DAMAGE TO ROADS (Hansard, 17 February 1970)

§ Dr. Dickson Mabon
I beg to move Amendment No. 17, in page 10, line 30, after 'tree', insert 'traffic sign, milestone'.
Perhaps it would be convenient to discuss at the same time Government Amendments No. 20, 21 and 22.

Mr. Deputy Speaker (Mr. Harry Courlay)
That would be convenient.

§ Dr. Mabon
These Amendments fulfil the Government undertaking in Committee on 22nd January, reported in columns 168 and 170, to table Amendments on Report to cover damage to, 266 or interference with traffic signs. Opposition Amendments with the same intention were withdrawn on that assurance.
The Opposition Amendments referred to "road sign" as well as "traffic sign". This is unnecessary since the definition of traffic sign in the Road Traffic Regulation Act, 1967, covers all signs on roads. On the other hand, the comparable English provision contained in Section 117(2)(c) of the Highways Act, 1959, also refers to milestones, and it is desirable to be consistent. The Amendments in lines 30 and 35, therefore, have the effect of making it an offence to damage or deface a traffic sign or milestone.
The other Amendment in line 35 makes it an offence to interfere with a traffic sign, and so on, as distinct from damaging it. Possible examples are altering the position of a direction post or removing masks from traffic lights which are not in operation.
The fourth Amendment—No. 22—defines traffic signs in terms of the Road Traffic Regulation Act.

§ Mr. Buchanan-Smith
Again, we are very glad to be able to thank the Government for accepting the spirit of the Amendments we moved during the Committee stage. One specific point I should like to raise is whether this Amendment, as now drafted, covers, as we are asking in Committee, all forms of what might be generally described as road furniture. One matter which I must confess did not come to my mind at Committee stage but has been brought to my notice since, is cats eyes. Are they covered under this Amendment? It is not unknown for children to remove them from the road and play bowls with them. This has happened on occasions. Are cats eyes in the road or on the road, or do they come under a form of sign? This would be something interfering with road safety, and if we can get a clarification on this point it will reassure me completely on the matters which we raised in Committee.

Earl of Dalkeith
I do not want to appear ungracious by being critical after the Government have been so responsive over this Amendment. But I should like to suggest that we should just read through this particular phraseology as it will be after it has been amended in 267 accordance with Amendment No. 17. It will read as follows: If a person, without lawful authority or excuse … (b) paints or otherwise inscribes or affixes upon the surface of a road or upon any tree, traffic sign, milestone, structure or works on or in any road, any picture, letter, sign or other mark …". How on earth can we have a tree on or in any road? Why cannot we use the simple phrase "or by the side of the road" as is the case in (d). That would seem to me to meet the point much more satisfactorily. It is ludicrous to think that we are going to find all these things on or in a road. They will be by the side of the road.
I am sorry that we were galloping through the Bill at Committee stage so fast that I could not spot these defects. They are only now coming to light. Could the hon. Gentleman undertake to look——

Mr. Deputy Speaker
Order. The hon. Gentleman is going wide of the Amendment before the House.

§ Dr. Dickson Mabon
In that case, it may be that I need not answer what the noble Lord has said. The noble Lord is making matters more difficult. I should not have thought that to use the words "by the side of the road" was a good idea, because the words imply that it is not on the road or in the road, in which case how can it be an offence?
The hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) must have had a wicked boyhood, because I did not know that you could play bowls with cats eyes. I hope that his remarks are not reported in the newspapers, because one would not want to direct attention of children to this wicked practice.
The definition in Section 54 (1) of the 1967 Act is In this Act 'traffic sign' means any object or device, whether fixed or portable, for conveying, to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description specified by regulations made by the Minister and the Secretary of State acting jointly or authorised by the appropriate Minister, and any line or mark on a road for so conveying such warnings, information, requirements, restrictions or prohibitions. So cats eyes are in.

§ Mr. Brewis
I beg to move Amendment No. 18, in page 10, line 32, leave out paragraph (c).

Mr. Deputy Speaker
I suggest we also discuss Amendment No. 19, in page 10, line 32, leave out '30 metres from the middle' and insert '5 metres from the edge'.

§ Mr. Brewis
We want it to be quite clear what is being laid down and what the Government have in mind on these offences. If we are dealing with a motorway, 30 metres from the centre of the road may well be only just on the verge or even on the tarmac which may well be damaged by a fire. The suggestion contained in Amendment No. 19 which provides for a distance of "5 metres from the edge" of the road is much the better solution.
The main difficulty is that with nearly all roads 30 metres would be well into the field where it may well be desirable for people to burn hedge clippings, branches of trees and other rubbish.
It seems unlikely that any sparks from such a fire would damage the road surface. I know of no occasion when that has happened. If the wind is in the wrong direction and smoke blows across the road, it may well result in an accirent and can be extremely dangerous, but that is not causing damage, at least directly, to the surface of the road, although, of course, it may cause indirect damage. I move the Amendment in order to obtain more explanation as to what is meant by these criminal offences we are creating.

Earl of Dalkeith
I support my hon. Friend the Member for Galloway (Mr. Brewis) and speak particularly in the context of Amendment No. 19, which stands in my name. I believe that the words I suggest there would be much clearer to people who have to interpret our legislation. I hope that the Minister of State will forgive me if I fire a barrage of questions at him.
How did he arrive at the figure of 30 metres rather than five or ten, for example? Why did he choose to take the measurement from the centre instead of the edge of the road? In a later Clause, there is reference to the edge of the road or the edge of a made-up carriageway, so presumably there is no 269 difficulty about legal definition. Surely, if a person wants to light a fire near a road, it is far more dangerous if he has to walk to the middle of the road and pace out 30 metres than if, starting at the edge of the road, he paces out five metres.
I was in my constituency during the weekend and went round a part of it where people have gardens. I calculated that, under this provision, none of these people would be able to burn leaves in their gardens. That would be a pity—indeed, ludicrous. But it would be even more foolish if my constituents had to walk to the middle of the road to measure out where they could burn leaves, whether they were the right distance away to do so. What sort of damage does the hon. Gentleman envisage by someone lighting a fire, say, 20 metres from the centre of a road? Would it burn a hole in the road? What does he expect to happen? This is a peculiar provision.
Surely the important thing here, as my hon. Friend mentioned, is to try to prevent people who start fires near the road from blinding motorists by covering the road with smoke. If that is the intention of the subsection, would it not be more sensible to have a provision laying down that one must not light a fire upwind of a road within a certain distance? I do not think that that point is made in the provision as it stands.
Let us take ourselves out of the town and into the countryside and think of the hedges which run alongside roads throughout the country. These hedges have been kept clipped and trimmed and someone has to burn up the clippings. It is not going to be easy to cart those clippings into the middle of a field to burn them. It is more convenient to burn them quite close to the road. This provision will make complications in the countryside. Will Clause 17(d) prohibit the cutting of a hedge even if the hedge does not belong to the highway authority? Someone else may own the hedge. If one is interpreting that provision accurately, presumably one would not be allowed to cut one's own hedge. I suggest that that would apply to the hon. Member for Dunbartonshire, East (Mr. Bence) and his bungalow. He might find that his hedge is within 30 metres of the centre of the highway and he would be precluded from cutting it.
270 Would the Minister of State be so good as to look at this matter again? The subsection seems complete nonsense but, if he cannot eliminate it altogether, would he at least accept an Amendment like mine in another place, introducing a measurement of five metres from the edge of the road?

§ Dr. Dickson Mabon
I thought for a moment that I must be listening to the annual general meeting of the Edinburgh, North Unionist Association bringing forth complaints about all these monstrous things which are being done to us in not being allowed to burn leaves, and the rest of it. The hon. Member for Edinburgh, North (Earl of Dalkeith) has misunderstood the Bill. He should read Clause 17 carefully. It says: If a person, without lawful authority or excuse … that implies that there is some lawful authority and excuse to do some of these things— (c) lights any fire within 30 metres from the middle of a road and in consequence thereof the road is damaged … Two things must happen. A fire must be lit within 30 metres of the middle of the road and damage must be caused to the road in consequence. The offence is only committed if the fire damages the road—that is to say, if there is physical damage to the road, an offence is committed. So, if someone lights a fire in his garden and that garden happens to be within 30 metres of the centre of the road, how can he do damage to the road if the road does not go into his garden, so to speak? It does not follow, therefore, that this offence can be caused by the innocent gardener or hedge clipper busily trying to dispose of clippings.
On the other hand, if the hon. Gentleman had his way, and his Amendment were accepted, it would mean that one could not burn the clipping by the side of the road. The side of the road, as we have said, is not on the road. It is by the side of the road. But it would be further than by the side of the road—the fire could not be within five metres of the side of the road—that this offence could, in his eyes, be committed. He would be imposing a greater tyranny than he imagines exists in the Bill. I notice that he is alone in supporting his Amendment and I understand why. 271 The Amendment would be even more undesirable than Amendment No. 18.

§ Mr. Brewis
As a corollary of what the hon. Gentleman says, supposing someone burns heather more than 30 metres from the centre of the road but damages the road because of the growth of the fire. Is that not an offence?

§ Dr. Mabon
That would probably be an offence under some other Statute. It could be argued that the fire was lit and swept into the area within 30 metres. But the question of whether the person actually lit the fire within 30 metres would not be a matter for me but for those dealing with the charge. There are sufficient provisions in other legislation to deal with those who light fires outwith this area and cause damage of different kinds.
I was asked where I got the 30 metres from. Thirty metres is 97 feet, which is nearly 100 feet, which is the old provision under Section XCVI of Schedule C to the Roads and Bridges (Scotland) Act, 1878. It is a distance we have always had in Scotland. It is not the English distance but I thought it right to reenact the Scottish distance, which has stood the test of time well. I see no reason to depart from it. I was also asked about the phrase, "the centre of the road". This is a re-enactment of the phrase, "of the centre of the road", contained in the 1878 Act.
Thus, at best, Amendment No. 19 is ambiguous and, at worst, a complete misunderstanding of this Clause. I do not think it right and fair that persons who commit damage to a road by lighting fires on the road should not be regarded as having committed a criminal offence. I think that they have. One thinks here not only of damage to the road but of damage and danger to the traffic. It is a terrible thing that the Conservative Party should appear to be in support of arsonists.

§ Mr. Speaker
Order. The Minister of State must decide to which hon. Gentleman he is giving way.

§ Dr. Mabon
My hon. Friend, with respect.

§ Mr. Speaker
Apparently, both hon. Members are his friends. The Earl of Dalkeith.

Earl of Dalkeith
Many roads are ten metres wide. Thus, the centre of the road is five metres from the edge of the road. Therefore, 30 metres from the centre of the road takes one 25 metres beyond the edge of the road. As my Amendment suggests a distance of five metres from the edge, the hon. Gentleman is being five times as tyrannical as I am.

§ Mr. Bence
For the purpose of the measurement of 30 metres from the centre of the road, is a dual carriageway treated as one road or two?

§ Dr. Mabon
We would have to treat it as one road, most certainly. If my right hon. Friend the Member for Edinburgh, East (Mr. Willis) were present we could have the "50 metres on either side" argument. But the noble Lord is still misunderstanding the point. If there is no road within 30 metres of the centreline, there can be no prosecution because there can be no damage to a non-existent road. But if a portion of the road is within 30 metres and on that portion a fire is lit and damage is caused to the road, then a criminal offence has been committed.
The noble Lord keeps missing the point. If he lights a fire five metres from the legal end of a road, that is at the side of it, he does not cause any damage to the road. How could he? Therefore, why should it be a legal offence to do so, unless there is some other enactment applying? The noble Lord is normally quite bright. If such a case were raised in court it would have to be dealt with under some other enactment, but here we are dealing with highway legislation, where damage occurs to a road as a consequence of a fire having been lit. We are saying that in those circumstances there should be a criminal offence. To amend this provision as is suggested by the hon. Member for Galloway (Mr. Brewis), or eliminating it, as suggested by the noble Lord, does not at all meet the point. It would be quite wrong not to have in here this section which has stood the test of time for so long 273 and has been a very considerable deterrent to this kind of activity.

§ Mr. Wylie
Can the right hon. Gentleman say whether to his knowledge, there has ever been a prosecution under this Section of the 1878 Act?

§ Dr. Mabon
Without notice, I cannot answer that question. It is nearly 92 years since that Bill was passed in this House. I cannot say how many prosecutions have taken place under it.