§ 4.9 p.m.
§ Order of the Day for the Second Reading read.
§ THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD LUCAS OF CHILWORTH)My Lords, when one considers the danger to road users of straying cattle, the hurt and injury to the cattle themselves, and also the thousands of acres of land that remain unstocked because of the physical inability of the farmer to look after straying cattle, I think your Lordships will agree that the case for this Bill is made. I do not think that in your Lordships' House I need go to the trouble of explaining what a cattle-grid is. Neither do I think it necessary to explain to your Lordships why gates are ineffective for the purpose for which they are used, except perhaps to say that gates are things which most people use and leave open. But I think I should explain shortly why it is necessary that the existing law should be altered. It is because the highway is a public right of passage, to be enjoyed by all lawful traffic, and if a cattle-grid installed without lawful authority obstructs free passage, action can be taken in the courts. The Bill is not concerned with cattle-grids on private land over which there is no public right of way. Interfering with no public rights, they need no 989 statutory authority. But over the last twenty years, highway authorities have installed some 180 cattle-grids, all of which might be considered to be illegal. The Cumberland County Council took powers in 1948 under a Local Act for themselves and other authorities in the county to install cattle-grids on roads. Clause 16 of this Bill provides a procedure for legalising unauthorised grids, subject to the Minister's approval.
Before I pass to the Bill itself, it may be for the convenience of your Lordships if I make one or two remarks upon the most important points. Since this Bill was published there has been some mystification as to how the laying of a cattle-grid is initiated. Under the provisions of the Bill, the initiative takes place through the appropriate authority (I will describe to your Lordships in a moment or two what is meant by "the appropriate authority"; it is defined in Clause 1), and also through all those, such as farmers or land owners, who have an interest. The initiative can come from an outside body, such as the National Farmers' Union, for instance, who watch over and are ever vigilant for the farmers' interests. It can come from the R.A.C. or the A.A., on behalf of road users, who could approach the appropriate authority to see whether or not a cattle-grid could be installed for the safety of road users. In fact, any citizen has the right to approach his local authority, or the "appropriate authority", which will be the highway authority, to see whether a cattle-grid can be installed.
The other point I should like to mention is the question of safety. In England there are already fitted upon highways about sixty grids, and two accidents have happened, both to Exmoor ponies, at one grid on Exmoor. In Scotland, where there are about 120 grids, there have been ten accidents—one to a pedal cyclist, five to She land ponies, and four to other animals. Eight of the nine accidents to animals in Scotland look place in Zetland, and, so far as my information goes, only one of the accidents led to the destroying of the animal. In the opinion of my right honourable ft end the Minister of Agriculture, who supports this Bill—as I believe the noble Earl will say all agricultural interests do—the degree of non-safety (if I may put it in that way) of cattle-grids is infinitesimal. My right honourable friend supports it on the 990 ground that agricultural interests are insistent that something must be done to enable them to graze the thousands of acres of land to which I have referred that are now ungrazed.
The Department of Agriculture for Scotland support that view, but have some comments to make upon the technical design of a grid. This is rather interesting. I am informed by my right honourable friend the Secretary of State for Scotland that it is very necessary—and perhaps the noble Earl will give us the benefit of his advice upon the point —that the spacing of the bars of a cattle-grid should be wider than the hooves of the animals it is designed to keep in. I am informed by my right honourable friend the Secretary of State for Scotland that in Scotland animals learn to negotiate these grids. I can find no support for that in England, so I must put it down to the superior knowledge of the Scottish animals. It is necessary that all technical points such as that should be carefully inquired into, and they will be examined and covered by technical advice which my right honourable friend the Minister intends to issue to all authorities before the Act is brought into operation.
The general scope of the Bill authorises the installation and maintenance of cattle-grids in highways, with alternative provision for any lawful traffic which is unable to pass over the grid; the alteration or improvement of a grid once installed; and the removal of a grid that has become redundant. The Bill also deals with the liabilities of the authority as respects the repair of cattle-grids, the provision of traffic signs relating to grids and the suspension of any rights to maintain gates across roads when cattle-grids are provided in their place. The Bill enables the authority to acquire any necessary land, compulsorily if need be, and to enter into an agreement for the use of land, and to receive by agreement contributions towards their expenses from persons interested in the provision of cattle-grids.
The Minister, as highway authority for trunk roads, will be able to exercise those powers in respect of those roads, and will be authorised to make grants from the Road Fund towards the expenditure of local highway authorities who exercise the powers on their roads. The Minister will 991 be empowered to make regulations, in his discretion, about the placing and construction of cattle-grids, and also for the purpose of authorising the installation of cattle-grids at the side of, instead of on, the highway. The principle that has been adopted throughout the Bill is that in providing cattle-grids the authority must so arrange matters that all traffic which hitherto lawfully used the road will still be able to do so when the grid is there, either by crossing over the grid or else by passing round it: in other words, whatever cannot get over, must be enabled to get round.
Clause 1 sets out the appropriate authorities, and they are highway authorities. But there are roads which, although vehicular traffic has a right of way along them, are not maintainable by highway authorities but by other persons or bodies, or sometimes by nobody at all. In order that cattle-grids may be placed and maintained in such roads the powers of the Bill will be exercisable by the local authority who would be the highway authority for such a road in that area if it were publicly maintainable. In England and Wales, the appropriate authority in relation to a road of this kind will be the county council, the county borough council, the borough council or the urban district council in whose area the road lies. In Scotland it will be the town council, if the road is in a burgh, and the county council if it is not; and if it is a right of way which a district council has the power, though not the duty, to maintain, it will be the district council.
It is left to the discretion of the appropriate authority to exercise the power of providing cattle-grids without any formality such as advertisement or the consent of the Minister, always provided —and this is of particular importance— that the installation of a grid, or the making of a road round it, or outside the limits of the highway, making a by-pass, does not infringe a public or private right —for instance where encroachment upon common land is proposed, where an existing right of way may be interfered with or where suspension of the right to gate roads is proposed. When any of these things happen, the Schedule is brought into operation. The Schedule provides for publication of the authority's proposals and gives the interested parties 992 a right to object and to bring their objections before the Minister for consideration. If publication elicits no objections in the prescribed period—which is not less than twenty-eight days—or any objections made are withdrawn, there are no further formalities and the authority can proceed with the proposals.
In the Bill, as originally introduced in another place, there was a limited derogation from the principle that an alternative way round a cattle-grid must be provided. During the passage of the Bill that discretion was deleted from Clause 1 (1). A similar discretion had been provided for at two points later in the Bill—Clause 1 (6) and Clause 2 (4). These were not deleted but, at the appropriate stage of the Bill in your Lordships' House, I propose to put down Amendments, together with the necessary consequential Amendments in the Schedule, to remove these provisions, as they are now inconsistent with the Bill as presented to your Lordships' House this afternoon.
Clause 2 authorises, with certain limitations, the removal of cattle-grids or by-passes which are no longer required. Noble Lords will appreciate that some grids may have outlived their usefulness and be no longer needed. There is one point which I think I ought to make here: if a by-pass has been constructed around a grid which it is proposed to remove and a right of way has been given over the by-pass, if the grid is removed, the right of way may be extinguished or it may not. It may be convenient to leave it there for the use of the public. But if the by-pass incorporated part of a previous right of way, that must be restored and any works which obstruct it must be removed.
Clause 3 deals with the liabilities of the authority for the repair of cattle-grids and involves the very difficult and contentious subject of non-feasance. If your Lordships will bear with me, I will explain how it is applied to this Bill. The general law in England, as interpreted by the courts, is that if a road was properly laid in the first instance and was fit for traffic when first opened, the fact that it may subsequently become unfit or dangerous for traffic imposes no liability upon the highway authority. A highway authority are liable for damage or injury due to direct acts which they performed in the construction or repair of a 993 road; but they are not liable for damage or injury alleged to be due to the fact that they did not do something which they might have done. If a highway authority, in carrying out works of construction or repair on a highway, did so negligently or incompetently, thereby creating a danger, that would be misfeasance, and any person who suffered damage or injury in consequence of that misfeasance could bring a claim against the authority in the courts. The mere omission to maintain a highway, initially safe, so as to prevent deterioration, on the other hand, would be nonfeasance, and would expose the authority to no such claim. Following recent decisions of the courts, it is believed that it would be held that an appropriate authority who provided a cattle-grid and ancillary works would be liable for any consequences of their failure to keep it in good repair. This is what subsection (1) of Clause 3 is intended to achieve. Subsection (2), on the other hand, is intended to give the authority the benefit of the doctrine of non-feasance in relation to the actual surface of a by-pass, just as they would have it as respects the surface of any other road repairable by them as a highway authority. So subsection (2) follows established highway law. Clause 4 simply makes provision for the repair of cattle-grids and by-passes in Scotland.
Clause 5 provides for agreements between authorities for the installation of a cattle-grid on a road for which the highway authority are not the appropriate authority but which connects with one for which they are. If there is any dispute and the authorities cannot come to any arrangement, they are entitled under the Bill to refer the matter to arbitration, and in this case the Arbitration Acts come into operation. In Scotland, in the event of a dispute on this matter, arbiters are appointed by the court of session or the sheriff and the appointment may contain conditions that questions of law are to be referred to the court of session. Clause 6 gives appropriate authorities power to erect suitable traffic sign; in relation to cattle-grids, to prevent the erection of anything but the prescribed signs and to secure the removal of any unauthorised signs.
Clause 7 provides for the suspension of any rights to maintain gates across 994 highways where cattle-grids are installed and are adequate substitutes for gates. But if there is any interference with legal rights, or if there is any dispute as to whether or not a grid is an adequate substitute, then the Schedule is attracted. Clause 8 provides for the acquisition, compulsorily if necessary, of land required for the provision, alteration or improvement of a cattle-grid or by-pass. The Acquisition of Land (Authorisation Procedure) Act, 1946, is applied and governs the procedure. Clause 9 empowers authorities is enter into agreements with persons interested in land so as to obtain the right to use that land for the purpose of providing, altering or improving a cattle-grid or by-pass and to secure to the public the right of passage over the land. This may, we think, do away with the need for outright purchase.
Clause 10 provides for contributions towards the appropriate authority's expenditure to be made, by agreement, by persons who desire cattle-grids to be installed. We think that agreement will not be uncommon, as farmers and landowners have already agreed to contribute in certain cases. Clause 11 empowers the Minister to make regulations as to the construction or installation of cattle-grids, by-passes and works, though this power we hope will be kept only as a reserve power, because we think that the technical advice and the conditions attached to a grant will be just as effective. Clause 12 enables the Minister to delegate his functions as an appropriate authority under the Bill to the agent authorities to whom he delegates the maintenance, repair and minor improvement of trunk roads. Clause 13 empowers the Minister to make regulations authorising the placing of a cattle-grid at the side of the road instead of on it, gating the road instead of the by-pass I there is no existing gate, and modifying the Bill so far as necessary to make it applicable in such circumstances. The reason for this is that the Bill is designed to authorise the placing of the cattle-grids in highways. There might be a case, although I should think very rarely, where it would be better to place the grid beside the highway. There may also be some existing installations of this kind which it might be reasonable for the appropriate authority to take over.
995 Clause 14 extends the Minister's powers to make grants from the Road Fund so as to enable him to make such grants towards expenditure incurred by the appropriate authorities in exercising their powers under the Bill. It also authorises expenditure by my right honourable friend as the appropriate authority for trunk roads. Clause 15 is purely definition. Clause 16 deals with cattle-grids and by-passes already provided in highways, either without legal authority or, in the cast of the County of Cumberland, under a local enactment, and provides a procedure for legalising unauthorised grids, subject to the Minister's approval. The Minister, of course, may attach conditions to his approval. Clause 17 provides for the Bill to come into operation on a date to be appointed by the Minister, except that the provisions of Clause 16, which give power to legalise existing unauthorised cattle-grids, will come into force immediately upon the passing of the Bill. The Schedule lays down the procedure in cases of dispute and any ancillary matters. That is the Bill to which I ask your Lordships to give a Second Reading.
§ Moved, That the Bill be now read 2a.—(Lord Lucas of Chilworth.)
§ 4.32 p.m.
§ EARL DE LA WARRMy Lords, I need detain your Lordships for only a few moments on a Bill on which I am sure there is complete agreement in the House. I should like to thank the noble Lord, Lord Lucas of Chilworth, for his extremely full explanation of the Bill. This is particularly important, because, in another place, it did not receive the attention which some of us might have desired. This is a small Bill, and some of us smiled at the prominence it received in the gracious Speech; but that does not mean that it is not exceedingly important to the proper development of our hill lands, about which we hear so much to-day. Undoubtedly the Bill will help in regard to all the livestock on the hills, and particularly it will help us to get what we all desire, more hill cattle.
It is difficult to generalise, but sheep tend to settle themselves, to heft themselves, on these grazings, while cattle wander, and in some areas it is hopeless to think that without proper fences and gates we can get cattle to stay on their 996 grazings. The noble Lord is right about gates being a nuisance, and undoubtedly the motorist all too frequently tends to express his or her resentment, either consciously or unconsciously, by leaving gates open. I agree with what the noble Lord said about the safety of these grids. That is a matter of design, and I certainly agree with his point about the width between the rungs. It is also, I think, largely a question of the width of the grid itself. If we make it too narrow the cattle begin to think they can jump it, and in other countries I have seen them jump it—and of course periodically they miss their footing and get into trouble.
On the question of how far this Bill is going to take us, I understand that the expenditure is to be restricted to £10,000 a year. If the cost of the grids is something between £250 and £300 each, that means that we are likely to have just under forty grids a year. I read an account of the conference held in Cumberland the other day between the highway authority, the National Farmers' Union and the Central Committee of the Landowners' Association. Their generally agreed estimate was that between 400 and 500 grids were needed in that county alone, at an estimated cost of over £125,000. We shall not make much progress if only £10,000 a year is to be allowed, and if the cost of the cattle-grid is likely to approach £300. I do not profess to have any technical knowledge of this matter, but I have interests in other countries where we ourselves have made these grids. It is true that they are "home-made," but we have ten-ton lorries passing over them. It is also true that costs present a difficult problem in Africa, though African labour is not so much cheaper than white labour, when one counts the number of Africans required. But the cost of our grids is well under £50 each, and I feel somewhat at a loss to understand the general acceptance of the very high figures which have been quoted to-day. We know what really happens: once officials and technicians get together to make a plan, they so increase the specifications and complications of everything that we have to pay "through the nose." I would ask the noble Lord whether he will be good enough to have that point considered.
There will be a few Amendments to the Bill from this side, but they will be 997 small ones. Some of them were discussed in a preliminary way in another place, and the Government have already promised to give them some consideration. Therefore, it is not necessary to trouble your Lordships with them at the present moment. I hope to have some discussion with the noble Lord about them, perhaps before we come to Committee stage. I should like to give a general blessing to the Bill from this side of the House and to congratulate the Government on introducing it.
§ 4.38 p.m.
§ LORD POLWARTHMy Lords, I should like to raise one or two points, as this Bill will have a great effect in Scotland. It is typical of the versatility of your Lordships that within three days we should cover such widely divergent subjects as the reorganisation of human society and the provision of cattle-grids on highways. That is turning from the utterly impracticable to the thoroughly practical. This Bill will be particularly welcomed in Scotland, because proportionately a much larger area is unenclosed hill and crossed by public roads than is the case in England. I know that this Bill will be to the benefit not only of the farmers but of the road users.
My first point concerns the question of the grants made by the Ministry of Transport. The noble Earl, Lord De La Warr, mentioned the total sum that was considered likely to be granted. I know that this does not appear very great in relation to the possible number of grids required; and I think the reason is not far to seek. It is not generally realised that by far the greater number of grids will be required on unclassified roads, for which local authorities are responsible and which are not eligible for any grant from the Ministry of Transport. Therefore, these grids will not be eligible for grant and the total cost of grids on these unclassified roads—which certainly in Scotland will make up by far the greater number—will be met either by the rate or by contributions from those who will benefit by their installation.
There has been some difference of feeling about Clause 10, which enables these contributions to be asked for from those who may benefit from the installation of grids. It is reasonable that where a farmer or land owner will derive benefit by having increased grazing, he should 998 make a contribution towards having the grid installed. But I hope that it will not become a regular practice for local authorities automatically to demand in all cases that the owners of land should be made to contribute. After all, the grid is an integral part of the highway, and is designed to facilitate the passage of traffic. On this quest ion of contributions, I should be grateful to the noble Lord if he would make two points clear. Can he assure us that after the grid has been installed there will be no further liability for its upkeep on the person who has contributed to it? In other words, will the local authority he entirely responsible for its maintenance? Secondly, in the event of any accident or injury, I feel that there should be no liability on the same person for damages in respect thereof.
There is a further point upon which I hope the noble Lord will be able to throw some light. Your Lordships will remember that several years ago we passed in this House two Hill Farming Acts, which enabled capital grants to be made to the owners or occupiers of hill land. One of.the items in the Schedules to those Acts concerned grants towards the installation of cattle-grids. As it turned out, that provision was in fact applicable only to cattle-grids installed on private roads. As the noble Lord, Lord Lucas, has explained, until this Bill becomes law all these cattle-grids are probably illegal on private roads. I feel that if the owner of hill land who is taking part in a scheme under the Hill Farming Act is asked for a contribution for a grid on his land he should be eligible to receive a grant under that Act towards the cost of that grid. That may seem a small point, but I believe it will be found, particularly in Scotland, that a great number of these grids will be on land on which schemes ate being pushed forward under the Hill Farming Act.
The noble Lord, Lord Lucas, referred to possible dangers arising from these devices in the case of an unfortunate cyclist who was engulfed in one. So far as I understand it, the handlebars of a bicycle run at right angles to the road and at right angles to the normal course pursued by the cyclist; so I suggest that only a very inefficient cyclist would allow himself to be ensnared in one of these grids. We feel that this is a useful Bill, and even if this Parliament achieves nothing more 999 in its span of life, I am sure that noble Lords opposite will be pleased for this Government to go down in history as the Government who gave us cattle-grids.
§ 4.44 p.m.
LORD SALTOUNMy Lords, there is one question I should like to ask before the noble Lord replies. These cattle-grids may get damaged, and if somebody gets his foot caught and wrenches an ankle, or something like that, has he any claim for damages; and, if so, how is it dealt with? That is always the possibility with cattle-grids made as they are.
§ 4.45 p.m.
§ LORD LUCAS OF CHILWORTHMy Lords, I am grateful to noble Lords for the reception they have given to this Bill, and I will detain your Lordships for only a few moments in answering the specific questions I have been asked. With regard to the question of cost, I am amazed at the difference between the cost of £50 in Africa and the cost of £300 to £400 in this country. The first thought that occurs to me is that if the noble Lord forms a company under private enterprise, called possibly De La Warr Cattle-Grids Limited, and offers to supply those grids to local authorities at £50, he will at once achieve the best monopoly there is in this country.
§ EARL DE LA WARRThe noble Lord's colleagues will take away my profits in taxation.
§ LORD LUCAS OF CHILWORTHI will certainly look into the matter, as I am sure will those in charge of the technical side of the Bill. I shall be only too happy to consider with sympathy any Amendment which the noble Earl cares to put down, because I know that the only object of noble Lords opposite is to improve this Bill for the benefit of everyone —there is not the slightest Party aspect about it.
The noble Lord, Lord Polwarth, asked me two questions, and I will deal first with the liability of those who make contributions. They cannot he held under the Statute to he liable for any accident or for the upkeep of the grid. However, the nature of the agreement to subscribe 1000 to the cost which they may enter into with the appropriate authority is something for which they would be liable at law, and they will have to watch carefully that they do not commit themselves to any liability from which they are absolved under this Statute. I am afraid I cannot answer the noble Lord's question in regard to the Hill Farming Act, because I feel it will depend on the policy of my right honourable friend the Minister of Agriculture. I shall become acquainted with his policy between now and the next stage of this Bill, and if the noble Lord will put down an exploratory Amendment on the Committee stage I will undertake to have the answer ready by then. The cyclist was the one and only cyclist, so far as we could trace, who came to grief upon a cattle grid. He was a Scottish cyclist, and I can only think that he had not reached the stage of intelligence of the Scottish animals to which I referred, who learned successfully to negotiate a cattle-grid.
§ LORD POLWARTHA state of proficiency perhaps.
§ LORD LUCAS OF CHILWORTHPerhaps he went about it the wrong way. In reply to the noble Lord, Lord Saltoun, subject to any legal correction I may receive, I would say that the case the noble Lord cited would be covered by this Bill, as it places upon the authority liability to keep a cattle-grid in good repair. I certainly do not intend to rob the legal profession of their source of income by telling the noble Lord how he goes about getting damages if he wrenches his ankle. With those few remarks, I thank your Lordships for your reception of the Bill, and I hope you will give it a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.