen months. There was single-lane traffic. It is the main road to Eastbourne. It also goes down to Lewes and Newhaven in my constituency and, for instance, to Hastings and Rye. The road is absolutely packed with traffic every weekend. There were hundreds of cars piled up. Yet whenever I passed this spot there would be 15 or 20 men on the job, supposedly, with never more than one or two of them working.

Can we not require local authorities, not only to light or remove obstructions which somebody else may have put on the road, but also to light their own obstructions properly and get on with the job? Has the road user any redress against a highway authority which unreasonably obstructs use of the highway? In this case, about which I asked a Parliamentary Question and received a jolly bad answer, I am certain that the job could have been done easily within a month. It took more than eighteen months. There was a gross lack of consideration for highway users.

I do not mention these points in any carping spirit, because I think that the Bill on the whole contains some excellent things, but I think it errs too much on the side of giving more power to highway authorities without sufficient consideration being given to the ordinary members of the long-suffering general public. I should be very grateful if my hon. Friend would be good enough to look at the Bill in that light.

2.46 p.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I apologise for not having been present to listen to all the speeches. I want to refer to one matter only which I understand has already been touched upon to some extent, but I am afraid I was unable to hear what was said. The Bill is a very useful one, and I strongly support it. However, I am sorry that the opportunity has not been taken to deal with the very vexed question of the non-liability of highway authorities in cases which come within the doctrine of nonfeasance.

This is an excellent opportunity of putting right a wrong which has persisted for a long time. It is extraordinary that we hold a highway authority liable for accidents which occur as a result of misfeasance—that is, as a direct result of something done, some positive act of negilgence on the part of the highway authority. However, in the many cases of accidents which have arisen—there have been some very grievous ones—resulting from lack of repair, want of repair, or failure to repair on the part of highway authorities, we shelter the highway authority behind the doctrine of nonfeasance. The result is that highway authorities are not liable for what in many cases are the serious consequences of accident.

This matter was discussed in great detail by a committee of the General Council of the Bar. The committee made recommendations and pointed out how very anomalous the position is and how very wrong it is that highway authorities are able to escape from liability on the grounds of non-feasance.

I do not wish to detain the House at any length, but I should like to read the reasons which were given for favouring some provision which would make it clear that a highway authority should be liable for the results of non-feasance. The committee said: 1. It is a doctrine which finds its origin in reasoning which is no longer applicable or relevant to present-day circumstances. The original reasons for the exemption no longer exist. That is true. The legal background appears to be that no action may be laid against an unincorporated body—that is, where all the members of the parish were liable. Although that has been changed and the position now is that a highway authority clearly is not in the position of an unincorporated body, non-liability still persists apparently because of the original reason.

The second reason is: It creates an exemption from liability in one particular branch of the law which qualifies it as a quaint anomaly. It is curious that there should be liability on an individual or on anybody except a highway authority. Why there should be non-liability on the part of a highway authority I do not know.

The third reason is: It is one which from time to time leads to grave injustice. There have been that.

Then we read: In view of the increasing number of road accidents any measure calculated to improve road conditions as desirable. This is such a Measure, and the hon. Member has, by this Bill, a splendid opportunity to put right something that has been wrong for a long time.

The Committee also says: A situation in which highway authorities alone escape liability for breaches of their own statutory duties is hardly supportable. Highway authorities ought to look after the roads under their control, and ought to have a positive duty of examining them from time to time and seeing that they are in good condition. It must strike anybody as being quite wrong that when the paving of a road has sunk because of neglect and someone trips on an edge and is injured, that person should have no right, because of that doctrine. to recover damages.

The Report also says: No single effective argument can be raised to support its continuance in modern conditions. That, shortly, is my case. As I have said, this is a very useful Bill, indeed. A grave injustice has continued for a long period, and the injustice is well recognised, so I hope that in Committee the hon. Member will see fit to put something in the Bill to rectify that anomaly.

2.50 p.m.

The Parliamentary Secretary to the Ministry of Aviation (Mr. Geoffrey Rippon)

I should, perhaps, make it clear that in intervening in this debate I am not indicating any desire on the part of my right hon. Friend the Minister of Aviation to make a take-over bid for any other transport functions. Indeed, I would be very sorry to be in the position to have to give to my hon. and gallant Friend the Member for Lewes (Sir T. Beamish) any more of those alleged unsatisfactory replies that he says he has received.

My hon. Friend the Joint Parliamentary Secretary to the Ministry of Transport is unwell, and my right hon. Friend the Minister of Transport is fulfilling public engagements in Lancashire that he could not very well cancel at short notice. I am sure the House will understand the position and why it falls to me to congratulate my hon. Friend the Member for Bury St. Edmunds (Mr. Aitken) on having been successful in the Ballot, and on having taken the opportunity to introduce this very useful Measure.

I should like to add to the tributes my hon. Friend has received from both sides by congratulating him also on having explained the Bill's purpose so lucidly. As my hon. Friend the Member for Bristol, North-West (Mr. McLaren) said, much of highway law is of very ancient origin. This is, perhaps, less obvious since it has been consolidated in the Highways Act, 1959, but we have only to look at the Twenty-fifth Schedule to see that a very great deal of old legislation is involved in the consideration of this subject.

Like my hon. Friend, I had some time on my hands earlier this morning, and I took the opportunity to look up that old favourite, Pratt and Mackenzie's standard work on highways. Unlike him, I could not go through the whole thousand pages, but I refreshed my mind by re-reading part of Magna Carta, 1297, and the Highways Act., 1835.

Although many of the basic principles of our highway legislation remain essentially sound, it is not, as my hon. Friend the Member for Bristol, North-West said, altogether surprising that same parts could be tidied up, since many of the old Acts dealt more with the conditions of the pack horse and stage coach than of the motor car.

I think that hon. Members on both sides will agree that the Highways Act of 1959 was itself a considerable achievement. It was badly needed, but it was only a consolidation, or, occasionally, a restatement of the existing law. Those who were responsible for it—and I am thinking particularly of the Committee on the Consolidation of Highway Law under the able Chairmanship of Lord Reading—were very conscious of the numerous gaps. defects and archaisms which required some remedy for the future. I am glad to see in the Chamber my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) who, together with the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine), served with great distinction on that Committee and contributed very much to its deliberations.

I can tell the House that my right hon. Friend the Minister of Transport hopes in due course to undertake a complete review of some of the defects that exist, but that will inevitably take time. It is very obvious from today's discussion that highway law is not one of the simplest branches with which we have to deal. As my hon. and gallant Friend the Member for Lewes said, we have to reconcile and adjust the rights and duties of individuals and of public authorities, and hold a proper balance between private rights and public needs. We have also to try to resolve possible conflicts between various types of authority that have powers and obligations in respect of works on, under or over the same piece of land.

Meanwhile, I am sure that the House will feel that this Bill is a very valuable first step in the review of our highway law. I appreciate that in drafting it, my hon. Friend has had the advice and assistance of highway authorities and, in particular, the local authority associations. As the hon. Member for Southampton, Itchen (Dr. King) says, it is of very real value to have the support of such bodies as 'the County Councils Association in these matters. It shows that these Clauses, miscellaneous though they are, have been very carefully considered and represent what we feel can usefully be done at the present time.

Whilst, therefore, the Bill introduces no great innovations, the Government feel that it promises a useful amendment of the existing law, and clarifies a number of really important points. As my hon. Friend the Member for Exeter (Mr. Dudley Williams) said, the content is a matter for my hon. Friend the Member for Bury St. Edmunds, and it is therefore not very appropriate for me to deal at great length with all the matters raised in the debate.

My hon. Friend the Member for Bristol, North-West dealt with misfeasance and non-feasance, and the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) and other hon. Members also referred to that matter. That is a much more controversial issue than those dealt with in the Bill, and I would only say that it might be a pity to miss a quincentenary when the oldest living inhabitants, as it were, who are accustomed to giving evidence at highway cases would have had a suitable opportunity for mild celebration.

I am sure that my right hon. Friend the Minister of Transport and my hon. Friend the Parliamentary Secretary will pay close attention to the detailed points that may arise on Second Reading, and I shall draw the attention of my right hon. Friend the Minister of Housing and Local Government to the remarks of my hon. and gallant Friend on the subject of tree planting generally. I certainly shall not try to bring various furry friends—cattle, sheep, ponies and the rest—into the discussion.

I think that the fears of my hon. Friend the Member for Exeter have been exaggerated, but no doubt he will pursue his points with his usual vigour at another time. I might point out at once, for example, that his references to ignoring the owner in reaching agreements under Clause 8 are, perhaps, not correct. As I understand the position, there has to be an agreement with the owner, and the notices are subsequently issued for the benefit of other parties who might be interested.

My hon. and gallant Friend the Member for Wells (Lieut.-Commander Maydon) said that Clause 1 would be useful because, among other reasons, it would prevent footpaths and bridleways not being maintained because of lack of funds. I think the mischief that Clause 1 cures is a legal difficulty rather than a matter which arises through lack of funds. As I understand it, county councils are the highway authorities for all public footpaths and bridleways maintainable at the public expense, and they are responsible for their maintenance, the parish councils having concurrent powers of maintenance under Section 46 of the 1959 Act as it now stands. Although, as my hon. Friend the Member for Bury St. Edmunds explained, the county councils do the work of maintenance themselves, it is very often much more convenient for local people employed by the parish councils to do it. Unfortunately, if that happens at present county councils have no legal power to contribute to the cost of such works. Clause 1 will put right that defect in the law.

It has been rightly emphasised that the great value of this Bill is that it will enable the highway authorities to take useful action where necessary in the interests particularly of road safety and road users generally. It will enable them in many of these cases to act more swiftly and effectively without endangering any individual rights that ought to be protected. These new powers will be available to highway authorities generally—that is both to local authorities and to my right hon. Friend the Minister of Transport in relation to trunk roads.

I can give my hon. Friend the assurance for which he asked, that the Government will try to facilitate the passage of this Measure by providing the necessary Financial Resolution. We consider it a sound and admirable Measure, and I have no hesitation in commending it to the House.

3.2 p.m.

Mr. James MacColl (Widnes)

I felt some considerable alarm when I saw the Parliamentary Secretary to the Ministry of Aviation rise to his feet, because I can think of nobody who has a stronger vested interest in wrecking highways than the Minister of Aviation. But I have been mollified by the helpful account that he has given of the Government's attitude to this Bill, and I certainly agree with him that it is a highly desirable Bill and should be supported.

Like my hon. Friend the Member for Brixton (Mr. Lipton), I did not hear the speech of the hon. Member for Bury St. Edmunds (Mr. Aitken), but for different reasons. I was not asleep. I did, however, hear the speech of the hon. Member for Exeter (Mr. Dudley Williams), and that removed any doubts from my mind that this Bill ought to be supported.

I have a small query about the question of nonfeasance and misfeasance. I think that before any decision is taken on including such a provision in this Bill, it is desirable to get the views of the local authority associations, because broadly in large rural areas the highway authority is at risk for a very large measure of financial responsibility—and that means the ratepayers—if there is a large area involved and if the highway authority is legally liable for non-feasance.

Like the hon. Member for Clapham (Dr. Alan Glyn), I wondered whether this Bill might not be useful in London. I know that there are not many grass verges or ditches in the Edgware Road, but there are certainly things dropped yin that highway, and this Bill might be useful in securing the removal of such things and cleaning up the highways. The county council is not the highway authority in London, and I do not know whether that would present any difficulties, but that point might possibly be considered at a later stage.

I warmly support the Bill and hope that it will have a happy progress through the House.

Mr. Rippon

Perhaps I might deal with that point relating to London. My hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) dealt with it when he said that the difficulty so far as London is concerned is that the highway law has not in general been consolidated in the Highways Act, 1959. I think that raises considerable technical difficulties.

Mr. Ronald Bell

My hon. Friend means in relation to London, of course.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).