DIVISION OF ACT INTO PARTS

HC Deb 19 June 1969 vol 785 cc784-812

7.13 p.m.

Mr. F. V. Corfield (Gloucestershire, South)

I beg to move, in page 2, leave out line 28.

I should not have wished to detain the House, although this is a somewhat complex issue, had it not seemed to me that Part III, which introduces the concept of walkways, both raises an important question of principle and introduces practical difficulties which I believe to be unnecessary. I am not sure whether my concern in these matters amounts to an interest which I ought to declare, but I prefer to be on the safe side. I inform the House that I hold the wholly honorary office of president of the Water Companies Association, the members of which are statutory undertakers vitally interested in the matters which I wish to discuss. They are interested, also, with other members of the British Waterworks Association and the gas and electricity industries as well. They are, in my view, rightly concerned because they feel that their legitimate interests as statutory undertakers, with, as a corollary, statutory duties to perform, may be seriously prejudiced by Part III.

As the House knows, statutory undertakers rely on rights conferred upon them by a number of statutes to use the public streets and highways as the basis of their distribution network. Obviously, that background has considerable advantages for the statutory undertakers and for those who take supplies, since the street pattern by its nature gives ready access to the individual premises which they are required to supply. It provides the means by which alternative routes can be arranged so as to ensure a reliable service. It provides means by which the system can, as time demands, be expanded. Further, the streets themselves provide means of access for vehicles and men for maintenance purposes.

Unlike streets, the walkways with which we are here concerned are not public highways in law. Further, in so far as they are constructed above ground level—often on the sides of buildings or even through buildings—they may even physically be wholly inappropriate for the carriage beneath them of the various services to the extent that they are main distributive systems rather than purely points of supply to the premises bordering the particular part of the walkway. Indeed, they may have to be specifically designed if it is necessary to carry the heavier supply mains—I am thinking mostly in this context of gas and water—which might be necessary if they entirely replaced streets in this function.

However, these walkways, when constructed, may well prove to be the only reasonably convenient routes for such services. Since the pattern of walkways and the pedestrian precincts which go with them is likely in a great many areas considerably to reduce the number of traditional streets, the alternative route available to the statutory undertaker may in some instances prove to be very circuitous and, therefore, much more expensive than the more direct route which would be possible along the walkways.

All this has been recognised, though a little belatedly, by the Ministry of Housing and Local Government, which has as a result produced a Report from the Minister's Advisory Group on the subject. I say "belatedly" because walkways and pedestrian precincts are an inevitable corollary of the whole philosophy underlying the Buchanan Report, which has been available to the Ministry for five years and more. It is a little lacking in assiduity on the Ministry's part to be so long in studying this problem, which is a problem for the general law and not for the private law such as we have in the bill.

However that may be, we now have the Advisory Group's Report available, but it is only fair to the promoters to add that it was not available when the Bill was presented, let alone when it was prepared and finally printed.

There is in the Bill no adequate provision either for the installation of the statutory undertakers' apparatus, or for its protection or maintenance if by agreement with the owners of the walkways such installations are put in. We are here dealing with a species of public right of way which will traverse private property. Therefore, in the absence of statutory powers, the statutory undertakers will be thrown back on the possibilities of reaching such agreement as they can. This is my concern and that of the various statutory undertakers which I have mentioned.

I do not want gratuitously to quarrel with the G.L.C., but I cannot accept that the mere fact that the Report of the Minister's Advisory Group was not available at the time the Bill was presented entirely excuses the omissions from the Bill. Even if the statutory undertakers themselves had remained entirely silent and made no representations to bring their anxiety to the notice of the promoters of the Bill, which was not the case, and even if the problem had not already arisen in other Private Bills, which it has, it is surely rather obvious that such provisions as those to which I am referring would be necessary in a Bill introducing a whole new code of law governing walkways. I do not regard this as a highly responsible way for the largest single local administrative unit in the country to present the Bill, particularly when it is recognised that the Bill itself provides special powers for the G.L.C. or the boroughs to ensure that the walkways are regularly cleansed. That, one would have thought, required water; but there is no provision for the supply of water. So it is not only a little negligent but, one would have thought, a little short sighted.

However, we have this report. It may be useful if I quote from it. After outlining the background, to which I have already referred, the report in paragraph 4 of appendix 3, points out: Though such developments make it more difficult for undertakers to build up networks, they do not reduce the demands for public utility services. … It is therefore essential that new developments of this kind should provide adequately for statutory undertakers' works. It is the basis of my complaint that the Bill does no such thing.

Paragraph 5 says: It would be wrong if the cost of providing the interconnections and other works needed to provide secure supply systems were forced up by a need to follow circuitous routes, and it will be impracticable as well as unreasonable to expect undertakers to overcome such difficulties by the use on a large scale of compulsory purchase powers which allow them to obtain wayleaves across privately owned land. There could well be circumstances in which the shortest, most logical, and technically most satisfactory route for these services was via a walkway. In the ordinary course, therefore, statutory undertakers would expect to have access to the new type of structure. Paragraph 6 lists certain features of walkways which may, in certain circumstances, make them unsuitable for carrying the mains installation. They are the fairly obvious ones that some of the structures will be relatively light, some of them will be designed in such a way that it will be unsightly to attach large pipes to them, and so on.

Paragraph 8, having taken all that into account, goes on to say: Statutory undertakers cannot, however, depend solely on negotiation in discharging their statutory responsibilities. Powers are needed to back up their standing in the matter. They could not rely solely on good will and it would be expensive of resources, and in come cases impracticable to adopt a circuitous route in the event of disagreement. Paragraph 10 says: As regards the installation of apparatus in elevated walkways: (a) provision of apparatus by statutory undertakers for local services to individual buildings is unlikely to present problems because of the mutuality of interests. (b) The need to provide accommodation for major or trunk through services will not arise …. I will read sub-paragraph (c) in full: Provision of apparatus for statutory undertakers as part of the co-ordinated and interconnected supply network to serve the area where there is no access by a normal pattern of streets does, however, present problems. Here we see a case for permitting the installation of apparatus subject to certain provisos. A note at the bottom says: There is a further consideration. It is not beyond the bounds of possibility that the requirements of future multi-level development may call for both connection and supporting networks for supplies at more than one level. It is clear that the Ministry recognises the problem. It sets it out in the Appendix remarkably clearly and succinctly and goes on to say in paragraph 12: We consider that such rights should be exercisable in the same way as those specified in Section 6 of the Public Utilities Street Works Act, 1950 (that is, the statutory undertaker must give the walkway authority due notice and details of the works which he proposes to execute …) Similar arrangements should apply in respect of the apparatus for unsupported walkways on solid ground. Paragraph 13 says: We have also considered who should meet the cost of removal or replacement of apparatus consequent on demolition or redevelopment of the supporting building incorporating part of a walkway … (14) Provisions of the Act place the responbility for meeting the cost of removal and reinstatement of any apparatus installed in streets in the local authority. By analogy a similar solution should apply when the route of a walkway (whether on or above solid ground) is altered by the walkway authority. Again, there are no such provisions in the Bill.

The Advisory Group's Report goes on to suggest a fairly complete code of conduct for this state of affairs, but it would be unfair to bore the House by reading further from the report. Hon. Members who are interested will find the report worth reading. I certainly suggest to the promoters of the Bill that it is a pity that they did not read it earlier.

It is, therefore, clear that there is a need for special and appropriate provisions in a Bill of this sort in the interests of the statutory undertakers. After all, it tends to be forgotten that this is also in very large measure in the interests of the public which they serve, because if the costs of the statutory undertakers are to be increased they, as we all know, are ultimately paid by the consumer.

This view is clearly shared by the Ministry and underlined by the Minister's Report to Parliament on the Bill when it was introduced. It is worth bringing this to the attention of the House: The next step will be to discuss with appropriate bodies, including those representative of local authorities, the form of general legislation on the subject. That means on the subject of walkways. Whilst the Minister would prefer local authorities to wait for such general legislation, he nevertheless accepts there may be a case for immediate powers to be granted in some cases. Accordingly, he suggested to the promoters that either this part of the Bill should be withdrawn for further consideration in the light of the Advisory Group's report, or that their proposals should be amended, as necessary, to conform with the recommendations made in that Report. In the Minister's view, this Part of the Bill in the form as deposited"— it is still in substantially the same form— should not be allowed unless the Committee are satisfied that the promotor's requirements are so urgent that this Part of the Bill cannot be withdrawn for further consideration. The Minister understands, however, that the promotors will seek leave to introduce a number of amendments to conform generally with the Group's recommendations in respect of the acquisition of, and compensation for, walkway rights, the permanence of walkways; and statutory undertakers. The Minister would not wish to oppose this Part of the Bill as so amended. The Amendments remain to be inserted.

7.30 p.m.

I appreciate that the promoters' difficulties in amending the Bill have not been entirely their fault. I suppose that as the Bill is still here we must presume that the Committee was at any rate prima facie satisfied that there was a degree of urgency. It is relevant to remind the House that since particular objectors withdrew their petition the Bill went through the unopposed Parliamentary Private Bill procedure and the statements on behalf of the G.L.C. as to urgency could not be challenged There is a difficulty in amending the Bill because of the rule of this House that we cannot increase the scope of the Bill by adding to the burdens it imposes on private people.

This is a sound and salutary rule, based on the need to ensure that people whose rights are affected should know and have an opportunity to protest and should not be caught unawares by increasing the burdens during the course of the Bill through Parliament. We have to admit that all the statutory provisions which the statutory undertakers would wish to see could not have been put in without increasing the burden on the private land owners over whose property, or through whose property, these walkways are likely to be constructed.

I appreciate that any attempt to increase the powers over private property would probably have increased opposition to the Bill. It is relevant to remember that although the G.L.C. tells us that this will all be put right by a Bill being introduced next year because this is an annual event, there is no reason to believe that these proposals will not be opposed then as they have been now. No local authority is in a position to guarantee that it can put a Bill through Parliament with these precise provisions. Since there is objection, we must have graver doubts than would otherwise be the case.

I realise that this is the whole basis of the dilemma in which the statutory undertakers find themselves. We cannot have a guarantee that these safeguards will be inserted at any time, nor can there be any guarantee that in the meanwhile works will not be carried out which may seriously prejudice the interests of one or other or all of the statutory undertakers concerned. There is a perfectly feasible way out, and I hope that my hon. Friend will give me a simple assurance, in which case we can all go home much earlier and in a much better temper than might otherwise be the case. There are two steps that ought to be taken. The first concerns the G.L.C. All that is required is a provision in the Bill, either in the form of a proviso to one or more Clauses or in the form of a new Clause, taking the form of an undertaking that the G.L.C. will not declare any footpath or whatever as a walkway or in other ways set up a walkway unless it has, as a result of consultations with the statutory undertakers concerned, received assurances that they are in agreement; or in the absence of agreement, that they have accepted the decision of the Minister of Housing and Local Government in the case of water, and the Minister of Power in the case of electricity and gas.

This seems to be a perfectly easy thing to do, and I am advised that it would not contravene any of the rules of this House, because it would be cutting down the powers of the promoters without in any way increasing the burdens on private property. If this was incoporated in the Bill—precisely what the G.L.C. is promising to do in a year's time—it would meet the requirements of everyone. It is something which it would be wholly inequitable even to consider rejecting.

My second and even more fundamental suggestion has to do with the fact that we would all agree that this is basically a matter for public general law and not for a private Act. The Ministry has produced this report, and reading through it quickly I am not sure that I would agree with every line. It is subject to consultation with the various statutory undertakers or other associations. Surely now is the time for the Ministry to come forward and produce a public general Act of Parliament which will cover this problem because it is becoming of wider and wider significance. There have been five Bills in this Session—three have been withdrawn for various reasons—which contain provisions on the lines of Part III. This will be more and more common, and it is clearly a matter for general legislation.

Now that the Government have relieved themselves of certain undertakings in the industrial sphere and have the permission of the T.U.C. to proceed, they will have plenty of time to introduce such a Bill. It is their duty to do so, and I hope that they will give an undertaking that no further time will be lost before they measure up to their responsibilities and set the example which appears to be required from the G.L.C.

Mr. Speaker

Order. For technical reasons the hon. Member for Gloucestershire, South (Mr. Corfield) has moved the Amendment in Clause 2, page 2, leave out line 28.

May I add that if this Amendment were carried I would put later the other Amendments in the name of the hon. Gentleman. If this Amendment were, at the end of the general discussion, withdrawn or defeated I would still put to the House the Amendment in the name of the hon. Member for Erith and Crayford (Mr. Wellbeloved).

Mr. Wellbeloved

I am indebted to the hon. Member for Gloucestershire, South (Mr. Corfield) for bringing to bear in this debate, on a Bill promoted by a London authority, his experience as a former Parliamentary Secretary at the Ministry of Housing and Local Government. May I say how much I share with him his concern about the manner in which the promoters have conducted the passage of the Bill? The hon. Member has highlighted a number of problems and has dealt with the effect on public utility undertakings.

I want to deal with the possible effect of the walkway provisions upon the general public. It is a matter of regret that the Greater London Council and the London Boroughs Association have not seen fit to remove from the Bill Clause 15(4) dealing with pavings and certain other consequential matters. On Second Reading I gave a fair indication of my concern and made it clear to the promoters that if they did not consider the removal of this subsection it was likely that it would be necessary to object further to the Bill's passage. In the light of this, I hope it will not be claimed that my opposition to the Bill, in tabling Amendments, and in other ways, stems from a desire to be obstructive or unreasonable. My objections are of great substance.

Since I started making my objection, the Greater London Council has corresponded with me. I received a letter from it recently which is undated, but it bears the reference LP/P/HWF, if the hon. Member for Ealing, North (Mr. Molloy) wishes to find it in his file. The first paragraph of that letter sums of the reasons of the Greater London Council and the London Borough's Association for not being able to withdraw subsection (4): I duly received your letter of 24 May, which I referred to the London Boroughs Association. The Association's Honorary Parliamentary Officer has now informed me that they cannot see any justification for there to be a higher, or lower, standard of liability on a walkway authority than at present exists on a highway authority by virtue of section 1 of the Highways (Miscellaneous Provisions) Act 1961, which is the basis of subclause (4) of Clause 15 of the Bill. That paragraph sets out the basis of the reasoning of the promoters of the Bill for including subsection (4) of Clause 15. I do not accept this reasoning as relevant to the matter.

The 1961 Act was a worth-while and progressive Act reforming the law on highways. It was not intended to apply to walkways, and, from a careful reading of the debates on the Floor of the House and in Committee, I have found that at no time was reference made to walkways.

There need be no confusion between a highway and a walkway, since the Bill makes this clear in Clause 10(2). It is clearly laid out that … a walkway shall not be, or for the purpose of any enactment or of any rule of law be treated as being, a highway, street or open space. So the Greater London Council promoters of the Bill were clear that a walkway was in no way related to the definition applied to the 1961 Highways (Miscellaneous Provisions) Act 1961. It was not intended, therefore, that a walkway should be compared with a highway or with any other type of thoroughfare covered by that term. The provision in the 1961 Act was designed for one main purpose and should not be automatically applied for a completely different purpose in a different set of circumstances purely to suit the convenience of local authorities in bringing legislation before Parliament.

Liability for the maintenance of walkways is clearly laid down in Clause 15(1) and (2). It is there stated that a local authority shall not be exempt from liability for the non-repair of the surface of the walkway. The responsibility for the maintenance of walkways remains with the local authority.

Why, then, are the promoters of the Bill attempting to limit the rights of citizens who use walkways by putting limitations on the legal liability for the maintenance of walkways? Will the promoters tell the House the reasons lying behind this? The House of Commons and the citizens of London are entitled to know why the Greater London Council and the London Boroughs Association seek to limit their liability in this way.

The Bill defines a walkway as: a way or place on which any person may have access on foot and may pass and repass as of right. Walkways may be at ground level, above ground or below ground level. Unlike the situation in 1961, when the Highways (Miscellaneous Provisions) Bill was before the House, no walkway can come into existence without a deliberate act of a local authority in passing a formal resolution dedicating a walkway for public use.

7.45 p.m.

At present no walkways, within the meaning of the Bill, are in existence in the adiministrative area of the Greater London Council, and none can come into existence unless at the express wish of a local authority. We are not dealing with the situation of putting into a proper state of repair a vast existing network of walkways, which would put a physical and financial strain upon public finance, by asking the House to take overnight action to create a legal responsibility for local authorities to bring walkways into a proper state of repair. Yet the Greater London Council, by the insertion of subsection (4), is relying upon provisions which were inserted into an Act of Parliament to provide specifically for that situation in respect of thousands of miles of highways, streets and footpaths where it would have been unreasonable overnight to throw the responsibility upon the local authority.

The 1961 Act was primarily concerned with removing the ancient injustice of the doctrine of non-feasance, which was that the local highway authority could not be held liable in law for non-fulfilment of its statutory duty. That scandalous position was rightly swept away in the 1961 Act. The Greater London Council should not lift from the 1961 Act provisions which were designed for a completely different purpose and apply them to walkways which legally are completely different from highways.

Mr. John Hunt (Bromley)

Before the hon. Gentleman gets indignant about this, may I ask whether he sees significance in the fact that neither the Minister of Transport nor any other Government Department has objected to these provisions?

Mr. Wellbeloved

The Minister of Transport and the Minister of Housing and Local Government can sneak for themselves. It is often the duty of a Member of this honourable House to speak up where others fail to do so. I am tonight taking that mantle upon myself. I may be presumptuous in so doing, but I speak on behalf of all those people, young and elderly, who may have an accident upon a walkway created by the Greater London Council or one of the 32 London boroughs and find that, because of the provisions in the Bill, they cannot obtain prover redress in the courts. If some hon. Members do not take seriously the carrying out of their responsibilities, that is no reason why the hon. Member for Bromley (Mr. Hunt) and I should follow their example.

Mr. Frederick Silvester (Walthamstow, West)

Surely what a court must consider is the state of repair in which a reasonable person would expect to find a walkway. Is that not sufficient safeguard for the pedestrian?

Mr. Wellbeloved

The hon. Member for Walthamstow, West (Mr. Silvester) shows a great interest in these matters and we have had many conversations on this subject. I shall be coming to the point he has raised.

It is clear that there is little comparison between highways and walkways. Highways and walkways vary in character and in location. Some highways are to be found in desolate areas and are used infrequently; others are subject to flooding or erosion by weather and all sorts of other conditions. Walkways are not subject to similar considerations.

The Greater London Council or any London borough under the powers in the Bill surely would not contemplate constructing or dedicating a walkway unless there was a real need, be it practical or recreational, that is clearly established, such as a link with the shops. For example, in a residential area it would be reasonable to have a walkway; indeed, under the Bill a shopping precinct would be a walkway. A walkway might provide access to a residential area or to an open space or there could be a walkway along the Thames to provide views of that great river. But for whatever reason the boroughs decide to dedicate a walkway, it should be based on need and reasonable use by the public. It is essential that this need is considered by local authorities.

The main walkways will tend to be completely new constructions to be handed over by contractors to local authorities in first-class condition, or possibly conversions which will be brought up to a good condition before being handed over. They will start off in a state of good repair, and it is right that the local authority which dedicates a walkway should have an unfettered and full responsibility to keep up that state of repair. For these reasons I shall seek to delete the subsection.

It can be argued that because the walkways may connect up with a highway or street it is necessary to have a uniform standard under the law to apply to highways and pavements as well as to the walkway. There could be a great variety of combinations of highways, streets and bridle paths, and it might be argued that a common set of laws could cover the whole range of these thoroughfares. No doubt this argument will be put forward by the promoters, but it is not tenable for three main reasons.

First, as I have said, the definitions of "highway" and "walkway" are completely different. Second, the provisions in regard to walkways and highways are entirely different, with a completely different purpose. Third, it should be the aim of public authorities to raise standards rather than lower them. If it is possible in a Bill to ensure that local authorities meet a higher standard of responsibility in relation to people using public facilities, then a higher standard, not a lower standard, should be laid down.

I was asked whether or not it is clear that the situation is covered by Clause 15(4) as to what is reasonable and what a court should take into account. My view is that there should be no limitation, and that one should rely exclusively on subsections (1) and (2) of the Clause. Those subsections provide for the acceptance of full liability and then subsection (4) goes on to limit it.

It is my view—and I hope that it will be the view of the House this evening—that a claim for injury sustained on a walkway should be a matter exclusively for the courts, without any limitation being imposed by the Bill. It is for a court to assess each case on the evidence presented to it by the parties concerned. The court should be under no obligation to take into account defences obtained by a local authority against the interests of its own citizens. It is part of British justice that a court should be unfettered and that each case should be judged upon its merits within the framework of the general law.

The subsection is distasteful since it seeks to establish for a local authority a limitation of liability, a limitation which often will be used against the best interests of the citizens of local authorities in London. Because it fosters the all too familiar pattern of creating "them" and "us" as between a local authority and its ratepayers, I seek the deletion of a provision which is inappropriate, unnecessary and unjust. I hope that we shall be allowed to divide on this subsection.

Mr. Brian Batsford (Ealing, South)

I hope that I shall not be out of order if, before I turn to the Bill, I say how sorry I was that the previous debate had to be cut short, especially since I had the experience—a rather salutary one to a Member of Parliament—of listening to an official announcement abolishing my constituency.

My hon. Friend the Member for Gloucestershire, South (Mr. Corfield) mentioned the proceedings which had taken place on the Bill. If I may run through them briefly, the Bill was the subject of a Second Reading debate on 20th February. The Bill was in the capable hands of my hon. Friend the Member for Hornsey (Mr. Rossi) as the G.L.C.-nominated Parliamentary member, and received a Second Reading on that date.

The Bill was then sent to an Opposed Private Bill Committee. It turned out to be unnecessary since the petitioners against the Bill reached agreement privately with the promoters. Instead, on 7th May the Bill went before an Unopposed Private Bill Committee. A number of Amendments were made, and at the conclusion of the Committee stage the Bill was returned to the House.

The Solicitor to the Greater London Council wrote to the hon. Member for Erith and Crayford (Mr. Wellbeloved) specifically answering some of the points which the hon. Member had made on Second Reading. The letter pointed out that fairly extensive Amendments had been made embodying many of the principles set out in the interesting report of the Advisory Group on Walkways in the Ministry of Housing and Local Government. For, the record, the date of that letter is 12th May. It concluded with the words: I hope that this information will assist you, but if any points require clarification please do not hesitate to contact me. 8.0 p.m.

Unfortunately, the hon. Gentleman did not reply to that letter, A week later, on 19th May, he put this blocking Motion to the Report stage of the Bill. There were subsequent letters dated 21st May and 3rd June. I am sorry that the one to which he referred was not dated, but the copy of it which I have bears the date 3rd June. At the end of that letter, the solicitor to the Council said that if he would like a discussion on the matter representatives of the London Boroughs Association and of the Council would be pleased to meet him at the House of Commons, and he was asked to suggest a time.

Mr. Wellbeloved

I am sure the hon. Gentleman wants to be fair. As hon. Members know, it is normal practice when objection by an hon. Member is known for the promoters to take steps to ask for a meeting. That was not done on this occasion. It started off on the basis of correspondence and continued on that basis.

Mr. Batsford

I do not want to disagree with the hon. Gentleman, but, as he knows, I myself wrote to him suggesting a meeting.

As my hon. Friend the Member for Crosby (Mr. Graham Page) said on Second Reading, it is a very good thing that the House should have an opportunity of debating these Private Bills. However, as we know, they are the subject of a rather unusual procedure. After Second Reading, very often there remain detailed points, and more private discussions take place between the promoters, petitioners and hon. Members. I am only sorry that the proposed meeting did not take place. On the other hand, the hon. Gentleman made it clear to me, as he has to the House, that his main opposition to the Bill concerned walkways.

My hon. Friend the Member for Gloucestershire, South (Mr. Corfield) raised the subject of walkways, and perhaps I might say a word about them in general because it is a comparatively new term.

The segregation of pedestrians and traffic is now accepted as an essential aspect of urban planning, and examples exist in London at the Elephant and Castle and at the bridge from the Shell building to Waterloo Station. They are planned in connection with the London Museum in the City, and they are extensively planned in the new design for Piccadilly Circus, with the support and co-operation of the G.L.C.

"Walkway" is not another word for a pedestrian precinct. If a street is closed to vehicular traffic, it does not necessarily become a walkway. If a railing is put round a pavement or sidewalk to protect pedestrians from cars and vice-versa, it does not automatically follow that one is creating a walkway. Walkways which are elevated or act as bridges or ramps are a new conception and, as such, require special legislation, and I agree with those hon. Members who have suggested that such legislation should be introduced not as a Private Bill but on a national level and by the appropriate Government Department.

A special report by the Advisory Group recognised and provided definitions for walkways, as the hon. Gentleman has done. But the whole point is that the Advisory Group's Report was available only after the Bill was deposited in Parliament. I understand, however, that the report has been put forward as a basis for general legislation which presumably, ultimately, will be introduced by the Government. In the meantime, it is providing guidance to local authorities which may be considering private legislation. In those circumstances, surely it is right for the G.L.C. to put this walkway legislation into its general powers Bill.

Two other local authorities, the Common Council of the City of London and Newcastle Corporation, have promoted legislation relating to walkways. It appears in Part II of the City of London (Various Powers) Act, 1967, and in Part II of the Newcastle-upon-Tyne Corporation Act, 1968. The proposals in the G.L.C.'s Bill are based on the City of London Act, and they are promoted at the request of the London Boroughs Association. I understand, incidentally, that similar powers are now being sought by Liverpool Corporation in a Bill which is now before Parliament.

To return to the Report of the Advisory Group on Walkways, as I have said, the Bill was deposited in Parliament before that report was published. It is a pity that such an important report should be published in this way and not printed in a smaller format.

I hope that I shall be forgiven for referring to it in one or two detailed respects. In this day and age we are plagued with new names such as "motorway" and "pathway". We are now familiar with "pathway", "footway", and even "causeway". Now we have the new word, "walkway". It would seem from the report that in future everywhere we walk will be known as a walkway.

Paragraph 15 of the report refers to a footpath or street which has been "pedestrianised". That is a terrible word to use. Just because there are no cars on a road and it has gone back to its original use for pedestrians or walkers, I see no reason why it should be referred to as having been "pedestrianised". At the same time, it makes one realise that, with all-day and all-night parking such as one sees in so many parts of London, far too many pavements have been "motorised".

Paragraph 56 refers to the "walkway code". One can imagine with some relish the future compilation of and the debate in this House on a walkway code.

Probably the most important paragraphs from the point of view of this debate are paragraphs 34 and 35. My hon. Friend did not refer to them, but I think that he will agree that they are important. Paragraph 34 says: Public utilities have powers under various Acts of Parliament to break up streets and bridges for the purpose of placing their works in them. These powers were clearly intended to apply to streets constructed on solid ground, and to bridges which carry streets as defined in the relevant legislation. The Public Utilities Street Works Act, 1950, regulates the way in which statutory undertakers may exercise these powers. But although the underlying Acts and the 1950 code of practice deal with bridges, they do not seem entirely appropriate to walkways above ground. Paragraph 35 says: The inadequacy of the existing law to cover the novel problems of walkways, which prompted the Cities of London and Newcastle-upon-Tyne to promote private legislation, dictates a new approach. In paragraph 40, the report states: We are, therefore, in general agreement with the approach of the Cities of London and Newcastle-upon-Tyne that existing powers of planning control should be strengthened so as to enable an authority granting planning permission to require that a building is designed to incorporate, and constructed to carry, a walkway …

Mr. Corfield

I am sure that my hon. Friend appreciates that the approach of the City of London in this matter is wholly different from that of the City of Newcastle-upon-Tyne. The approach of the City of Newcastle-upon-Tyne, in effect, was that walkways shall, as near as possible, be highways. That makes life a great deal easier for the undertakers. The last paragraph quoted by my hon. Friend referred only to planning powers. This has nothing to do with highway powers, which are more closely associated to the needs of statutory undertakers.

Mr. Botsford

I see the point made by my hon. Friend. I was trying to show that the introduction of legislation by those two bodies created a precedent which the Greater London Council has followed.

The whole of appendix 3 of the report, which extends to some seven pages, is devoted to statutory undertakers. But in paragraph 17(b) where the group proposes a code, it states: The rights, however, should not automatically extend to walkways which do not rest on solid ground—elevated walkways … This right was discussed in Committe on the present Bill, and I understand that a meeting was held at which the undertakers gave an undertaking that they would introduce a Bill in the next Session of Parliament to put that right.

Clause 24 is based on Section 19 of the City of London (Various Powers) Act, 1967. But during the passage of the Bill the statutory undertakers, as my hon. Friend knows, strenuously argued that they should have the same rights on elevated walkways and also within buildings. This contention was rejected by committees in both Houses of Parliament. Nevertheless, during the Committee stage of this general powers Bill, an undertaking was given to the Select Committee that a Bill conferring rights on statutory undertakers would be introduced at a later stage.

To delete Part III of the Bill altogether to ensure that the walkway powers are not granted at all is surely contrary to the best interests of statutory undertakers, because very important developments, including walksways, will have to go ahead under the existing powers. This would mean that undertakers would have no rights whatever, under the present law, in any walkway in any London borough.

If, on the other hand, Part III is passed, the undertakers will have, first, immediate rights in ground-level type walkways; second, immediate consultation under Clause 24(3); third, assurance that legislation will be introduced next Session; and, fourth, assurance of consultation with planning authorities on walkways proposals.

I understand that the Multiple Shops Federation, which was extremely interested in this part of the Bill and was the only petitioner against Part III in Committee, now supports the proposals in their present form. I very much hope that my hon. Friends are satisfied with this explanation and will withdraw their Amendment.

I now come to the Amendment put down by the hon. Member for Erith and Crayford, which seeks to delete the section of the Bill on walkways which defines the defence available to borough councils for damage resulting from a failure to maintain the surface of a walkway.

In his speech on Second Reading, which I have reread, the hon. Gentleman also discussed much wider aspects of compensation which, in my view, do not strictly arise on this subsection.

8.15 p.m.

In winding up the debate on Second Reading, the Joint Parliamentary Secretary to the Ministry of Housing and Local Government assured the hon. Gentleman that all the comments that he had made on compensation would be communicated to his right hon. Friend. He also said that his right hon. Friend and any other Ministers involved would be compounding a report on the Bill as a whole and that all the points mentioned in the debate would be looked at closely by the Ministers concerned.

I am sure that the hon. Member for Erith and Crayford is aware that if any Minister had wished to amend this Clause he would have sent a memorandum to the Committee. In fact, if any Minister had wished to delete this subsection altogether, as the hon. Gentleman wishes to do, he would have sent an instruction to the Committee to that effect. That, as we all know, has happened in the past with other Bills—including G.L.C. Bills.

Without wishing to anticipate the wind-up speech of the Joint Parliamentary Secretary, it would seem that—

The Joint Parliamentary Secretary to the Ministry of Housing and Local Government (Mr. James MacColl)

The hon. Gentleman talks about a wind-up speech. I am not winding up. This Motion has nothing to do with me. I am merely, as always, trying impartially and objectively to help the House.

Mr. Batsford

I am grateful to the hon. Gentleman. I was expecting that he would make the final remarks because his hon. Friend the Member for Hayes and Harlington (Mr. Skeffington) wound up on Second Reading.

The wording of the subsection is taken verbatim from Section 9(3) of the City of London (Various Powers) Act, 1967. I have already said that there is a similar provision in the Liverpool Corporation Bill now before Parliament. There is no need for me to remind the hon. Gentleman, because he has mentioned it, that the wording in both is virtually identical with Section 1(2) and (3) of the Highways (Miscellaneous Provisions) Act, 1961, except that the word "walkway" has been substituted for "highway" throughout. It was obviously considered proper that the same standard of liability should attach to a borough council in connection with a walkway as with a highway.

I do not know whether the hon. Gentleman was a Member of this House at the time, but this Bill was introduced as a Private Member's Bill by the then hon. Member for Bury St. Edmunds, Mr. W. T. Aitken, on 24th February, 1961. The subject of the repair of highways was introduced by my hon. Friend the then Member for Bristol, North-West, Mr. Martin McLaren. In this context he explained the difference between "nonfeasance" and "misfeasance".

Mr. Corfield

Malfeasance.

Mr. Batsford

My hon. Friend says "malfeasance". Not being a lawyer, I have never heard of these words before. I turned up the debate in which Mr. Martin McLaren was kind enough to define what these words meant This is relevant to the subject. He said: 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.—[OFFICIAL REPORT, 24th February, 1961; Vol. 635, c. 1102.] I can see that my hon. Friend agrees, as I do, with that definition.

This question was debated at length in the Committee on that Bill in 1961. As a result of a very forthright contribution by Mr. Speaker, the words which we are discussing in Clause 15(4) became law in respect of highways and made a significant contribution to the rights of ordinary citizens, which had not existed up to then. This was accepted. It was warmly welcomed generally in the case of highways, and I should have hoped that it would also be accepted in the case of walkways.

Mr. Wellbeloved

I hope that in his reading of the Standing Committee OFFICIAL REPORT of 17th May, 1961 the hon. Gentleman took particular note of the reasons why the hon. Member for Henley (Mr. Hay), who was then the Parliamentary Secretary, moved the new Clause. He did it to protect local authorities, because they had thousands of miles of miscellaneous types of highway. As the hon. Gentleman knows, this is not the case in respect of walkways, and so the comparison does not apply.

Mr. Batsford

I agree that it is not yet the case with walkways, but I still believe that this step which the G.L.C. has taken in putting these words into the Bill is the right one, and I hope, therefore, that the hon. Gentleman will withdraw his Amendment.

Mr. Graham Page (Crosby)

The Joint Parliamentary Secretary said just now that this had nothing to do with him. I do not think that he quite meant it in that strong term, and if I rise now perhaps I can tempt him to intervene in this debate and let us know some of the Government's thinking on this very important subject.

First, however, I should like to say how sad the comments were of my hon. Friend the Member for Ealing, South (Mr. Batsford) about his own constituency. The House will be a poorer debating Chamber without him, and we are very sad to learn of the possible loss of his constituency.

I believe that in the years to come we shall look back on the development of walkways as one of the major and memorable events of this era. They embody a new concept of putting available space to good purpose, and they do so by the use, as it were, of another dimension in human movement. They embody a new concept of the segregation of human traffic into a new freedom for the walker, freedom from the dangers of the roads and of vehicles on them. They embody not only that new safety for the pedestrian, but also new amenities for the pedestrian, in the open space which they offer, in the outlook, and so on, and they embody a new media for the retail trade.

The importance of the new phenomena of these walkways in our way of life makes it of vital importance that the Government of the day should be alive to what is happening, and ready to act promptly and effectively in adjusting the general law to this new development. At present, the development has been pioneered by the local authorities. First, we had the City of London, then Newcastle-on-Tyne, Liverpool, one or two others which have not proceeded, and now we have before us this Bill. There has been a different approach in those several Bills which I have mentioned. In some cases, as in the present Bill, the rights of the citizen on walkways has been spelled out. In others, such as Newcastle-on-Tyne, the approach has been to say that these are highways, and that is that.

In any new development of this sort, certainly a development of this significance and magnitude, there are likely to be, to say the least of it, teething troubles. There are almost certain to be teething troubles if the operation of the new development comes in piecemeal. That is what is happening with walkways. The principle of walkways is coming into our law in a piecemeal fashion, and one must congratulate the pioneers, the local authorities who are pioneering this, on endeavouring to produce a reasonable code of law. One must recognise that this is just the way in which much of our law has been made in the past—the local authority experiment developing into a general public law. One must recognise, too, that a progressive local authority should not be asked to restrain itself from planning and replanning its town centre merely because the Government have not got down to the job of producing new public law on this subject.

Particular problems have been highlighted in the consideration of this Bill, and I think that they wall into three categories. First, the problems of the users of the walkways. Second, the problems of the properties adjoining the walkways. Third, the problems of the statutory undertakers who, up to the present, have been accustomed to using highways for the purpose of their undertakings and would wish in some cases to use the walkways in the same way.

Going back over those three, so far as the users are concerned the hon. Member for Erith and Crayford (Mr. Well-beloved) has put forward a strong argument for some greater rights in the users than they would have if one treated the walkways merely as highways. I do not go with the hon. Gentleman in that argument. I think that in the Bill, where rights are spelled out in exactly the same words as in the Highways Act, 1961, in respect of walkways on the level the G.L.C. has gone as far as it should, but there are other problems which will present themselves if one is thinking of a comprehensive code of access to, and egress from, walkways. There are the stairways, elevators and escalators to the walkways.

8.30 p.m.

These problems need to be thought out. As for the adjoining owners, their interests in consideration of this Bill were represented by the Multiple Shops Federation, and the problems of the rights of support and maintenance of the walkways were considered, I understand in a co-operative way, between those petitioners and the promoters of the Bill and a satisfactory arrangement reached. That is not necessarily a satisfactory universal code as embodied in the Bill. We shall have to think very hard about the general law for adjoining owners.

With statutory undertakers there is a serious gap in the law left by the Bill because it does not wholly deal with the rights of the statutory undertakers and what use they may make of the walkways. The Government must move rapidly in producing a code of general law applicable to this phenomenal de-delopment of walkways. The Government have the Report of the Advisory Group on Walkways. It is an extremely useful document which can form the basis of legislation.

In the foreword the group says: We have found that the existing general law is not adequate to deal with what will be an increasingly important feature of urban development. We put our report forward as a basis for the preparation of general legislation which we recommend should be introduced when opportunity offers;— Pausing there, I would not leave it until "opportunity offers". I hope that the Government will make an opportunity to bring in general law at the earliest possible moment. The report goes on: and meanwhile as a guide to those local authorities which may be considering private legislation. In appendix 2 of the report a lot more problems are mentioned in summarising the group's conclusions. The appendix lists a number of these problems, such as responsibilities of local authorities for walkways, expenditure on them, procedure for creating them and defining the rights of those who use them, planning control and the imposition of what may be called positive covenants binding the adjoining owners, the construction of walkways and whether compulsory powers should be given to local authorities for acquisition of the right to erect a walkway, and, in particular, compensation for those affected by the construction of walkways.

I hope that when this code of law is introduced we shall see that compensation applies not only to the owner who has had a portion of his property taken from him to construct a walkway but also to adjoining owners who may suffer by having the walkway pass by their window. There are major problems to be dealt with, summarised in the appendix. They are also dealt with at some length in the report. My hon. Friends have indicated the value of the report, and I hope that the Parliamentary Secretary will be able to tell the House that the Government have in mind bringing forward public legislation at a very early date.

My hon. Friend the Member for Ealing, South has said that the Greater London Council has given an undertaking to bring in the supplemental Bill next Session to deal with the rights of statutory undertakers. That will be necessary, because I cannot imagine that the present Government, or any Government, could move so rapidly as to have a Bill ready by early autumn. There will probably need to be a filling of the gap by another Private Bill from the G.L.C. I hope that the Government will be able to follow that up quickly with general legislation. This is an extremely important subject. It is something new which will change our way of getting about, our way of life, I believe, for the good.

8.35 p.m.

Mr. MacColl

When I intervened earlier to say that I had nothing to do with the matter I did not mean to imply that I was at all indifferent to the walkways and their importance. All I meant to imply was that this Bill was in no sense a Government Bill. It is promoted by the Greater London Council and, as is always the case in these matters, it is for that council to convince the House that the Bill is necessary. All I can do is to deal with some of the points that have been raised, and to give the House some indication of my views.

I was sorry that the hon. Member for Gloucestershire, South (Mr. Corfield) should have begun by knocking me about so much, saying that I was lacking in assiduity. Coming from a predecessor, it was a very hard blow, and not calculated, I thought, to invite my support for an Amendment which he moved with such skill.

I do not think that the hon. Gentleman's criticism was fair. I remember that I spoke in the debate on the City of London (Various Powers) Bill in 1967. It was then quite clear that we needed to know a great deal more about the subject and get a good deal clearer an idea of the right approach to it. The result was that my right hon. Friend invited the working party to which reference has been made to advise him on what should be done. It was a difficult job and it took a long time, but the working party has produced, as everyone has agreed, an extremely valuable and helpful report. I have to say yet again that the advice and help we get from those whom we invite to consider these things is of enormous value, and we owe a very great deal to them.

I have referred to the remarks of the hon. Member for Gloucestershire, South on the subject of my laziness, but when the hon. Member for Ealing, South (Mr. Batsford) criticises the format of the report I feel that I am dealing with someone whose views I must take with very great respect indeed. I am sorry if, in his view, we did not keep up to those great standards of which he spoke, but we did produce a report which is available for study, and should be studied.

I was asked about the likelihood of our producing general legislation within the immediate future. I do not think that that is very likely. That is not because we have shelved the problem. We do not regard it as being satisfactorily dealt with by an inquiry, and nothing more. We are continuing our inquiries, consultations and discussions. Nevertheless, it will be quite clear from the debate and the general background that this is a very contentious matter, and that we shall not by any means get a general view which everyone will accept. As the hon. Member for Crosby (Mr. Graham Page) put it, on the three matters he raised there are many conflicting interests which have to be considered before we reach a final decision about any legislation.

We certainly hope to be able to produce fairly quickly a code—using the word in its looser sense—which could be used as an indication of what we think are the points that local authorities should keep in mind in preparing Private Bills of this sort. They will have to take into account not only the views of statutory undertakers, but those of bodies like, for instance, the Multiple Shops Federation, and of the planners—

Mr. Graham Page

I am obliged to the Parliamentary Secretary. I say at once to him that a code like that would not be satisfactory—merely an advisory code of points for local authorities to put in their Bills whether or not they wished to do so. I press again for an alteration in the general law.

Mr. MacColl

An alteration in the general law is the ideal at which we should aim, but I suggest that we should not leave it at that and not do anything until that aim can be achieved. Certainly, I would not quarrel with the hon. Gentleman about the desirability of having general legislation. However, I would not like to wait until then before taking action, and I suggest that it is useful for us to put forward certain views that we have collected on this issue.

This brings me to the question of the Bill. We made our view clear in the report which we put to the Select Committee. We said: In the Minister's view, this part of the Bill in the form as deposited should not be allowed unless the Committee are satisfied that the promoters' requirements are so urgent that this part of the Bill cannot be withdrawn for further consideration The hon. Member for Gloucestershire, South said, accurately, that there were difficulties in the procedure. It was not possible to extend the scope of the Bill, It is, therefore, correct to say that the Greater London Council gave an undertaking about producing another Measure to meet some of these points.

There are two courses which the promoters could have taken. First, they could have gone to the trouble, and through the complicated procedure, of trying to get an extension of the scope of the Bill; or, secondly, they could have withdrawn the provision and brought forward a comprehensive set of provisions for a Bill next Session, which, in any event, they will produce.

I think that the second alternative would have been the best. It would have been better for the Government Department, better for possible petitioners and better for Parliament, since any interested parties could have considered the whole aspect of the issue at one and the same time and not be having two bites at the cherry.

If it is accepted, however, that there is an urgent need for the Bill, then the House may feel that that is a formidable enough objection. I understand that it is not correct to say, as the hon. Member for Gloucestershire, South said, that there was no inquiry into the urgency of the matter.

Mr. Corfield

I did not challenge that, but merely referred to the suggestion.

Mr. MacColl

The Select Committee probed this matter with a great deal of care to satisfy itself.

Nor do I suggest that the hon. Member for Ealing, South gave a clear answer to the question of urgency. He rather left it the way it is, saying that one must accept the Select Committee's view. I am not really in a position, not having read any of the proceedings on this score, to say how strong was the question of urgency.

This seems a matter in which the Department, as a Government Department, should not interfere. The House must judge the urgency of the issue. The House must balance the views, put forward effectively in this debate, between those who think that it would be better to wait and those who think that the matter is so urgent that we should take what would be a less satisfactory course and go forward with this part of the Bill in its rather unsatisfactory state. I have no reason not to accept the undertakings which have been given by the G.L.C., but it is a matter for the House to judge.

In reply to my hon. Friend the Member for Erith and Crayford (Mr. Well-beloved), I personally think that these walkways should be considered as highways.

That is the best way of dealing with the matter. If that happened many difficulties would not arise. They arise only because the G.L.C. has decided to have this rather curious mixture. It is for this House on this basis to make up its mind on the Amendment.

Mr. Corfield

I am always reluctant to divide the House on a Thursday night, when there is a very thin attendance. I thank the Parliamentary Secretary for what he has said. I hope that he will endeavour to persuade the G.L.C. to give an undertaking such as I suggested, that further consultation will take place and that there will be arbitration, if necessary, through the responsible Ministers in each case. Then everybody will be happy.

It would be much more satisfactory if we could have that assurance, but even without it, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.