Lords Sitting of 8 July 1913

ABERYSTWYTH CORPORATION BILL. [H.L.]
The KING'S consent signified, and Bill reported, with Amendments.

MORLEY CORPORATION BILL. [H.L.]
Reported from the Select Committee, with Amendments.
GAS AND WATER PROVISIONAL ORDERS (No. 2) BILL.
TRAMWAYS PROVISIONAL ORDERS BILL.
LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDERS (No. 1) BILL.
Reported, without amendment, and recommitted to a Committee of the Whole House To-morrow.

LOCAL GOVERNMENT (IRELAND) PRO VISIONAL ORDERS (No. 2) BILL.
Reported, with an Amendment, and recommitted to a Committee of the Whole House To-morrow.
GREAT NORTHERN RAILWAY BILL.
Reported, with Amendments.

GREAT WESTERN RAILWAY BILL.
The consent of His Royal Highness the Prince of Wales signified, and Bill reported with Amendments.
METROPOLITAN ELECTRIC TRAMWAYS (RAILLESS TRACTION) BILL.
ALEXANDRA PARK AND PALACE BILL. [H.L.]
SOUTHPORT CORPORATION BILL.
Report from the Committee of Selection, That the Viscount Falmouth be proposed to the House as a Member of the Select Committee on the said Bills in the place of the Lord Saye and Sele; read, and agreed to.
HEATHFIELD AND DISTRICT WATER BILL.
WESTMINSTER HOSPITAL BILL.
BLYTH AND COWPEN GAS BILL.
Moved, That the Order made on the 22nd of April last, "That no Private Bill brought from the House of Commons shall be read a second time after Thursday the 19th day of June next" be dispensed with, and that the Bills be now read 2a; agreed to: Bills read 2aaccordingly, and committed.

WESTMINISTER HOSPITAL BILL.
The Committee to be proposed by the Committee of Selection.

WATNEY, COMBE, REID AND COMPANY BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.
TOTTENHAM AND EDMONTON GAS BILL.
YORK CORPORATION BILL.
COVENTRY CORPORATION BILL.
Read 3a, with the Amendments, and passed, and returned to the Commons.

GOVERNMENT OF IRELAND BILL.
Brought from the Commons.
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 13) BILL.
Brought from the Commons; read 1a; to be printed; and referred to the Examiners. (No. 103.)
DOVER, HARBOUR BILL.
Brought from the Commons; read 1a; and referred to the Examiners.
RICHMOND (SURREY) ELECTRICITY SUPPLY BILL. [H.L.]
Returned from the Commons, agreed to.
BARRY RAILWAY BILL. [H.L.]
Returned from the Commons, agreed to, with Amendments: The said Amendments considered, and agreed to.
MID-KENT AND EAST KENT DISTRICT WATER BILL.
Returned from the Commons, with the Amendments, agreed to.

GOVERNMENT OF IRELAND BILL.
Read 1a; to be printed; and to be read 2a on Monday next. (No. 104.)
LOCAL GOVERNMENT PROVISIONAL ORDER (GAS) BILL.
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 4) BILL.
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 7) BILL.
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 8) BILL.
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 10) BILL.
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 11) BILL.
LOCAL GOVERNMENT PROVISIONAL ORDER (No. 16) BILL.
Moved, That the Order made on the 22nd of April last, "That no Provisional Order Confirmation Bill brought from the House of Commons shall be read a second time after Thursday the 19th day of June next" be dispensed with, and that the Bills be now read 2a; agreed to: Bills read 2aaccordingly, and committed.

LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 10) BILL.
The Committee to be proposed by the Committee of Selection in regard to the Carlisle Order.

PUBLIC RIGHTS OF WAY BILL. [H.L.]
Order of the Day for the House to be put into Committee, read.
Moved, That the House do now resolve itself into Committee.—(Lord Eversley.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF DONOUGHMORE in the Chair.]
Clause 1 agreed to.
Clause 2:
Public use of way for twenty years conclusive that way is a public highway.
2. Where a way upon or over any land has been actually enjoyed by the public without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a public highway unless it shall appear that there is sufficient evidence arising during that period negativing the intention to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way. And, where such way has been enjoyed as aforesaid for a full period of forty years, such way shall be deemed conclusively to have been dedicated as a public highway unless there is sufficient evidence arising during that period negativing the intention to dedicate such way and, in either of the cases in this section men-
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tioned, a notice by the owner of the land over which such way passes inconsistent with its dedication as a highway, placed and maintained in such a manner as to be visible to those using it, shall, in the absence of any proof of a contrary intention, be sufficient evidence to negative the intention to dedicate such way as a public highway: Provided that, in the case of any land let on lease, the person for the time being entitled to the reversion shall, notwithstanding the existence of any such lease, have the right to cause such notice to be placed and maintained: Provided that each of the respective periods of years mentioned in this section shall be deemed and taken to be the period next before the time when the right of the public to use a way shall have been brought into question: Provided further that nothing in this section contained shall affect the incapacity of corporations or other bodies or persons in possession of land for public or statutory purposes to dedicate any such way where such way would be incompatible with such public or statutory purposes.
LORD ZOUCHE OF HARYNGWORTH LORD ZOUCHE OF HARYNGWORTH had an Amendment on the Paper, after the word "it" ["placed and maintained in such a manner as to be visible to those using it"], to insert the words "for at least six months immediately before the time when the right of the public to use the way is brought into question." The noble Lord said: This Amendment is of a technical nature dealing with the notice disclaiming any intention on the part of an owner to dedicate a way, and it lays down the time during which that notice should be exhibited. On reconsideration, however, I find that there are objections to the Amendment and that the insertion of these words might lead to complication. Therefore, with your Lordships' leave, I will not move this Amendment.
LORD EVERSLEY LORD EVERSLEY moved, after the word "intention" ["be sufficient evidence to negative the intention"], to insert "of time person so placing such notice." The noble Lord said: This is merely a drafting Amendment for the purpose of making it somewhat more clear than is now the case that the notice of objection to dedication is made on the part of somebody who has the right to make it. It will not affect the general scope of the Bill in ally way, but is in accordance with its general principles.
Amendment moved—
Clause 2, page 1, line 24, after ("intention") insert ("of the person so placing such notice").—(Lord Evereley.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
LORD ZOUCHE OF HARYNGWORTH: Your Lordships will see standing on the Paper in my name a proposed new clause dealing with provisions as to notice and liability to repair. This also is a technical point, and I think it would be convenient to divide the clause and treat each of the two subsections separately. I propose subsection (1)—
"A way shall not be deemed to have been dedicated as a public highway under this Act until notice in writing to that effect has been served by the highway authority upon the owner of the land over which such way passes."
for the following among other reasons. Under the Bill as it stands there will be no definite point of time when a way will become a public way unless there has been a dispute in the matter and a decision has been given by a Court of Law. That, if I may venture to say so, is one of the difficulties about the whole Bill—namely, that it does not appear quite clear who is to set the machinery in motion. I rather gather that the Bill is in the nature of an explanatory measure or a direction as to how decisions should be arrived at in cases of dispute. Your Lordships will see from the Memorandum attached to the Bill that there are conflicting authorities on this vexed question. Sometimes the Court decides one way and sometimes another. The purpose of the subsection which I am now recommending to your Lordships is to make the matter clearer. Its object really is to provide a procedure so that all parties may know where they are. At present it is a little doubtful who is to put the Act in motion in case of dispute. It sometimes arises that there is a dispute about a certain way which people think ought to be a public way and the case is taken up by the local authority in question, but disputes occasionally arise in consequence of claims made by irresponsible persons. As your Lordships know, very often in the case of country roads or paths which the public have been allowed to use, perhaps through the carelessness or good nature of the owner over whose land the road goes, certain irresponsible people claim a right of way for the purpose, if I may venture to say so, of making mischief or bringing themselves forward, and they try to assert a right which does not really exist and which the owner had no intention of creating. The object of the subsection which I am now moving is to endeavour to simplify the procedure in connection with these vexed questions, which very often
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occasion a good deal of ill-feeling and bad blood in country districts.
Amendment moved—
After Clause 2 insert the following new subsection:
"3.—A way shall not be deemed to have been dedicated as a public highway under this Act until notice in writing to that effect has been served by the highway authority upon the owner of the land over which such way passes."—(Lord Zouche of Haryngworth.)
LORD EVERSLEY: In this subsection the noble Lord proposes that the consent of the local authority should be necessary in order that any footpaths should be dedicated in the future. That would make a complete alteration in the law as it now stands. At present no consent of any local authority is necessary for the dedication of a right of way. This subject was dealt with two years ago by the Committee over which Lord Alverstone presided, but the Committee did not think it necessary to suggest any Amendment to this effect. Were this Amendment inserted it would be necessary, before any suit could be maintained for the prevention of the obstruction of a footpath, to get the consent of the highway authority. The highway authority in rural districts is the local district board, and that board. AS a rule, is not very favourable to footpaths, and it, has been found by experience that they are not very willing to put the law in force for the purpose of maintaining rights of way. This subject was dealt with at some length in the discussion which took place in 1894 on the Local Government Bill of that year, and a clause was inserted, very much at my instance, which in the first place threw upon the local highway authority the obligation to maintain a footpath by legal proceedings if necessary. The clause further went on to say that. if the highway authority—namely, the local district board—either refused or neglected to do so, then the parish council might appeal to the county council and ask them to undertake the protection of the right of way, and the county council were empowered to take upon themselves the duty of the district board to initiate any proceedings which might be necessary for the purpose of preventing an obstruction and to charge the district board with the cost of the proceedings. If the subsection which the noble Lord has now moved were inserted in this Bill it would practically repeal the

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provision of the Act of 1894 to which I have alluded, and in future it would rest entirely with the district board whether or not any proceedings should be taken for the maintenance of a right of way or the prevention of obstruction. That would be a very serious change in the law, and I do not think that your Lordships should insert such an Amendment. It would be a retrograde step to repeal that section and make the consent of the district board alone necessary for any proceedings for the purpose of protecting and maintaining footpaths. I venture to hope, therefore, that your Lordships will not agree to the noble Lord's proposed new subsection.
THE LORD CHANCELLOR (VISCOUNT HALDANE): Apart from the difficulty which has just been pointed out by the noble Lord in charge of the Bill, there is another difficulty which I would venture to indicate. If this Amendment passes there will be a new complication introduced into an already sufficiently complicated subject. Your Lordships will observe that the proposed subsection imposing this new condition applies only to highways dedicated under this Bill, and there would be a question on every occasion in the future whether the dedication had been in conformity with the provisions of this Bill or in conformity with the rule which the Common Law lays down. I suggest to the noble Lord that this is a very dangerous Amendment to introduce into the law as it stands.
THE MARQUESS OF LANSDOWNE: I am inclined to think that my noble friend would probably be wise not to press his Amendment. This Bill is intended really as an enlargement of the rights of the public in regard to the use of rights of way, and I cannot help thinking that my noble friend's Amendment would have the effect, on the contrary, of restricting the rights which the public now enjoys under the present law. As I understand the Bill, what it enacts is that where evidence is forthcoming to show that there has been a forty years user of a right of way the claim of the public cannot then be defeated by showing that the land has been in family settlement during that period of forty years. That is an admission, or as I ventured to submit a moment ago an extension, of the rights of the public, and no question arises up to that point as to the intervention of local authorities of any kind. I
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cannot help thinking that if my noble friend brings in the local authority and makes the initiative of the local authority an indispensable condition it will be argued against him with some force that he is really curtailing the existing rights of the public.
LORD ZOUCHE OF HARYNGWORTH: After what has fallen from those noble Lords who have taken part in this discussion, I do not wish to press the first subsection of my proposed new clause.
Amendment, by leave, withdrawn.
LORD ZOUCHE OF HARYNGWORTH: Subsection (2), which I now move, raises a different matter, and one which I think is of considerable importance. It provides that where a way has been dedicated as a public highway under this Bill it shall, notwithstanding anything to the contrary in any Act, become a highway repairable by the inhabitants at large. The expression "inhabitants at large" is, I understand, the proper legal expression for the local authority. This does seem to me to be only a fair condition to be observed. Where a way, whether it is a footpath or a full carriage way or road for vehicles, has been declared by a competent Court to have been dedicated as a public highway on account of nobody having been interfered with in their user of it for the specified number of years—possibly, as I have already said, out of good nature, and possibly out of perfectly innocent neglect on the part of the owner to put up a notice negativing the intention to dedicate—I submit that. the way should be maintained and repaired in future by the public. Where dedication is presumed in the ease of what has always been supposed or intended to be a private way but which the owner, through neglect, or carelessness or because he did not like to interfere with the few people using it, has allowed to become a public highway, it is very hard that he should have to maintain it as a public way for the use of the public. Although I labour under the disadvantage of not being a lawyer, I rather gather that it is supposed to be against, public policy that a public highway should be repairable and should be maintained by a private person. Where the way in question is a rather unfrequented path or some road which has apparently got into disuse

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the matter is an unimportant one, but circumstances may change and what is now a seldom used road may become a highly frequented one in the future; and I submit that it would be very hard upon the owner of the land through which this way passes if he is liable for ever afterwards for its maintenance and repair as a public way when in the first instance there was no intention whatever to dedicate it to the public. This expense might be something considerable and might press very hard upon the owner. I am also advised that, supposing the way has been deemed to be dedicated as a highway and it is left in doubt as to who is to repair it, should the way under these new conditions, whether it be a footpath or a road for vehicles, get out of repair to such an extent that injury to the public results, the owner of the land through which the way passes might be held liable. That, I submit, is an additional reason for inserting this Amendment; otherwise you might have a very unfair burden placed upon the owner which lie did not contemplate and for which he ought not to be responsible.
Amendment moved—
After Clause 2 insert the following new subsection:
"(2) Where a way has been dedicated as a public highway under this Act it shall, notwithstanding anything to the contrary in any Act, become a highway repairable by the inhabitants at large."—(Lord Zouche of Haryngworth.)
LORD EVERSLEY: The object of this Amendment, as I understand, is to relieve the landowner of any possibility of being called upon to repair a footpath which may be dedicated under the Bill, and to throw the cost upon the local authority. The noble Lord is in error in supposing that under the Bill as it stands any liability whatever would be thrown on the landowner. Under the present law the landowner, except in the rarest possible cases, is not responsible for the repair of any footpath which runs through his estate, and the Bill now before us makes no difference in this respect. I can assure the noble Lord that there is nothing in this Bill which will throw any fresh liability upon landowners or any responsibility for repairing a path which may be dedicated under the Bill. The question whether the responsibility should be thrown upon the local authority is another matter. As I
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understand the law, except in respect of footpaths which were in existence before 1835, the year of the passing of the Highways Act, there is no responsibility whatever on any local authority to repair a footpath. They are entitled to do so if they think fit, but there is no liability upon them to do so; and I think that local authorities throughout the country would be very much surprised if your Lordships were to insert this provision imposing a fresh liability of this kind upon them. When this Bill was first introduced in the other House some four or five years ago a meeting was held of the associations of the different local authorities throughout the country. They unanimously approved of the general principle of the Bill, but were under some kind of alarm that it would throw fresh liability and responsibility upon them, and at their instance I promised to introduce a clause relieving them of any liability or responsibility in respect of any footway dedicated under the Bill. When, however, the Bill was considered by the Committee of your Lordships' House two years ago, Lord Alverstone moved the deletion of this clause on the ground that it was not necessary and that it was perfectly clear that under the Bill as it stood no liability whatever would be thrown on local authorities. In these circumstances I think I should be acting in bad faith to the local authorities if I assented to the noble Lord's Amendment throwing upon them the liability to repair public footpaths which may be created under this Bill. No liability exists in respect of ordinary footpaths under the existing law, and I see no reason for throwing a fresh liability either on the landowner or on the local authority. If they think fit to repair the footpaths, well and good; but at present there is no liability whatever upon them to do so, and I do not propose in the Bill as it stands to throw upon them any such liability.
LORD ZOUCHE OF HARYNGWORTH: The noble Lord, in the observations which he has just addressed to the House, seemed to dwell on the word "footpath." rather giving us to understand that the Bill referred only to footpaths. I speak under correction as a layman, but I understand that the Bill refers not merely to a footpath but to a highway generally—that is to say, to a full road adaptable for wheel traffic and other vehicles.
THE LORD CHANCELLOR: I would point out that this Amendment goes beyond highways and throws a liability on the inhabitants at large for the repair of every footpath. That is a novel proposal, and would be a very startling one to the local authorities if it became law. It is not every highway that is repairable by the inhabitants at large, and I think it is unlikely that there will be any highway of the kind which is repairable by the highway authority being dedicated under this Bill. As to footpaths, the effect of the Amendment would be to place a large liability upon the ratepayers. I do not think that is necessary, and I must acid that I do not think it is desirable.
THE MARQUESS OF LANSDOWNE: It is clearly desirable that the point raised by my noble friend should be cleared up. It would obviously be a great injustice to the owner of the land over which a path or road of any kind passes, that a right of way should be established across his property and that he should thereafter remain subject to any obligation, either for the expense of maintaining the path or road or in respect of accidents which might take place to persons travelling along it. My noble friend seeks to meet that by a suggestion that the responsibility for maintenance should be transferred from the owner of the land to the highway authority. But I think his point would be met if we stopped short of that, and if at any rate it were established beyond doubt that whoever was responsible no responsibility either in respect of the maintenance of the road or in respect of accidents attached to the owner of the land. We understood the noble Lord in charge of the Bill to say positively that he was satisfied that the Bill as now drafted did not impose any obligation upon the owner of the land—that as no responsibility now attaches to the owner we do not relieve him of any responsibility. If the noble and learned Viscount can tell us that Lord Eversley is not wrong upon that point, and if he can tell us that whatever is true of a path is also true of a more important thoroughfare covered by the terms of the Bill, then I should feel that we were sufficiently reassured with regard to the apprehensions of my noble friend.
THE LORD CHANCELLOR: I agree with the statement of the law made by my noble friend Lord Eversley. I think it is substantially accurate. There is no liability upon the landowner in a case of this kind.
THE MARQUESS OF SALISBURY: The difficulty we are in is this. The noble Lord in charge of the Bill confined his answer absolutely to footpaths. Many of the footpaths in use are not of a nature which require repair, but the ordinary road is habitually repaired. The case put by my noble friend is this. Here is a road which the owner has always treated as a private road but by negligence has allowed the public to go over it for a certain number of years, it being settled property. Then the Bill says, quite rightly, that this road shall become a public right of way. On whom, then, henceforward does the responsibility for the repair of that road lie? Does it fall upon the local authority? "No," says the noble Lord in charge of the Bill. Does it fall on the owner? Do I understand the noble and learned Viscount to say No?
THE LORD CHANCELLOR: I can conceive a state of things in which somebody makes a road across his property, meaning it to be used by the public for carriages and carts and in every ordinary fashion, and throws it to a limited extent open to the public. In that case there is certainly no liability on the public authority to repair it, and I should say none on the part of the owner himself. If he dedicates it to the public then the public use it in the condition in which it is, even with the gates and things which the owner has put there. He is under no obligation to repair it, as far as I can see. The extent of his obligation may be this. If there is a dangerous part, something in the nature of a trap, he has no right to leave a trap open to the public, and if somebody at his invitation goes over the road the owner would be liable. But that is not repair.
THE MARQUESS OF SALISBURY: The noble and learned Viscount has dealt with the second point, to which I was coming. The first point is whether the owner in such circumstances is liable to repair the road I know such a road at this moment. It is not a right of way. It goes over private property, but under the Bill it might become with negligence a public right of way. The noble and learned Viscount tells us, though I noticed a little hesitation in his statement, that he does not believe the owner is liable to repair it. I would ask the noble and learned Viscount to assure himself before the Bill passes that his great knowledge of

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the law has not, failed him at this moment. Then comes the other question, the question of accident. A road might, have a hole in it and there might be an accident and somebody be hurt. The question is, Would the owner be liable? He would say, "I always thought this was a private road and I did not admit anybody except by my own grace and favour, but it turns out that it has become a public right of way and there is a hole in it and some one has gone over this hole and come to grief and he sends the doctor's bill in to me." I want to know whether, if the doctor's bill is sent in to the owner in such circumstances, he would be called upon to pay.
THE LORD CHANCELLOR: This is a rather difficult question and, depends on the circumstances, but the principle is this. If a landowner has made what looks like a public highway and dedicated it by inviting the public to conic upon it and there is a hole in the middle and he does not give warning of the existence of this hole, then some one breaks his leg, the owner would be liable. There is the same liability if you have a cellar with a trap door and do not satisfactorily fasten the door and somebody injures himself. But that has nothing to do with repair. If there is a difference made by the adoption of this Amendment it is only a difference in the case of highways dedicated under this Bill. Ordinary highways dedicated under the Common Law would be in a different position. As I understand the law, no landlord is liable for the repair of a highway which is merely a highway that he has allowed to become dedicated to the public in the way which the Common Law up till now has permitted. The Bill makes no difference in that principle. All that it does is to alter somewhat the evidence of presumption of dedication.
THE MARQUESS OF LANSDOWNE: I am not sure that the noble and learned Viscount has quite comprehended my noble friend's point. Take the case of a road which is something more than a footpath—a serviceable road which has been maintained by the owner of the adjoining land for a number of years. Then, under conditions which this Bill describes, that road becomes a public right of way. Thereupon the noble and learned Viscount tells us that the responsibility of the owner of the adjoining land ceases. He, it is
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quite true, has not been liable for the repair of the road in the past but he has, in fact, repaired it, and if he ceases to be liable and also ceases to make the necessary repairs, that road—it is merely a question of time—will become unsafe for traffic. Then occurs the accident which my noble friend behind me has presumed, and the question is whether it is quite clear that the owner of the land would not be liable to damages at the suit of the person who suffered from that accident.
THE LORD CHANCELLOR: My impression is that it quite clear he would not. But this is an intricate branch of the law, and I will look into the point.
LORD NEWTON: I intervene only in order to give a personal instance of the injustice which may occur under the Bill and the extremely unsatisfactory state of the law at the present moment. There happens to be on my property a case exactly analogous to that pointed out by the noble Marquess. There is a road there which is a public footpath, and owing to negligence on the part of my predecessors the public use this road as a highway, and if I were to attempt to assert my rights by putting up a gate or other obstacle no doubt the whole countryside would descend upon me and destroy the gate or whatever the obstacle might be. But I am expected to keep the road in repair, whereas the public have the complete enjoyment of it; and if anything goes wrong the so-called owner of the road is called upon not only to pay for any damages that may take place but he is also called upon to keep it in proper repair. That has always seemed to me a singularly illogical state of things, and if this Bill could be utilised to put matters on a more satisfactory footing I think it would be for the benefit of everybody concerned.
THE EARL OF CAMPERDOWN: I have listened very carefully to everything that has been said on this matter, and I rise to make a suggestion. Clearly it is intended not to throw any additional liability upon an owner by this Bill. In these circumstances I suggest that a clause should be inserted saying that "Nothing in this Act contained shall throw any additional liability upon an owner." How would that do?
THE LORD CHANCELLOR: I think it would be a very harmless clause to insert, but it is hardly germane. People would ask, What is there in the Bill that proposes to throw any liability on the owner? However, I see no objection to the insertion of such a clause as the noble Earl has suggested if he cares to move it. But it is quite unnecessary and I am not sure that it is very apt, though it is in accordance with what we all mean.
THE EARL OF CAMPERDOWN: That being so, I will put the clause on the Paper and your Lordships can look at it.
LORD ZOUCHE OF HARYNGWORTH: After what has been said, I do not wish to press the Amendment at the present moment.
Amendment, by leave, withdrawn.
Clauses 3 to 6 agreed to
Clause 7:
Commencement of Act.
7. This Act shall come into operation on the first day of January nineteen hundred and fourteen.
LORD ZOUCHE OF HARYNGWORTH: I move to leave out "January," and insert "June." The object of this Amendment, of course, is to give a little more time to the parties concerned before the Bill comes into operation. It seems desirable that there should be this slight extension of time, but I am quite in your Lordships' hands as to whether or not I should press the Amendment.
Amendment moved—
Clause 7, page 2, line 25, leave out ("January") and insert ("June").—(Lord Zouche of Haryngworth.)
LORD EVERSLEY: It seemed to me that in the last Bill rather a long time was allowed before it came into operation. The period was twelve months, and therefore I made a small alteration in the present Bill by providing that it should come into operation in six months. If the noble Lord thinks the difference an important one I am ready to accept the Amendment, inasmuch as I said that the Bill was identical with the Bill of two years ago. But it seems to me that the point is not very important one way or the other.
LORD ZOUCHE OF HARYNGWORTH: I think it is reasonable that more time should be given, especially in consequence of this question of notices. I may say that I am not altogether hostile to the Bill as a whole. There are many cases where a way long enjoyed by the public ought to be a public way. But I do think that in the case of a Bill like this, which produces considerable changes, it would be advantageous that a little more time should be given.
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
The Report of Amendments to be received on Monday next, and Bill to be printed as amended. (No. 105.)

ANCIENT MONUMENTS CONSOLIDATION AND AMENDMENT BILL. [H.L.]
Order of the Day for the Third Reading read.
Moved, That the Bill be now read 3a.—(Earl Beauchamp.)
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, I desire to say a few words upon one point in this Bill before we give it a Third Reading. There has been some misunderstanding on the subject outside this House, though I do not know that there has been any within its walls. Your Lordships will remember—indeed attention has been called to it—that in the Bill as introduced buildings which are now used for ecclesiastical purposes were excluded from Part III, but under Parts I, II, and IV such buildings still fell within the provisions of the Bill so far as they were applicable. By subsequent amendment a change was made excluding buildings now used for ecclesiastical purposes from the purview of the Bill from beginning to end; but I am anxious to say a single word to avoid misapprehension as to the manner of that change.
I am very far from saying that buildings which are subject to the control of ecclesiastical authorities have always and invariably been protected in the most ideally perfect way, while other buildings were suffering which were not under ecclesiastical control.

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Ecclesiastical authorities, like other people, have changed their views on these subjects very much for the better in recent generations, and though I believe that, speaking generally, the control exercised by the ecclesiastical authorities has been well exercised, I do not for a moment claim infallibility for them throughout the years that have gone. Nor do I maintain that at this moment the ecclesiastical authorities ought to be turning a deaf ear to criticisms which have appeared in the evidence before the Select Committee and elsewhere as to possible dangers which may arise in regard to the reparation or the alteration of ancient buildings of an ecclesiastical character which have historic and æsthetic value beyond all words. But while I maintain that we are prepared to give attention, increased attention if need be, to the needs of such buildings in consequence of criticisms which have now been, happily, made from many quarters as showing what different people think on this subject, I am not in the least disposed as things at present stand to believe that any change for the better would come about by transferring from the ecclesiastical authorities to public authorities or to Parliament the buildings which are now subject to that ecclesiastical control.
But in view of the criticisms which have been rife on the matter the Archbishop of York and I have been considering carefully whether we could profitably take any step which would be likely to be advantageous to secure additional protection when changes are made so that they may not be made rashly and harm may not be inadvertently done. We have requested our chief ecclesiastical officer, the Dean of Arches, before whom all questions of faculty go on appeal, to make inquiry throughout the dioceses of England as to what are the precautions taken at this moment by our different ecclesiastical judges or courts to secure that no harm shall arise to the ecclesiastical buildings whose value is so immeasurable, and my belief is that we shall collect sufficient information in a short time to show whether or no it is desirable that we should forms late for our courts any further direction with a view to additional protection or whether that protection is adequately given at present. All that I am anxious to say is that this is not a case in which the ecclesiastical authorities are simply trying to push aside as contemptible or as unworthy
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of notice any criticisms made. We are prepared to give them the fullest possible consideration, while at the same time we believe, speaking largely, that the authority which at present controls these matters is the authority which can best control them in the years to come.
THE EARL OF PLYMOUTH: My Lords, I should like to express my pleasure at hearing those few words from the most reverend Primate. Strong feeling was expressed on this matter in the Joint Committee, and especially by the members of the Committee from another place. I welcome the remarks which the most rev. Primate has just made, for members of the other House and the public will now know that steps have been taken to institute an inquiry into the state of things, especially in reference to ecclesiastical buildings. While I entirely agree with what the Lord Archbishop said as to the advisability of not interfering with the jurisdiction and the authority of the ecclesiastical courts, I am very glad that he has been able to make the statement we have just heard, because I believe that it will make the passage of the Bill through the other House smoother and easier than would otherwise have been the case.
LORD SHEFFIELD: My Lords, I should like to say a word in support of what the noble Earl who was chairman of the Joint Committee has said. I feel sure that the action which the two Archbishops are taking will tend to conciliate a very strong body of opinion which feels that something substantial ought to be done to safeguard ecclesiastical buildings from misguided and ill-directed reparation which often means the destruction of the most interesting features. I think also that the assurance that the two most rev. Primates have secured the co-operation of a small committee, which probably will report in less than a year, will stave off opposition which otherwise would have made itself felt and might have led to a proposal for superseding the present ecclesiastical organisation, which we thought in the Committee, if properly set to work and properly guided, was quite adequate for the protection of those buildings which require a faculty for their alteration.
There was another matter brought very strongly before us which we thought

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belonged to a slightly different category, but in connection with which we all felt that protection was needed. I refer to the chattels held in connection with worship—chalices, church plate, and things of that sort, in connection with which faculties for sale have been granted too freely in the past on the ground that the stipend was too small or that the church wanted repair. In this way these things, which are as interesting historically as structural details, have been alienated. I hope that the committee which the two Archbishops have appointed will consider that matter along with the question of structures.
But there was a point not mentioned by the most rev. Primate. I refer to the fact that those buildings which are pre-eminent in the eyes of the general public—namely, the cathedrals and the great collegiate churches—do not need a faculty at all when altered. They are very much in the power of their deans and chapters. There, too, the Joint Committee were very anxious, while securing the conservative preservation of these buildings, not to raise contentious matters of the province of the Church and the State, and as far as possible to work on the lines of the existing ecclesiastical law; and it was felt that if the most rev. Primate, after consultation with the Bench of Bishops, could promote legislation which might apply to cathedrals something of the law which applies to other churches—something in the nature of a faculty, with the two Archbishops as the body to consider and grant faculties for cathedrals in the same way as the ordinary Bishops now do in respect of parish churches—it would be a great improvement. Of course, the most rev. Primates would consult the whole Bench of Bishops, and probably try collectively to come to some common course of action; and I am quite certain that if they proposed legislation with the practically unanimous consent of the right rev. Bench such legislation would, especially if it met the very strong feeling as to the preservation of these buildings, have a great chance of success. As the most rev. Primates have taken in hand the question of faculties for parish churches, I hope that they will not overlook those buildings which, in the eyes of the general public, are considered the more important and which stand more conspicuously in the ecclesiastical history of this country—namely the cathedrals.
LORD EVERSLEY: I desire to congratulate the noble Earl the First Commissioner of Works on the passing through your Lordships' House of a measure so complete and so full as this one. Compared with the Act for which I was responsible, this is a complete measure. That Act, indeed, was a merely tentative and permissive one, and the wonder is that it has not been amended and extended before. I refer to that Act merely to say that the late Lord Avebury was really the initiator of all this legislation for the preservation of ancient monuments. Of the many subjects which that noble Lord was interested in, I think there was none which he had more at heart than that of the preservation of ancient monuments. Indeed, he took his title from an ancient monument which he bought in order that it might be preserved to the public. The noble Lord for many years introduced measures on this subject, which passed Second Reading but owing to want of time were not carried further. It was at his instance that I endeavoured to legislate on the subject in 1882, and although I was not able to adopt his method of dealing with the subject yet the noble Lord gave me his full support in the measure which I introduced and carried in that year; and I am quite sure that had he been alive to-day he would have given his cordial and earnest support to the measure now before us.
On Question, Bill read 3a.
Clause 3:
Power to constitute Commissioners of Works guardians of ancient monuments.
[1882, ss. 2, 9; 1900, ss. 1, 2.]
3.—(1) The owner of any monument which appears to the Commissioners of Works to be an ancient monument within the meaning of this Act may by deed, with the consent of the Commissioners, constitute them guardians of the monument.
(2) The owner of any monument which appears to a local authority to be an ancient monument within the meaning of this Act, and is situate in or in the vicinity of their area may, by deed, constitute time local authority guardians of the monument, if the local authority consent:
Provided that the Commissioners of Works or the local authority, as the case may be, shall not consent to become guardians of any structure which is occupied as a dwelling-house by any person other than a person employed as the caretaker thereof or his family.
(3) Every person deriving title to any monument from, through, or under any owner who has constituted the Commissioners of Works or a local authority guardians of the monument under this section shall be bound by the deed executed

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by the owner for that purpose, and where the owner of any land being the site of a monument is a tenant for life or in tail, or heir of entail in possession in Scotland, having a power of sale of the land either under the terms of a will or settlement or under any Act of Parliament, the deed executed by the owner in respect of the site of which he is so tenant for life or in tail or heir of entail in possession shall bind every successive owner of any estate or interest in the land, and the execution of any such deed by the tenant for life or in tail or heir of entail in possession shall not render him subject to any liability on account of any depreciation of property attributable thereto.
(4) Where the site of a monument is, at the time of the execution of the deed, subject to any incumbrance not capable of being over-reached by the tenant for life under the powers conferred on him by the Settled Land Acts, 1882 to 1890, or by the instrument creating the settlement, the deed shall not bind the incumbrancer.
(5) Except as provided by this Act, the owner of a monument of which the Commissioners of Works or a local authority become guardians under this Act shall have the same right and title to, and estate and interest in, the monument in all respects as if the Commissioners or local authority, as the ease may be, had not become guardians thereof.
THE FIRST COMMISSIONER OF WORKS (Earl BEAUCHAMP): The first two Amendments standing in my name are intended to make the drafting of subsection (1) of Clause 3 correspond with the Amendment moved by Lord Curzon at the last stage. The noble Earl moved an Amendment which does not seem to have been carried out in the print of the Bill, and the two Amendments standing in my name are designed to make the wording of the subsection correspond with the Amendment as it appears in Hansard and as it was the general wish of the House it should be inserted in the Bill.
Amendments moved—
Clause 3, page 2, line 10, leave out, ("by deed"); line 11, after ("them") insert ("by deed").—(Earl Beauchamp.)
On Question, Amendments agreed to.
EARL BEAUCHAMP: The object of the next Amendment is to make the wording of subsection (2) correspond with that of subsection (1).
Amendment moved—
Clause 3, page 2, line 14, leave out from ("may") to the end of line 16, and insert ("with the consent of the local authority, constitute them by deed guardians of the monument").—(Earl Beauchamp.)
On Question, Amendment agreed to.
Clause 22:
Definition of ancient monument.
[1882, s. 11; 1900, s. 6 (1).]
22. In this Act the expression "monument" includes any structure or erection, other than an ecclesiastical building which is for the time being used for ecclesiastical purposes; and the expression "ancient monument" includes any monument specified in the schedule to the Ancient Monuments Protection Act, 1882, and any other monuments or things which, in the opinion of the Commissioners of Works, are of a like character, and any monument the preservation of which is a matter of public interest by reason of the historic, architectural, traditional, artistic, or archæological interest attaching thereto, or any part thereof, or any remains thereof, and includes the site of any such monument, or of any remains thereof, and any part of the adjoining laud which may be required for the purpose of fencing, covering in, or otherwise preserving from injury the monument, structure, or erection, and also includes the means of access thereto.
EARL BEAUCHAMP: I move to leave out from "and" ["for the time being used for ecclesiastical purposes; and"], and to insert the words in my Amendment. The object is to carry out the suggestion with regard to drafting which was made on Report by Lord Curzon and which we agreed to insert at this stage.
Amendment moved—
Clause 22, page 11, line 36, leave out from ("and") to the end of the clause and insert ("the expression ancient monument includes any monument specified in the Schedule to the Ancient Monuments Protection Act, 1882, and any other monuments or things which in the opinion of the Commissioners of Works are of a like character, and any monument or part or remains of a monument, the preservation of which is a matter of public interest by reason of the historic, architectural, traditional, artistic, or archæological interest attaching thereto, and the site of any such monument or of any remains thereof; and any part of the adjoining land which may be required for the purpose of fencing, covering in, or otherwise preserving the monument from injury, and also includes the means of access thereto").—(Earl Beauchamp.)
THE MARQUESS OF SALISBURY: I understand that this Amendment introduces no substantial alteration, but merely carries out in rather better drafting the clause as it stands?
EARL BEAUCHAMP: That is so. Lord Curzon's complaint was that the present drafting is cumbrous to a degree. The object of the Amendment is to improve the wording of the clause. There is no substantial alteration.
On Question, Amendment agreed to.
Second Schedule:

ENACTMENTS REPEALED.

Session and Chapter.

Short Title.

Extent of Repeal

45 &46 Vict, e. 73.

The Ancient Monuments Protection Act, 1882.

The whole Act except so far as it relates to Ireland.

63 &64 Vict, c. 34.

The Ancient Monuments Protection Act, 1900

The whole Act except so far as it relates to Ireland.

10 Edw. 7 &1 Geo. 5 c. 3.

The Ancient Monuments Protection Act, 1910.

The whole Act except so far as it relates to Ireland.

EARL BEAUCHAMP: The next Amendment makes it quite certain that the Schedule of the Act of 1882 for England and Scotland is kept alive as well as that for Ireland. It is a small point to which I hope I shall get your Lordships' agreement.
Amendment moved—
Second Schedule, page 14, line 17, after ("Ireland") insert ("and except the Schedule").—(Earl Beauchamp.)
THE MARQUESS OF SALISBURY: I have no objection to the Amendment, but I do not think it is an achievement of drafting. What we objected to at the last stage was that the Schedule for England and Scotland should be referred to after the Act, except so far as it relates to Ireland, had been repealed. That was so remarkable a performance that we thought it ought to be changed. The noble Earl has tried to meet us, and has done so by providing that, although the Act of 1882 is not repealed so far as Ireland is concerned, it is repealed for England and Scotland except the schedule. I know that wonderful things are done by draftsmen and by lawyers, but I must say I think this is a very strange method of making the law of this country. I should have thought that the combined wisdom of the noble Earl and his advisers might have produced something a little less Irish—may I say?—than the actual proposal which has been made. But so far as we are concerned we do not object to it. It does not do anything to carry out the Bill in any shape other than we would have it.
On Question, Amendment agreed to.
Bill passed, and sent to the Commons.
House adjourned at twenty-five minutes before Six o'clock, till To-morrow half-past Ten o'clock.