PUBLIC RIGHTS OF WAY BILL. [H.L.] (Hansard, 23 July 1913)

§ LORD EVERSLEY
I beg to move that this Bill be read a third time.

§ LORD HYLTON
I move to add at the end of Clause 2 the following proviso: "Provided further that nothing in this section contained shall apply to any highway which has been or shall be stopped up by an order of Quarter Sessions." The other day when the Bill was in the Report stage I ventured to point out to your Lordships a considerable danger that seemed likely to arise from the wording of this clause. The clause provides that "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." I would venture to remind the House that all over the South of England, at all events, there are still in existence a great number of old green lanes, tracks, and ways that in former days were public highways, but have been legally stopped up as such by the orders of Quarter Sessions duly and formally obtained. These roads, tracks, and lanes of which I speak have ceased for a great number of years to be repaired or repairable as public highways, but at the same time I need not remind your Lordships that they are not unimportant in number. They probably extend to many hundreds of miles all over the country. Although a great number of these old roads and lanes have ceased to be public highways for many years past, there is no doubt whatever that in a considerable number of cases the public have not been debarred from using them as footpaths. Whether the public legally have had a right to use them as footpaths after they have been stopped up by order of Quarter Sessions as public highways is a point which it is unnecessary for us to consider. It is the fact that in a great number of instances they have been so used.
Now under Clause 2 of Lord Eversley's Bill it is sought to enact that where for a period of twenty years a way upon or over any land has been actually enjoyed by the 1315 public such way shall be deemed to have been dedicated as a public highway. The effect, therefore, of the Bill, so far as I can understand, if passed in its present form, would be that in any case in which it was proved that the public had used any of these old roads, tracks, and lanes to which I have referred as a footpath for twenty years, it would revert to the position of a public highway, despite its having being properly and legally stopped up as a public highway by order of Quarter Sessions. What, then, would be the effect of my contention if correct? The effect would be that these old lanes and tracks would again become public highways; and the law relating to public highways is as follows. When a highway authority has failed to maintain and repair any public highway it is open to the parish council, or parish meeting where there is no council, to complain to the county council, under Section 16 of the Local Government Act of 1894, or steps can be taken under the Highways Amendment Act, 1868, and there is also the Common Law remedy by indictment at Quarter Sessions open to anybody in case of failure by the authorities to repair. Therefore, if Lord Eversley's Bill becomes law without some such Amendment as I have ventured to put down enormous expenditure might be caused to the rates of the county by a parish council forcing the county council, or proceeding under the Common Law or taking other steps, to put back this old disused stopped-up highway into a condition so as to be again used not merely as a footpath but as a highway.
In view of the really serious mischief which might ensue were the Bill not amended on this point, I have ventured to put down the Amendment standing in my name. I have great hope that the noble Lord in charge of the Bill will accept it, because of something he said the other day when we took the Report stage. He then said that he would be quite prepared to accept any Amendment which would make it clear that there would be no liability put on either a private individual or a public authority with regard to the repair of these ways which, under this Bill, will again become public highways. If that is so, I hope the noble Lord will accept my Amendment.

§ LORD EVERSLEY
I understand that the object of my noble friend opposite is to meet a case where Quarter Sessions have stopped up a road which afterwards the public have continued to use, and which, under this Bill, might again become a public highway. The noble Lord is under the impression that that would be a case of reverting to the original highway, and that the local authority would be again bound to repair it. I can assure my noble friend that that is not so. If such a case as that were to occur, it would be a new footpath and not a reverter to an old one; and under the Highways Act, 1885, it is absolutely certain that the local authority would not be bound to repair it. I think I must ask the noble Lord to take that from me as the state of the law. It is absolutely certain that in such a case it would be a new footpath, and the local authority would not be in any way bound to repair or maintain it. Therefore the proviso is quite unnecessary. It is a harmless proviso, but I do not think it is a wise thing to encumber this Bill with unnecessary provisions of that kind.

§ THE LORD CHANCELLOR (VISCOUNT HALDANE)
I only wish to say that I agree with the view of the law stated by my noble friend. I have read this Amendment with some attention, and I am wholly unable to see what effect it could possibly have if put into this Bill, except to make people wonder why it was put there. The Bill has nothing to do with old ways, nor with anything which can revive or restore them to their original condition. It is a Bill to deal with new ways; and what other meaning could be attached to this new proviso except that we in this House did not know what we were about, I am unable to conceive.

§ LORD HYLTON
I know that on Report the noble and learned Viscount on the Woolsack advised us not to put in another Amendment, but the House decided in its wisdom to do so. I am entirely in the hands of the House. I took legal opinion upon this—not, of course, comparable with that of the noble and learned Viscount—and I can assure the House that I was not trifling with it by putting down a frivolous Amendment. But I am entirely in the hands of the House whether to proceed with it or not.

§ THE MARQUESS OF LANSDOWNE
My noble friend, I think, succeeded in making his intentions perfectly plain to the House; but in view of the extremely confident statement made by the noble Lord who is responsible for the Bill, and in view of the support given to the noble Lord by the noble and learned Viscount on the Woolsack, I cannot help thinking that my noble friend would be wise not to press his Amendment.

§ THE MARQUESS OF LANSDOWNE
I beg to move the new clause standing in the name of my noble friend Lord Salisbury, who is unable to be here. I understand that the matter has been discussed between him and the noble and learned Viscount, and that there is no objection to the clause.

§ THE LORD CHANCELLOR
This Amendment is quite a useful one, because it deals with a particular point. It is conceived that if some one dedicated a way under this Bill, and afterwards was minded to fence it off, and it got out of repair, and some one remembered the old law of liability ratione clausurœ a serious question might arise. These words are directed to this specific point. Therefore, speaking for myself, I quite approve of it.

§ THE MARQUESS OF LANSDOWNE
There is another Amendment standing in the name of my noble friend Lord Salisbury which, I understand, is consequential. It is to leave out subsection (2) of Clause 4. I beg to move.