THIRD READING. (Hansard, 11 July 1893)

LORD MONKSWELL
said, that after consultation with the Lord Chancellor he had determined to make the definition of "nuisance," intended originally to apply only to Scotland, applicable to the United Kingdom. He therefore proposed, in line 9, after the words "jagged projections," to insert as an Amendment that putting up barbed wire which is a nuisance to highways means— Barbed wire which is dangerous to persons or animals lawfully using such highway.

§ LORD HALSBURY
said, the only objection he had ever had to those words was that they might be misunderstood. The word "dangerous" would mean to lay people something injurious to or affecting life or limb; but that, of course, was not the true meaning of a nuisance to a highway. If a person's clothes were liable to be torn, or if an inconvenience were caused to anyone, that would be a nuisance, and, therefore, unlawful. That would put upon Magistrates the necessity of giving an effect to the word "dangerous" which people would not generally entertain, though, no doubt, it was quite applicable in such a case. The difficulty he had felt was that it might be misunderstood. He bad, however, no wish to suggest a further Amendment.

§ THE LORD CHANCELLOR (Lord HERSCHELL)
said, the difficulty was that, as regarded Scotland, it was found essential to have a definition, and it was, therefore, proposed to insert these words, 1254 retaining the word "nuisance" alone as regarded England, and then adding the definition in reference to Scotland, that definition not to be applicable to England or Ireland. It seemed, however, better to have the same definition applicable to all three countries.

§ THE MARQUESS OF SALISBURY
said, it would surely be an imprudent proceeding to enact words which would not carry out the intention of Parliament merely for the sake of avoiding what the noble and learned Lord had pointed out was phraseology which was a little awkward. The phraseology of all Statutes appeared to be a little awkward, and probably this would be no worse than others in that respect. What they wanted to ensure was that the object of the Legislature should be attained, and if the object was not attained the Debate had better be again adjourned until they had found the magic words.

§ THE LORD CHANCELLOR
said, he, for his own part, preferred the definition, so that the word "nuisance" might be interpreted in the same way, because the Statute, if this Bill passed into law, would have to be interpreted by a number of Magistrates, and this definition would be more likely to lead to the meaning of Parliament being carried out than if the word "nuisance" stood alone. He therefore supported the noble Lord's Amendment.

§ LORD THRING
said, he was aware the noble Marquess thought all legal language ambiguous, and every Act badly drawn; but it was rather hard upon his noble Friend who had charge of the Bill to say that in the present case.

§ THE MARQUESS OF SALISBURY
had not said it was ambiguous, but that the phraseology was awkward.

§ LORD THRING
said, substituting that word the noble Marquess seemed to be of opinion that the phraseology of all Acts of Parliament was awkward.

§ LORD HALSBURY
Of recent years.

§ LORD THRING
thought that was not quite the case. The object was that the word "nuisance" should be defined to mean dangerous or injurious—that was why these words were used extending it. He thought when the word "nuisance" was introduced it was not apt for the purpose; but now what was the 1255 difficulty? It was, no doubt, a little awkward, as the noble Marquess had said; but awkward though it might be, the object was only to extend the definition by saying it meant dangerous, or injurious, or inconvenient, or any other word which the noble and learned Lord thought would express his meaning. There was really no defect or difficulty in the drafting in the present instance.

§ THE EARL OF CRANBROOK
suggested that, as they all wished to arrive at a definite conclusion on the matter, the word "injurious" to persons or animals using the highway might be adopted.

LORD MONKSWELL
had no objection to that. The only difficulty was that "dangerous" was the word used in the other House.

§ LORD WATSON
thought there was not the least necessity for the Bill in Scotland, as the law there was quite sufficient to put down a nuisance arising from the erection of these fences along highways; but as this Act was to be applicable to Scotland, occupiers in that country should not be placed in a worse position than in England. If the word "nuisance" were left undefined, it would certainly be read by some as implying what it did in other branches of the law—merely discomfort, or inconvenience, or annoyance to persons using the road. He did not suppose it was Lord Halsbury's object, in introducing the word "nuisance" into the Bill, that it should be read in that sense. It was really a question for English lawyers, and surely his noble and learned Friend could put it into intelligible English. For his own part, he took no exception to the definition of the word "dangerous" given in the other Bill; but if that was objectionable he had no objection to "injurious," if that commended itself to the noble and learned Lord, who understood the meaning of that word as applicable to highways, so long as the definition for both countries was the same.

THE EARL OF BELMORE
said, the Public Health (Ireland) Act had a number of definitions of "nuisance" which would not apply to the present case, and some special definition was required as regarded these barbed wire fences, otherwise the Magistrates, many of whom, since the qualifications were done away with, possessed but little education and no legal knowledge, would be puzzled how to in- 1256 terpret the Act, and it would have no effect whatever.

LORD MONKSWELL
said, he had consulted the Irish Office, and had been told that unless the procedure was assimilated to that under the Public Health (Ireland) Act, 1878, there would be no sufficient means of enforcing this measure. In deference to the wishes of Lord Watson, he proposed to put in a few words founded on a section in the Public Health Act, 1875. With those words introduced into the Bill their Lordships would find that the provisions for enforcing summary orders under this Act would be sufficient.

THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR INDIA (The Earl of KIMBERLEY)
said, that whether the word "dangerous" or "injurious" should be inserted turned upon whether their Lordships wished to largely extend the operation of the Bill or not. "Dangerous" was more limited, and "injurious" would be much wider. Unless really dangerous there was no necessity for interfering with these barbed wire fences; and as "injurious" would have a very wide application "dangerous" seemed the better word.

§ THE EARL OF CRANBROOK
said, injury to people's clothing was a matter for consideration, and such fences might need removal for that cause. That was his reason for suggesting "probably be injurious," to show that Magistrates must take a reasonable view of the matter.

§ LORD HALSBURY
said, if a fence was calculated to tear people's clothes and to make the highway difficult, or inconvenient, or annoying to people, or to prevent them going safely along it without injury to their clothing, that would constitute in England a nuisance. He was sorry if the jurisprudence of Scotland was so awkward, to use the noble Marquess's phrase, that it did not apply itself to a very common instance of annoyance under the Public Health Act.

LORD MONKSWELL
said, he had no objection to the Amendment.

LORD MONKSWELL
said, the next Amendment was purely consequential. Words not required at the end of Clause 3 were inserted in regard to the removal of the wire "or taking such precautions as aforesaid." He moved to strike out all the words at the end of Clause 3 after "occupier to," and to insert "to abate such nuisance" instead.

LORD MONKSWELL
said, a further Amendment had been suggested by Lord Watson. Immediately after the words "abate such nuisance" he proposed to add (which would apply to the United Kingdom)— ("and on the occupier's failure to comply with such order within a reasonable time the Local Authority may do whatever may be necessary in execution of the order, and may recover in a summary manner the expenses incurred in connection therewith.")