§ House in Committee (according to Order).
§ Clause 1.
§ *THE MARQUESS OF WATERFORDregretted he was not present on the Second Reading, or he would have pointed out that the Bill applied to Ireland, and in the Interpretation Clause there was no provision in regard to the Local Authorities there. The phraseology of that clause and of the section following it applied entirely to England and Scotland as regarded the different Local Authorities and Courts of Summary. Jurisdiction, while in Ireland the Local Authority would be the Grand Jury, the County Inspector, and the Urban Sanitary Authority. The only Body, therefore, mentioned in the Bill which could possibly deal with the question in Ireland would be the Urban Sanitary Authority. He proposed to bring forward an Amendment at the Report stage to make the Bill workable in Ireland.
*LORD MONKSWELLhad been informed by his noble Friend Lord Thring that the words referring to Courts of Summary Jurisdiction applied to Ireland. As to the expression "Local Authority" not so applying, he would see that that matter was set right. As the Bill would not come before the Standing Committee until after the Whitsuntide holidays there would be plenty of time for the noble Marquess to move in the matter.
§ Clause agreed to.
§ Clause 2.
§
*LORD MONKSWELL moved an Amendment, in page 1, line 8, after ("in this Act ") to insert—
("'Highway' means any road, lane, bridleway, footpath, or any other way over which the public have rights of user").
He had drafted this Amendment in consultation with Lord Thring. It differed somewhat from the Interpretation Clause in the Highways Act of 1835, but his noble Friend thought this definition better, on the whole, for the purposes of this Bill.
§
Amendment moved,
In page 1, line 8, after ("in this Act") to insert ("'Highway' means any road, lane, bridleway, footpath, or any other way over which the public have rights of user").—(The Lord Monkswell.)
§ LORD BELPERasked whether it, was desirable, where a definite technical meaning was given in one Act, to introduce a different definition in another? In Clause 4 "highways" were referred to in the ordinary meaning. He did not know what the actual difference would be, but thought some difficulty would arise if diverse meanings were given in that way.
§ LORD THRINGexplained that the reason of the Amendment was that, as a general rule, people did not understand "highways" as including footpaths. The fact that a definition was also given in the Act of 1835 was immaterial.
THE EARL OF CAMPERDOWNsuggested that it would be better to introduce the word "footpath" separately after "highway."
*LORD MONKSWELLpointed out that the Act of 1835 defined "highway" as including all roads and bridges not being county bridges. He did not see why county bridges should not be included.
LOUD BALFOURasked the noble Lord to state what other places there were in the nature of highways over which the public had rights of user besides roads, lanes, bridleways, and footpaths? It went on "or any other way."
§ *THE MARQUESS OF SALISBURYIs it very desirable to put in "footpaths" without defining them? A footpath might have become so by ordinary user and yet not be a way over which the public had actual rights, and it might in many cases be exceedingly inconvenient for farmers to be prevented putting this wire across them if necessary for the purpose of keeping in their cattle.
*LORD MONKSWELLsaid, if the noble Marquess preferred "footway" he would not object, but he did not think it would make any difference. He did not think there was really anything in the point.
THE EARL OF KIMBERLEYThis only refers to footpaths over which the public have rights, and I do not think there can possibly be any mistake—a 760 "footpath" over which the public have rights seems to me to cover the ground.
A noble LORD said, the only difference between the meaning of "highway" in this and in the older Act was that in the latter county bridges were excluded; and they might naturally be excluded here, because they had a solid fence on either side of them. It was, therefore, unnecessary to bring them in.
§ LORD THRINGsaid, county bridges were the very places they wanted to include. They certainly did not intend that county bridges should have these barbed wires put up along both sides of them.
THE EARL OF CAMPERDOWNdid not understand that answer. If the noble and learned Lord wished to include bridges they already came within the ordinary definition.
§ *LORD ASHBOURNEIt is obvious there may be great confusion caused here by making the Amendment without a thorough consideration of what the Bill is doing. The whole machinery of the Bill has reference to highways proper with a legal and statutable definition. You are saying that the Body which is to have the control under this Act is the Local Authority which at present has control over the highways. Therefore, "highways" is throughout a term of art, and if you introduce something else which has become dedicated by public user, but is not within the definition of a highway, what right has the Local Authority to meddle with it under this measure which has been called into existence suddenly? I do not say this may not be done by Amendment after due consideration; but I think it is very unwise to do it per saltum, for if you do, you will be handing over to the poor people who will hereafter have to work out this Bill a frightful labyrinth to make their way through.
THE EARL OF KIMBERLEYPerhaps it would be better to postpone this matter for the present. I do not profess to have much legal knowledge in these things, and I think noble Lords who are at the same disadvantage will agree that this might be left over for Standing Committee.
§ THE MARQUESS OF SALISBURYWhat should induce any human being to wish to put a barbed wire on a county bridge?
§ Amendment (by leave of the Committee) withdrawn.
§
LORD BELPER moved, in Clause 2, page 1, line 12, to leave out ("any surveyor of highways"). He said those words appeared to be not only absolutely unnecessary, but in certain cases extremely objectionable. Every possible Authority that could have to deal with the matter was included in the other words of the clause, which ran—
The expression 'local authority' means any county council, any urban sanitary authority, any sanitary authority in London, any highway board, any surveyor of highways, and any other local authorities existing, or that may be hereafter created by Parliament having control over highways.
There was no possible Authority, therefore, which was not included, and the only result would be to convert the surveyor of highways into an authority himself, which he certainly was not. He was only the servant of the Authority, the executive for carrying out their orders; and he had no right to be put in a position where he could act without their authority. They had, of course, to give him his authority; but under this Bill he would be able to act without it.
§ Amendment moved, in page 1, line 12, to leave out ("any surveyor of highways").—(The Lord Belper.)
LORD MONKSWELLbelieved that leaving out those words would make no difference, as there were others having the same effect as the words "surveyor of highways." Under the circumstances, he thought the Amendment had better be accepted.
§ *LORD ASHBOURNEIt is quire manifest this particular sub-section will want to be re-cast in Standing Committee. My noble Friend the Marquess of Waterford has drawn attention to the fact that, although the Bill is intended to extend to Ireland, and there are general words there big enough possibly to grasp all conceivable Local 762 Authorities, still we want to have in words referring to the Grand Jury. That goes to show that the whole section wants re-casting when we get to Standing Committee.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 3.
§ THE EARL OF CAMPERDOWN moved, in Clause 3, page 1, line 23, after ("is") to insert (''deemed by such local authority to be"). Those words he thought necessary for the working of the Bill. As it stood, if ran "where barbed wire was dangerous"; but what was wanted was where it was deemed by the Local Authority to be so. It was difficult, otherwise, to see how the barbed wire could be ascertained to be actually dangerous.
§ Amendment moved, in page 1, line 23, after ("is") to insert ("deemed by such local authority to be").—(The Earl of Camperdown.)
§ LORD HALSBURYI cannot help thinking it is very desirable that this Bill, if amended, should be amended with full consideration in Standing Committee. For my own part, I should object to the introduction of those words. I do not think that the Local Authority should have the power of determining absolutely whether the barbed wire is dangerous or not.
*LORD MONKSWELLdid not understand that that would be the effect of it. The Local Authority could not enforce the Act without the sanction of the Magistrates, and they were the last resort.
§ LOUD HALSBURYI understand the Amendment is to leave it simply to be determined by the Local Authority?
§ THE MARQUESS OF WATERFORDAt present they are unable to say that.
THE EARL OF CAMPERDOWNsaid, the object of his Amendment was very plain. The clause provided that where the barbed wire was dangerous to animals the Local Authority might serve notice, and if it wore not stilted "where deemed by them to be dangerous" they would have no authority to interfere, no ground for acting. They must deem it dangerous before they take action.
§ LORD HALSBURYSurely this is the proper principle. The Local Authority will make the accusation against the wire, so to speak, that it is dangerous; and then when the matter comes before the Magistrate, if he is of opinion that it is not dangerous, he will so decide.
A noble LORD said, the intention seemed to be to prevent barbed wire being put up along the roadsides, so as to be dangerous to passers-by, particularly children. When complaint was made to the owner, if he did not clear away the obstacle, the matter would be referred to the Court of Summary Jurisdiction. Surely that would meet any objection?
§ Amendment (by leave of the Committee) withdrawn.
§ LORD THRING moved, in Clause 3, page 1, line 23, after ("is") insert ("liable to come in contact with"); and in page 2, line 6, after ("is") to insert ("liable to come in contact with.") He said that "dangerous" might mean dangerous to life, and that would, in many eases, have no effect at all. What it really meant, of course, was causing injury, and the insertion of those words would show the meaning of "dangerous." The most severe injuries might be inflicted by this barbed wire, and yet it might not be dangerous to life or limb.
§ Amendment moved, in page 1, line 23, after ("is") to insert ("liable to come in contact with"); and in page 2, line 6, after ("is") to insert ("liable to come in contact with").—(The Lord Thring.)
§ LORD HALSBURYI think I suggested to the noble Lord on the Second Reading of the Bill that some words should be introduced to get rid of the difficulty. I suggested to him to add "so as to constitute a nuisance." Surely the noble Lord does not mean simply "should come in contact with." That will not do. It must be something which will wrongly constitute a nuisance to the public who are rightly using the path, and leaving out "dangerous" is leaving out the whole point of the Bill. The whole theory and justification of the Bill is that the barbed wire is dangerous; otherwise it might be the most harmless barbed wire possible.
764 A noble LORD said, the Amendment would transfer the action from the animals or persons to the wire. The animal or person would now be made the actual operator by coming in contact with the wire.
THE EARL OF KIMBERLEYThere is, I think, some doubt whether "dangerous" may not be too strong, and "liable to come in contact" is, perhaps, too wide the other way. It will have to be considered whether, on the whole, "dangerous" is the right word. What is intended is if it is likely to inflict injury on a person or animal. That is the meaning of it. How to define it exactly is a thing I will not attempt off hand to say. I think this is a matter which requires a little more consideration, and it had much better be considered in Standing Committee.
§ Amendments (by leave of the Committee) withdrawn.
§ Clauses 3 and 4 agreed to.
§ Clause 5.
§ THE EARL OF CAMPERDOWN moved, in Clause 5, page 2, line 12, after ("apply") to insert ("to gates"). His object was to except gates from the operation of the Bill. Of course people naturally wished to protect them.
§ Amendment moved, in page 2, line 12, after ("apply") to insert ("to gates").— (The Earl of Camperdown.)
§ A noble LORD hoped their Lordships would not accept this Amendment.
§ LORD THRINGdid not know anything much more cruel than for anybody who might want to get over a gate at night to have to run the risk of these barbed wires running into them.
§ THE MARQUESS OF SALISBURYI am afraid the noble and learned Lord is constituting himself the representative of a class of the community which I trust is not a large one—namely, those who wish to get over gates at night.
THE EARL OF KIMBERLEYBut really gates are places where people would be very likely indeed to come in contact with barbed wires.
§ Amendment (by leave of the Committee) withdrawn.
765LORD TURING,in moving the next Amendment, said, he thought some limitation was necessary here. If no height were stated for these fences the Bill would apply to an oak fence a foot high.
§
Amendment moved,
In page 2, line 12, after ("fences") to insert ("being not less than six feet in height"); in line 13 to leave out (''on or''); and in Hue 14, to add at end of Clause ("in such manner that the barbs of the wire do not extend beyond the outward surface of the fence").—(The Lord Thring.)
THE EARL OF KIMBERLEYThat would be an exception in favour of people who happened to own deer-parks, and of nobody else.
*LORD MONKSWELLsaid, the promoters of the Bill would have no objection to this clause of the Bill being omitted altogether.
§ THE MARQUESS OF SALISBURYI would venture to suggest again that these things are much better considered in Standing Committee. I am quite sure they cannot be done properly here.
THE EARL OF KIMBERLEYI quite agree with the noble Marquess. They cannot be dealt with conveniently by the House, and Standing Committee is much more suitable for their consideration.
§ LORD THRINGThen I will withdraw all my Amendments and move them in Standing Committee.
§ Amendments (by leave of the Committee) withdrawn.
§ Clause agreed to.
§ Bill reported to the House with Amendments; and Bill re-committed to the Standing Committee.