HL Deb 31 May 1938 vol 109 cc803-16

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Elton.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1:

Power to prohibit traffic on roads to be used as playgrounds.

1.—(1) The council of any county (other than the administrative county of London) or county borough, or borough or urban district, shall have power, for the purpose of enabling any roads within their area in respect of which the council are the highway authority, to be used as playgrounds for children, to make an order prohibiting or restricting, subject to such exceptions and conditions as to occasional user or otherwise as may be specified in the order, the use of any specified road by vehicles, or by vehicles of any specified class or description, either generally or on particular days or during particular hours: Provided that an order made under this section with respect to any road shall make provision for permitting reasonable access to premises situated on or adjacent to the road.

(2) No order made under this section shall be of any effect unless and until it is confirmed by the Minister of Transport, and the Minister, if he confirms the order, may confirm it either without modification or subject to such modifications as he thinks fit, but be shall not confirm an order until twenty-eight days at least have elapsed since the making of the order and, before confirming it, shall consider any objections which may have been made to him against the order and, if he thinks fit, may cause a public inquiry to be held.

(7) In the case of the administrative county of London an order under this section may be made by a highway authority as respects any road vested in them.

LORD ELTON moved, in subsection (1), to leave out "or," where that word first occurs, and insert "metropolitan borough." The noble Lord said: On behalf of the noble Lord, Lord Denham, whose absence through illness all of your Lordships will regret, I beg to move this and one or two other Amendments which stand in his name on the Paper. This first Amendment should be read in conjunction with another Amendment in the name of the noble Lord on the second page of the Marshalled List. The effect of this Amendment is merely to transfer metropolitan boroughs from subsection (7) to subsection (1). It does in effect have the result of saying in, I think, two words what is at present said in twenty-eight, and I think it may be called a drafting Amendment.

Amendment moved— Page 1, line 7, leave out ("or") and insert ("metropolitan borough").—(Lord Elton.)

On Question, Amendment agreed to.

LORD ELTON

The next is a drafting Amendment.

Amendment moved— Page 1, line 8, leave out the first ("or").—(Lord Elton.)

On Question, Amendment agreed to.

LORD ELTISLEY moved, in subsection (1), after "power," to insert "subject as hereinafter provided." The noble Lord said: In the absence of Lord Bay-ford, who is unable to get here till later in the proceedings, I desire to move this Amendment. I am sure the Committee will regret that illness has suddenly overtaken Lord Denham, who recently moved the Second Reading of this Bill in a maiden speech. I am glad to hear that the noble Lord is going on so well. The object of this and the next Amendment on the Paper is such that the two Amendments should be taken together. Their purpose is to ensure that classified roads shall not be used as street playgrounds. It would quite obviously be uneconomic, and indeed disturbing, for any classified road, which by the very fact of being classified must be part of the highway system of any area, to be closed to traffic or restricted to certain types of vehicles. But I am aware in moving this Amendment that it may be argued that the Amendment is unnecessary, because it is improbable that councils will wish to make orders for the use of classified roads as street playgrounds. It may also be argued that any orders made will have to be subject to an act of consent by the Minister of Transport, and that he would naturally withhold consent in any such case. I venture to say that those arguments are not very impressive when one considers them, as they suggest that merely because something is unlikely to happen no steps should be taken to meet even the possibility. If it is accepted that a classified road is undesirable to schedule as a street playground, then it is right, and indeed advisable, to prevent disputes or difficulties arising in the future by making quite clear in the Bill the view of the promotors that such classified roads are unsuitable for the purpose of street playgrounds.

I know it is often said that Government Departments do not like to exercise semi-judicial functions, and if that is really their view of the matter I venture to suggest that it might be well for the Government to make a gesture in order that the truth of that statement may be more strongly upheld. I personally deplore the tendency of this House to shelve its responsibility. Departmental orders and regulations are very often confusing and even conflicting, and I suggest that here is an opportunity for this House to give a plain, straightforward lead by indicating that it does not desire, and indeed does not intend, that such roads, where classified, should be diverted from the good and proper purpose for which they were built to other purposes. Moreover, we do not want to see local authorities endeavouring to divest themselves of their proper obligation to provide suitable playgrounds for the inhabitants of their areas, and making use of this Bill to that end, thus obviating or postponing their responsibility by saying to the public: "You have your playgrounds, you have your scheduled streets, and why should we incur further expense in equipping other grounds for that purpose?" For the reasons I have given I beg to move the Amendment which stands in the name of Lord Bayford and myself.

Amendment moved— Page 1, line 8, after ("power") insert ("subject as hereinafter provided").—(Lord Eltisley.)

LORD ELTON

I take it that the noble Lord who has moved this Amendment was speaking to both this and the second Amendment in the name of himself and Lord Bayford. With regard to the first, the insertion of the words "subject as hereinafter provided," the promoters of the Bill are advised that even if the second Amendment, which is in line 9, after "roads," to insert "not being classified roads," should commend itself to your Lordships, the first is unnecessary. It is not common form, and it is not necessary to cumber the Bill with these not very euphoneous words. With regard to the second Amendment, to which the noble Lord has been speaking mainly, I am sure all your Lordships will understand and sympathise with the motives of my noble friend. He wants to be quite sure, naturally, that classified roads are not used as street playgrounds. Also hovering at the back of his mind is the spectre, which has hovered at the back of the minds of most of us at some time or another, of the wicked Minister who is constantly encroaching on the prerogatives of Parliament, but I suggest to the noble Lord that this is not particularly favourable ground on which to give battle on that particular and admittedly important issue.

Your Lordships will not have failed to notice that in Clause 1 (2) the Bill provides that no order shall come into effect unless and until it has been confirmed by the Minister of Transport. I am sure, however poorly some of your Lordships may think of some Ministers of Transport, you can hardly suppose that the Minister of Transport, who after all makes a grant of sixty per cent. out of public funds for the maintenance of classified roads as roads appropriate to bear through traffic, would in the circumstances stultify himself by closing to all traffic the roads for which he is making that grant. However meanly some of your Lordships may think of the capacities of some future Minister of Transport, you can hardly suppose he would do that. I would ask your Lordships also to remember that the Minister, who has the power and the duty of confirming or refusing to confirm these orders, is not the Minister of Health, who might conceivably be prejudiced and weight the balance in favour of these street playgrounds; it is the Minister of Transport, whose whole statutory duty is to see after the rapid and effective movement of traffic. I really do not think that we can suppose that the Minister of Transport, who has to bear Parliamentary criticism on his discharge of that function, would so stultify himself as to close to traffic a classified road for which he was making a grant out of the public funds in order to maintain it in a state fit to bear traffic. I very much hope, and the supporters of the Bill hope, that the noble Lord, who, we all know, has every sympathy with the object of this Bill, will not press this Amendment.

LORD ELTISLEY

With the permission of the Committee I beg leave to withdraw the Amendment, though I must say I do not share the confidence in future Ministers of Transport expressed by my noble friend.

Amendment, by leave, withdrawn.

LORD ELTISLEY moved, in subsection (1), after "Provided that," to insert:

  1. "(a) an order under this section shall not be made with respect to any claimed road within the meaning of Section thirty-two of the Local Government Act, 1929, without the consent of the council of the county in which such road is situated; and
  2. (b)"

The noble Lord said: The reason for this Amendment is much the same as the reason for my previous Amendment. The council of an urban district council with a population exceeding 20,000 persons is entitled to claim the repair and maintenance of county roads in its district, but the county council still remains the highway authority for the administrative county as a whole and is very vitally concerned to secure the proper flow of traffic through the area under its jurisdiction. It is not inconceivable, although probably not very likely, that a district council might make a street playground order in the light only of the traffic requirements of the immediate area under its jurisdiction, and without visualising the effect of such an order on the surrounding county areas. Therefore it is essential that the consent of the county council should be madea statutory requirement before the smaller local authorities could be empowered to close the road for the purpose of a playground.

Amendment moved— Page 1, line 18, after ("that") insert the said paragraph.—(Lord Eltisley.)

LORD ELTON

Again the supporters of the Bill are in entire sympathy with the motives of the noble Lord, only we feel that the Amendment is not really necessary. The anxiety of the noble Lord is entirely intelligible. He remembers that an urban district council under the Local Government Act, 1929, may claim to exercise various functions of maintenance and repair on a county road within their district. The noble Lord is quite naturally afraid that they might therefore claim to exercise the powers to be granted under this Bill within their area, and he wishes that they should receive authority beforehand from the county council. I hope I may be able to convince the noble Lord that this is not really a necessary Amendment, because your Lordships will notice that in line 10 of Clause 1 these powers are specifically conferred upon "the highway authority." It is the opinion of the Minister that the urban district council which may claim to exercise these functions in respect of county roads within their own urban district area do not by that claim make themselves the highway authority, and therefore they are not qualified to exercise the powers conferred by this Bill.

I think that will be quite clear to your Lordships if you remember that under the Local Government Act, 1929, Section 32 (the section to which the noble Lord has referred), where powers are granted to the urban district council to exercise certain functions of maintenance and repair of roads within their area, it is specifically stated that they should exercise these functions as if they were, as respects that road, the highway authority. That makes it, I think, quite clear that they are not the highway authority, and that therefore they would not qualify to exercise any of the powers to be granted by this Bill. The Minister is quite clear that the urban district council claiming are not the highway authority, and therefore would not come under this Bill. I hope your Lordships will be prepared to accept his assurance.

LORD ELTISLEY

If the legal interpretation of these particular words is so patently clear as my noble friend suggests, I do not wish to press the Amendment.

Amendment, by leave, withdrawn.

LORD ELTISLEY moved, in subsection (2), after "until" ["until twenty-eight days"] to insert "the council by whom the order was made have given in a newspaper circulating in the area in which the road is situated notice of the making of the order, with an intimation that any person objecting to the order may send particulars of his objection to the Minister, and until." The noble Lord said: It is clearly desirable that all persons likely to be affected by a street playground should be given every reasonable opportunity of being heard and of their objections being thoroughly gone into. For this reason it appears desirable that public notice of any proposal to make an order as contemplated under this Bill should be given, and it is thought that an official announcement in the local Press is the best way of giving such notice. I beg to move.

Amendment moved— Page 2, line 3, after ("until") insert the said words.—(Lord Eltisley.)

LORD ELTON

I should be willing to make some concession to the noble Lord, but this Amendment falls under the same criticism as I had to make regarding the noble Lord's last Amendment—namely, that it is really superfluous. Your Lordships will notice that under subsection (6) of Clause 1, the Minister of Transport is empowered to make regulations. There are in existence regulations made by the Minister under the analogous Road Traffic Act, 1930, amended by the Road and Rail Traffic Act, 1933, and there is one regulation—Regulation No. 4—which exactly meets what the noble Lord desires. That regulation provides that when an order has been made, the order in the form and containing the particulars specified in the First Schedule shall be published by the council once at least in each of two consecutive weeks in some local newspaper circulating in the district in which the road is situated. The Minister in another place gave the assurance that the regulations to be made under this Bill would exactly follow the analogy of the regulations made under these two former Acts. I hope, therefore, that will meet the noble Lord's natural anxiety.

LORD ELTISLEY

In withdrawing this Amendment, I would explain that all these Amendments have been moved on behalf of a very responsible body—namely, the County Councils' Association.

Amendment, by leave, withdrawn.

LORD ELTISLEY moved, in subsection (2), after "order" ["against the order"] to insert "and also the traffic value of the road." The noble Lord said: If the Minister could give an assurance that the traffic value of any given road will always be one of the principal points he will take into consideration before confirming any order, I do not wish to press this Amendment.

Amendment moved— Page 2, line 6, after ("order") insert ("and also the traffic value of the road").—(Lord Eltisley.)

LORD ELTON

I am sure the Minister would be prepared to give that assurance, but even without the assurance your Lordships will recognise that it is, after all, the Minister of Transport and not the Minister of Health who has to confirm these orders; and he is bound—he would stultify himself if he did not—to take into consideration the traffic value of the road. If the noble Lord read the debate in another place he probably recognised that the Minister there expressed himself ready to give that assurance if it were thought necessary.

LORD ELTISLEY

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD ELTISLEY moved, after subsection (2), to insert: (3) As a condition of confirming an order made under this section, the Minister may require the council by whom the order was made to undertake to make good any damage caused to persons or property in consequence of the use of the road as a playground The noble Lord said: I beg to move this Amendment. It is thought that when a road is used as a street playground it may very well result in injury to individuals or damage to the fabric or amenities of adjoining property. The suggestion in this Amendment is that there should be power to place on the council mainly concerned definite responsibility for making good, as far as may be practicable, any such injury or damage. It may be that those in charge of the Bill will object to this proposal on the ground that a person whose property is damaged by such use of the road has got a definite remedy under the ordinary law. I do not wish to minimise in any way the chance of being able to deal with this particular matter in that particular way. At the same time I would point out that the children by whom the damage may be done will be children attending public elementary schools or small secondary schools, and that proceedings against their parents—I take it that would be the remedy at law—are not likely to result in financial satisfaction. Therefore it seems only fair that there should be somebody at whom the persons whose property has been damaged would be able to shoot.

It may be that householders will not welcome the transformation of a quiet street into a noisy playground, and if, in addition, they are to run the risk of having personal damage or damage done to their property for which they can get no real redress, then they have a very definite grievance. The proposal is that the responsibility should lie with the authority. I do not for a moment suggest that the authority would be saddled with a heavy obligation, but at any rate they would have a small risk, and it would be easy for them to insure against that risk or meet it out of their ordinary current resources.

Amendment moved— Page 2, line 7, at end, insert the said subsection.—(Lord Eltisley.)

LORD ELTON

Here my noble friend is really for the first time moving an Amendment which strikes at the roots of the Bill. I am not able to say that this is merely superflous; I think it is rather a dangerous Amendment. In the first place it clearly introduces an important alteration of general law. I do not think there is any precedent for requiring a third party to make good damage done by somebody else in this way. As the noble Lord has said, the aggrieved householder, if there should be an aggrieved householder, has his rights already existing under the Common Law. It is clear that if you threaten the local authorities with the possibility that they may have to make good unspecified damage caused in these streets, the effect would probably be, in a number of localities, to make the measure a dead letter. That has been the view expressed by the Urban District Councils' Association—that a number of authorities would not use the permissive powers under this Bill if there was a vague possibility that such a claim would lie over them. I do not suggest that there is likely to be damage done. We are informed by the Ministry that in the two towns where, under Private Acts, these powers have already been granted, as far as they are aware, there have been no cases of damage—certainly none brought to their notice.

I do not think it is in the least likely, but it is one of those cases where the vague threat that, a local authority might be required to make good damage done, thereby introducing an entirely novel principle into the Common Law, would very likely have the effect of making the Act a dead letter in quite a number of localities. Whether or not it would have the effect of reducing the temptation to the child to do damage, I am not entirely clear; whether saying to the child, "Any damage you do will be made good by somebody else," is necessarily the best way of restraining the child from doing damage, is at least uncertain. But I am clear that the effect would probably be to reduce the Bill to something like a dead letter. Moreover, the Minister is clearly of opinion that it would be very embarrassing for him to have the powers which the noble Lord seeks to confer on him, as he is not in the least clear on what principles he would decide whether or not he should exercise those powers. As, therefore, the Minister seeks not to be charged with these powers, and as a number of local authorities have expressed the view that if this Amendment were carried it might reduce the working of the Bill to a dead letter, I do hope that the noble Lord, who, I know, is anxious to see the Bill carried and working successfully, may possibly see his way to withdraw this Amendment.

LORD STRABOLGI

It is not often that I have found myself in agreement with the noble Lord, Lord Elton, at least not in recent years, but I do wholeheartedly support him on this occasion What is the damage these children will do playing in the road? They might put a cricket ball through a window. They might do that in any case whether or not this Bill were passed. In view of what has been said that this Amendment might cause the Bill to become a dead letter, I hope the noble Lord will withdraw it.

VISCOUNT MERSEY

Might I ask the noble Lord who moved the Amendment whether his object is that if, as a result of children playing ball, half a dozen panes of glass should be broken, then the householder would have redress from the local authority for the damage done?

LORD ELTISLEY

I did not visualise that particular thing arising; but generally speaking, if a child did damage and injured the legitimate and proper interests of the householders the local authority would be responsible. I cannot see why the local authority should not be responsible. It has taken over the road as a playground, and the householder has bought his house or become tenant of it in good faith, and if his window is broken he should be entitled to compensation, I think.

LORD ARNOLD

The noble Lord says he cannot see why the local council should not be responsible. The reply to that is the argument advanced by the noble Lord, Lord Elton, that if you put this into the Bill it will undoubtedly in a considerable number of cases—I think in the great majority of cases—make the Bill a dead letter. That is the reply. The local council will not incur this liability, it is quite true, though the liability is probably trivial; in fact we are told that in the two cases where powers have been taken by Private Acts similar to those in the Bill and are in operation there have been no cases of damage. But, as my noble friend Lord Strabolgi has pointed out, what would the damage be? I have a case in mind of which I have some knowledge. It was a broken piece of glass, and the window actually belonged in that case to the local authority. Can you conceive of a more heinous crime than for a small boy to break a piece of glass belonging to a local authority! What happened? Nothing. The local authority made representations, they were met with the retort that boys would be boys, and they replaced the glass.

It might be urged that the possibility—I will not put it higher than that—of personal damage exists. I think it is extremely remote, because, as I understand it, the vast number of the street playgrounds will be in the nature of courts and alleys; they will not be through roads at all; and the probability of some person getting hurt by a cricket ball or otherwise when children are playing in one of these courts and alleys is really extremely remote. In my younger days I had a good deal of experience in these courts and alleys trying to do a little good amongst the poor, and I think that what has been suggested may very largely be ruled out. In any case the injured person, if he desires to take action, has his remedy at Common Law. True, the noble Lord may reply: "Yes, but those who cause the injury are probably people of small means." I think that is really something which must be risked. It seems to me that keeping a proper perspective, having regard to the national fitness campaign and so forth, this is a Bill of some considerable importance, which I am sure the noble Lord does not wish to kill, and I feel that this would be a most destructive Amendment. On balance the arguments are strongly against it, and I hope the noble Lord will not press his Amendment.

LORD ELTISLEY

In view of what has been said in the House, and in view of my own ignorance of the fact that this apparently humble Amendment runs counter to the Common Law of the land, I venture to ask leave to withdraw it.

Amendment, by leave, withdrawn.

LORD SANDHURST moved to insert after subsection (4): (5) When an order is in force under this section authorising the closing of a street for use as a playground for children, the highway authority shall place and maintain a warning notice at each road entrance to the playground intimating to the drivers of vehicles that it is a street playground and specifying the hours when it may be used for that purpose and the restrictions on the use of the road by vehicular traffic.

The noble Lord said: In the absence of the noble Earl, Lord Howe, I promised that with your Lordships' consent I would move this Amendment. Although it is a simple thing, it is very obvious that something of the kind provided for in this Amendment is necessary. I cannot imagine any local authority scheduling a street and not marking it, except possibly through inadvertence or carelessness of their employees. On the other hand, if you did have a street scheduled and nothing to show that a car must not go down it, it might make a hunting ground for the police chivying cars about and chasing them off, and the purpose of having the street as a playground would be largely destroyed. I think the case might be met if we were given an assurance that regulations would be drawn up for these streets by the Minister of Transport, who would include in the regulations a requirement that such notices should be put up at the entrance of each street. I beg to move.

Amendment moved— Page 2, line 5, at end insert the said subsection.—(Lord Sandhurst.)

THE EARL OF ERNE

This Amendment was moved in another place and the Parliamentary Secretary to the Ministry of Transport gave this assurance which I should like to repeat to your Lordships: I have here the regulations which were made under Section 46 of the Road and Rail Traffic Act, and paragraph 7 (b) says: 'The Council shall cause to be erected on or near to the roads such notice in such positions as may be approved by the Minister.' He went on to say: I can give the Committee the assurance that regulations on those lines will be made and that the wording of the Bill is such that the Amendment is unnecessary.

LORD SANDHURST

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD ELTON

The next two Amendments standing in Lord Denham's name are drafting. I beg to move.

Amendments moved— Page 2, line 18, leave out ("made") and insert ("in force") Page 2, line 33, leave out subsection (7).—(Lord Elton.)

On Question, Amendments agreed to.

Clause 1, as amended, agreed to.

Clauses 2 and 3 agreed to.

Clause 4:

Application to Scotland.

4. This Act shall apply to Scotland subject to the following modifications:— (a) the powers conferred by subsection (1) of Section one of this Act on the councils therein mentioned shall be exercisable, in a county by the county council, and in a burgh by the town council;

LORD ELTON

The first two Amendments to this clause down in the name of the noble Lord, Lord Denham, are drafting. I beg to move.

Amendments moved— Page 4, line 8, after ("exercisable") insert ("as regards roads") Page 4, line 9, after ("and") insert ("as regards roads").—(Lord Elton.)

On Question, Amendments agreed to.

LORD ELTON moved to insert after paragraph (a): (b) in subsection (5) of Section one of this Act for the words 'on summary conviction' there shall be substituted the words 'on conviction by a court of summary jurisdiction'. The noble Lord said: This is merely necessary to provide for the slightly different local circumstances in Scotland. I think it may be called drafting.

Amendment moved— Page 4, line 9, at end insert the said paragraph.—(Lord Elton.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Remaining clause agreed to.