HL Deb 08 May 1893 vol 12 cc302-7

Order of the Day for the Second Reading, read.

LORD MONKSWELL

said, this Bill proposed to give power to Local Authorities having the control of highways to order the removal by occupiers of laud of barbed wire fences so placed as to be dangerous to men or animals passing along such highways. If the barbed wire fences were not removed within the time specified in the order—namely, not less than one month and not more than six—a Court of Summary Jurisdiction might direct their removal. Clause 5, which related to fences over which wire was placed for the protection of property under the Act, might require amendment, as it hardly appeared well drafted as it stood. The Bill, he should mention, was not a Government measure, and he merely took it in hand to oblige a private Member of the House of Commons. He would also mention that "highways" in an Act of Parliament included footways, unless the contrary was expressed. When the Bill went into Committee it might, perhaps, be well for the benefit of occupiers and the public that a definition of "highways" should be given. He begged to move the Second Reading.

Moved, "That the Bill be now read 2a" —(The Lord Monkswell.)

THE EARL OF CAMPERDOWN, in moving that the Bill be read a second time that day six months, said, his objection to it was that it dealt with a matter which ought to be left for proceedings under the existing Common Law. In Scotland a judicial decision in reference to highways had been acted upon over since 1886. He thought it unwise that Bills should be introduced by private Members dealing with matters falling within the ordinary Common Law. This measure was introduced originally in a different form— namely, that any person might serve notice on an owner or occupier on whose lands barbed wire fence was erected requiring its removal within a month, and that in default the Local Authority might remove it and recover the cost of doing so from the owner or occupier. Its form was now very much changed, but these matters had much better be left to be dealt with by the ordinary law. Whether he should divide the House on his Motion to reject the Bill would depend very much upon the opinion their Lordships might express. In Scotland it had been decided that a barbed wire fence adjacent to a road must have the barbed wires on the inside towards the land it was to protect, and that the posts must not be more than a reasonable distance apart, which had been held, he believed, by the Courts to be something like 80 feet.

Amendment moved to leave out ("now") and add at the end of the Motion ("this day six months ").—(The Earl of Camperdown.)

*LORD THRING

earnestly hoped their Lordships would read the Bill a second time, for it involved a much greater principle than at first appeared, expressed in an old Latin phrase which might be stated in English that "you must so deal with your property as not to injure others," and which involved the moral duty of "doing to others as you would be done by." Nothing was more calculated to destroy the amenities of country life than these barbed wire fences placed along highways and public footpaths. What reason was there why a child wandering along the roadside picking cowslips and blackberries should be liable to have its hands lacerated and its clothes torn by these fences, or why people walking along the highways and footpaths should run the risk of being dangerously hurt by them? There were no uglier wounds than those made by these fences. In regard to animals again, could anything be more shocking than to see a dog coming out of them torn and perhaps blinded? It was not right to expose hounds to such dreadful suffering. Plenty of means of protecting property existed without resorting to so barbarous a system. The noble Earl (Lord Camper-down) had said the existing Common Law remedy was sufficient in cases of injury occurring. What was the remedy? If an action were brought the lawyer would argue "contributory negligence," that the person had walked too near the fence, and so on. Was it fair to tell people, who suffered injury in walking along a road or footpath, which they had been in the habit of using daily, that they might bring actions? Thee it was said an indictment might be brought, but their Lordships knew what that meant. There was, in fact, no practical remedy but that proposed by this Bill. As to the remedy by indictment, their Lordships knew that the sanitary laws had entirely failed so long as the remedy for nuisance was only by indictment. He believed that shutting up public footpaths did more real harm to the interests of property than all the Socialistic speeches which might be made in a century. These fences really interfered with the heritage of the stranger. Was not a wayfarer to be allowed to lie down by the roadside without fear of being injured by those horrible wires? This was, in his opinion, a most righteous Bill, and he hoped their Lordships would assent to it.

*THE MARQUESS OF HUNTLY

said, the speech their Lordships had just listened to was not merely in support of the Bill, but in favour of the abolition of barbed wire fences altogether. He had had experience in these matters at the Aberdeenshire County Council. They had been told what the law in Scotland was under the decision of President Inglis as to putting up barbed wire fences along the roadsides; and he had brought forward a motion at the County Council that steps should be taken for their abolition; but it was pointed out that though sheep might suffer by having their wool torn in these fences, barbed wire was necessary in some parts of the country to keep the wild Canadian animals, imported by some proprietors and tenants, from invading their neighbours' lands: those animals were only kept in the fields by that means. He only mentioned that to show that there were two aspects to this matter. This was not only a question of the footpaths in suburban districts of London or Surrey, but it was one of considerable importance to farmers in the North and in rural districts throughout the country where, in many instances, these barbed wire fences were a necessary protection for the fields. If this Bill were passed the House would be setting up a most invidious distinction in regard to what was dangerous to persons or to animals. Notices would be served upon people who put up these defences to their crops, and if no attention was paid they would be hauled up before a Court of Summary Jurisdiction. Thus an endless source of litigation would be provided. He had never road a more loosely-drawn clause than Clause 3 of the Bill. Who was to decide whether the fence was dangerous or not? And why should an occupier he called upon to come forward and prove that it was not dangerous? It seemed to him they would be putting into the hands of certain individuals a means of annoying one another, which would lead to no good at all. If the use of barbed wire wore to be stopped altogether, by all means let a Bill he brought in to abolish it; but this Bill was only leaving the door open for the Courts to decide whether or not what a man was doing for the protection of his property was dangerous to animals or not—a question which it would not be very easy, perhaps, to decide.

*THE DUKE OF ARGYLL

My Lords, I cannot say that I see any harm in this Bill. I believe it is in accordance with the law of Scotland, but I must protest against the strong language which has been used by the noble Lord opposite (Lord Thring), who got up an amount of feeling which I should not have thought possible on the iniquity of barbed wire fences. I am afraid I am guilty of having erected lately many miles of barbed wire. The real truth is that in the wild districts of Scotland and in the North of England there are large farms which have to be fenced, and there are no other means of fencing so effectively and so cheaply as by using this wire. Where you have heavy animals to deal with, their more leaning against fences is sufficient to break them down, and the barbed wire is not put there to lacerate the animals, still less to tear the hands and clothes of people who pass by. It is simply to give notice to the heavy horses and cattle that if they press against that wire it will have the effect of hurting them. There is no doubt that the barbed wire has a most protective effect in preventing horses and other heavy animals leaning against and breaking down fences. I believe it is not in the least with the design of preventing human beings passing, but simply for the purpose of preventing the egress of animals from the fields, and for that purpose it is necessary. I quite agree with my noble Friend opposite that landlords ought not to erect such fences where they can be injurious to human beings; but I cannot understand how either man or beast properly using a roadway can come against a barbed wire fence. If a horse tries to leave a field, he may, no doubt, come against the fence; and if he succeeded in getting out, he would, in many districts in Scotland and parts of England, probably go over a steep bank into the sea. At the same time, my Lords, there appears to me to be a perfectly good remedy for any injury that may be done, as the Sheriff has power to move in the matter.

LOUD HALSBURY

I doubt very much whether this Bill, beyond proposing to provide by a new Statute a new remedy, goes beyond the law as it is now, either in Scotland or in England. Of course, no one is entitled to put up along a highway, either to prevent trespass or otherwise, anything which will cause injury to man or beast. That, I believe, is the law. But if the Bill were read a second time, and words which I will venture to suggest were introduced, they will probably get rid of any objection. The object is not, I take it, to create a new offence, but only to create a cheaper and more easy and convenient remedy than the present procedure by indictment. I observe that some effort has been made to define "highways," and I expect, when you come to deal with that in a Court of Law, you will find some difficulty; but if you were to add the words "so as to create a nuisance," after that which constitutes the offence, the law would remain as it is now, and that which is the object of the Bill simply would remain—namely, to give a cheaper and more efficient remedy than existed before.

THE LORD CHANCELLOR (Lord HERSCHELL)

My Lords, I quite agree with my noble and learned Friend that this does not alter the substance of the law. I apprehend that you would very well define one form of nuisance as putting up a fence adjoining a highway which would make the highway dangerous to persons properly using it. That, undoubtedly, would be a nuisance in point of law. But the noble Earl who moved the rejection of this Bill seemed to think that, as that might now be left to be established in a Court of Law, that was a conclusive answer to those who desire to deal with the matter by legislation and to pass this measure into law. It is quite true that that Common Law right to have the nuisance got rid of may be enforced by indictment; but everybody knows what the nature of a remedy of that description is, and how inconvenient it is. Surely if it be a right which those passing along the highway have to be guarded against a nuisance of this description, if the existing law is so cumbrous and so inconvenient that by reason of the trouble and expense that would be caused their rights cannot be asserted, that is an occasion when it would be more reasonable and right that you should provide a simple process for enforcing the law. That is all this Bill proposes, and, though it may be open to amendment in Committee, for that reason I support the Second Reading.

THE EARL OF CAMPERDOWN

, after what had been said, would not put their Lordships to the trouble of dividing.

Amendment (by leave of the House) withdrawn.

Original Motion agreed to.

Bill read 2a accordingly, and committed to a Committee of the Whole House on Friday next.