HL Deb 26 June 1893 vol 14 cc3-10

Amendments reported (according to Order).

LORD STANLEY OF ALDERLEY

said, he was sure the noble Lord in charge of the Bill (Lord Monkswell) would not dispute the value of the maxim, "Practice what you preach"; and would like to know whether he was aware that there were from 30 to 50 yards of barbed wire in one of the approaches to Battersea Park under his jurisdiction and belonging to the County Council? He saw it last Wednesday week, and it was a little height above the ground, so that persons going out that way in a crowd towards the Albert Bridge must get their coats torn. Perhaps the wire had been put up for the purpose of preventing people coming up from the river and stealing the large stones from Burlington House; but, at all events, the noble Lord ought to come to the House with clean hands in moving a Bill of this kind.

LORD HALSBURY

said, he did not know whether the noble Lord intended to move an Amendment upon that, or possibly he might bring in a Bill of his own if he was one of the victims.

Clause 2.

*LORD MONKSWELL moved— In page 1, line 17, after ("1878") insert ("the county council"), and after ("committee") leave out ("of a county council") and insert ("thereof"). This Amendment had been thought desirable, because there were some Councils in Scotland which had not formed District Committees. He, therefore, proposed to say "the County Council or District Committee thereof." That, he thought, would do away with the objection taken by Lord Balfour of Burleigh on the subject.

Amendment agreed to.

Verbal Amendments.

Clause agreed to.

Clause 3.

LORD HALSBURY

said, the Amendment just moved by the noble Lord reminded him of one point which he would mention now where a question might arise if the County Council were themselves the occupiers—notice having to be given to the occupiers. However, this was not, of course, the final stage of the Bill. He had an Amendment to substitute "nuisance" in this clause for "dangerous to persons or animals lawfully using the highway." The effect of the Amendment was to strike out words which were inconvenient as regarded giving a description of the wire and to substitute what was proposed in Standing Committee, that was to say, words which were familiar to every lawyer and every Magistrate who had constantly to construe them, "nuisance to the highway." It was somewhat technical, but was a simple mode of describing what was intended to be dealt with as a nuisance. He had received representations from both sides of the House upon the subject since it was last under discussion urging that something should be done to render more simple the meaning of the language used. On one side it was said that a great many persons, including noble Lords and others who were fond of field sports, were very much disposed to regard the wire only, and not the nature of the wire, in reference to the use of the highway—that any wire at all was to them an abomination which they wished to get rid of. That he could well understand. The language of the Bill, certainly in regard to highways, seemed to point to the wire; whereas, if the words he suggested were adopted, it would not only be a question of the erection of the wire, but the situation, height, and position of the wire in reference to the highway. All those things would be matters for the tribunal to consider. By adopting these simple words, which were familiar to the Statute, the difficulty would be got rid of which might arise in construing the words as they stood, which seemed rather to point to the dangerous character of the wire itself than to the combined effect of the situation, height, and so on, of the wire in reference to the public highway. That was the object of the Amendment; and those who had written to him on the subject, referring to what he had stated on the introduction of the Bill, had expressed themselves as content with words which should apply to the nuisance to the highway. No doubt the noble Lord's words would make a nuisance to the highway, but the clause would be more easily construed if the familiar Common Law definition of what was intended to be abated were used instead of them.

Amendment moved, In page 2, line 1, to leave out ("dangerous to persons or animals lawfully using") and insert ("a nuisance to").—(Lord Halsbury.)

LORD MONKSWELL

said, he did not feel competent to express an opinion in the presence of noble and learned Lords as to whether or not the words proposed were better than those in the Bill; but he would suggest, ought not the clause to run "nuisance to persons or animals lawfully using the highway."

LORD HALSBURY

said, the wire was not a nuisance to the persons passing along the highway. That was the object of the Amendment, because it comprehended the situation of the wire as well as the passing of the person or animal.

THE LORD CHANCELLOR (Lord HERSCHELL)

said, he was not sure that this Amendment would be more readily understood than the words in the Bill, which entirely indicated what was the object in view. Though it was perfectly true that in law a nuisance was quite understood by lawyers, the first question was in regard to the Local Authorities, whether it would be always so understood by them, they not being lawyers. If this were a matter merely to be dealt with by the lawyers, he would agree to the proposal, but that definition would not be better or easier for non-legal persons.

LORD THRING

asked the noble and learned Lord whether "nuisance" would really be better in connection with highways? Nuisance to highways was generally in the nature of digging gravel, or something done to the highway itself, rather than in reference to passing along the highway. However, if the noble and learned Lord was satisfied, he would not venture to put his own opinion against his.

Amendment agreed to.

LORD HALSBURY

said, his next series of Amendments—he mentioned them altogether because they, more or less, depended upon one another—was as to giving an appeal to Quarter Sessions in these cases and setting up a special procedure. The first was, in line 5, leave out from ("to") to end of line 8, and insert ("abate such nuisance").

LORD THRING

pointed out with great deference to the noble and learned Lord, that the legal authority directed the nuisance to be abated. The Court of Summary Jurisdiction did not abate the nuisance; what they did was to make an Order directing it to be abated.

THE LORD CHANCELLOR

said, in this particular place the Amendment was merely to get rid of the obstruction—to abate the nuisance.

Amendment agreed to.

LORD HALSBURY moved— In line 12, to leave out from ("is") to ("order") in line 14, and insert ("a nuisance to such highway may"); and in line 14, to leave out ("direct"), and to leave out from ("occupier to") to end of Clause and, insert ("abate such nuisance").

THE LORD CHANCELLOR

said, he was not sure that he understood what the noble and learned Lord proposed to do by leaving out the words "by summary order." He did not quite see why those words were to be left out.

LORD HALSBURY

said, because they were provided for by a subsequent Amendment.

LORD THRING

objected to the Amendment, because it involved the whole question. A great deal of trouble was taken by the noble Viscount opposite (Lord Cross) in passing the Act with respect to summary procedure, and by that Act rules were laid down, wherever a Court of Summary Procedure inflicted a fine or made a summary Order, how that Order was to be carried out. There was found to be some difficulty in the matter, because every single Act had a different mode of procedure, and he would submit that the noble and learned Lord was now re-introducing an old practice. It was intended that that Act should direct the whole procedure in regard to summary jurisdiction, and it would be better to leave the clause in its present form, which was perfectly well understood, than to introduce an entirely new system of procedure. He admitted that in this case it was not of great consequence; the matter did not involve any great Constitutional question, but, still, the Amendment would entirely reverse the system which that Act was intended to bring in of laying down general rules of procedure which could be understood and acted upon.

LORD HALSBURY

said, he could claim to have had some interest in that matter, as he was Solicitor General at the time, and he thought the noble and learned Lord was under a misapprehension. It was intended to cure blunder, and to provide in future that where an Act did not enact any mode of procedure that Act should apply. It was intended to do that which, singularly enough, only three persons present in Grand Committee were aware of. Almost everbody there who spoke suggested that there was no mode of enforcing an Order of the Justices, except by indictment, for disobeying the Act of Parliament; and this Act was not referred to by the noble Lord; but the language of the Act itself showed what was intended. It provided for cases where power was given by any future Act requiring a person to do, or abstain from doing, anything, but where no mode was prescribed of enforcing such Order. The language of the Statute showed exactly that it was in order to provide against any blunder in passing an Act of Parliament. Everybody in Grand Committee agreed that something must be done. He did not think the House would approve of a general clause of this kind in reference to something concealed in an Act of Parliament, to which nobody referred, giving power to the Court, where no mode was prescribed of enforcing such requisitions, to annex to its Order such conditions as to the mode of action as the Court might think just; and to suspend or rescind such Order, and generally make such arrangements as it might deem fit for carrying such Order into effect. Where no other power was provided those extensive powers were to apply. It was intended to cure blunders, and to make a general regulation as to what was to be done in future. He appealed to their Lordships whether they would approve of an Act of Parliament, with no mode of procedure provided in it, and saying that the Court might, under the Summary Jurisdiction Act, make such arrangements for carrying the requisition into effect as it might think fit. That was a very great power, and he asked their Lordships' judgment upon it.

THE LORD CHANCELLOR

said, he presumed what the noble and learned Lord wished to provide was, that the Court of Summary Jurisdiction might order the proprietor to remove the nuisance, and that if he did not abate the nuisance, that they might do so themselves. The only difference would be that the Magistrates might abate it. The addition to the Summary Jurisdiction Act was that, if the nuisance had not been abated, the Magistrates might give further time, or make such conditions as they thought fit. That seemed to be very desirable, because a person might not have been able to do it within the time, and by further time being given the necessity might be avoided of the Magistrates taking part in abating the nuisance. Surely that was better than that the Magistrates themselves should do it, if it was not done at once. This was a matter in which the public interest was concerned, if arrangements could be made without the necessity for that extreme step by which the nuisance could be equally removed. He begged to support the Bill as it stood.

LORD THRING

said, he had not spoken on the occasion mentioned by Lord Halsbury, as he could not refresh his memory with regard to the terms of the Act, but he could say with confidence that its intention was to prevent difficulty of this kind; and this would be introducing a very bad precedent. Every Court of Petty Sessions and their clerks knew the Summary Jurisdiction Act by heart, and he thought the more they could adhere to the existing law and practice the better.

VISCOUNT CROSS

said, as the author of the Act of 1879, he quite agreed that its one object was to cure blunders in any Act which might be passed afterwards, so that there should be a procedure ready to be acted upon. But it went further, and applied what was a very fair course of procedure. He certainly thought when the Act was passed that it contained a model set of clauses, and that no one would put any other procedure in a future Act unless there was good reason for considering that a different procedure should be applied.

LORD HALSBURY

said, the previous Act not only gave power to remove a nuisance, but to inflict a fine of 20s. a day during the time the Order was not obeyed.

THE LORD CHANCELLOR

said, the proviso was that if the Order were not complied with the Court of Summary Jurisdiction might abate the nuisance, but the noble and learned Lord was putting forward another proposition. This was not an alternative that if the proprietor failed to abate he was to be liable to a fine.

On Question? that the words proposed to be left out stand part of the Bill?

Their Lordships divided:—Contents 46; Not-Contents 34.

Amendment disagreed to.

LORD MONKSWELL

said, some provision would be necessary in this matter, as the Courts of Summary Jurisdiction in Ireland were not very satisfactory. He did not know whether the noble and learned Lord would consider this the proper time to raise the question. The Summary Jurisdiction Act of 1879 did not apply to Ireland, and he was told at the Irish Office that the provisions for enforcing Summary Jurisdiction Orders were not very good in that country. It was suggested that for Ireland the provisions of the Public Health Act (Ireland), 1878, should apply, with the necessary modifications, whore an Order was made by a Court of Summary Jurisdiction in like manner as if made under the Act of 1878.

LORD HALSBURY

suggested that the noble Lord had better move this on Third Reading. There might be a difficulty in applying the sections to Scotland.

LORD MONKSWELL

said, noble Lords were quite satisfied, he understood, with the state of the law in Scotland.

LORD HALSBURY

thought their Lordships had better have notice of the proposed provisions.

LORD BALFOUR

reminded their Lordships that there was only one more stage before the Bill left the House, and it would be well if the noble Lord would consider whether this, and some of the Amendments having reference to the Common Law, were really applicable to Scotland. He had some doubt about it.

THE EARL OF BELMORE

said, in this particular case the County Surveyor would be the person to enforce the Act in Ireland. Perhaps the noble Lord (Monkswell) would look into the matter.

LORD MONKSWELL

said, he had been in communication with the Irish Office on the mutter, and they thought special provision should be made for Ireland.

Bill to be printed as amended. (No. 179.)