HL Deb 05 July 1961 vol 232 cc1422-34

Order of the Day for the Second Reading read.

5.44 p.m.


My Lords, this is a Bill which the County Councils' Association prepared in order to effect certain changes and improvements in the law relating to highways. It was skilfully piloted through the House of Commons by my honourable friend the Member for Bury St. Edmunds, and while it was passing through the other place it had added to it what is in fact now much the most important of its provisions, Clause 1, which in a moment or two I will describe in full to your Lordships.

The law relating to highways was consolidated in the Highways Act of 1959, and I should like to take this opportunity of paying tribute to a distinguished legal adviser to the Ministry of Transport, the late Benjamin Honour, who, after he had retired from his official position as adviser, devoted five years, from 1953 to 1958, to the great, laborious and scholarly task of consolidating the whole law relating to highways, and also to bridges. The previous legislation dealing with the matter, the consolidating legislation, was passed in 1835, and in the course of the time that had passed Parliament had made immense changes in the law in an attempt to bring the highways into a condition suitable for the entirely changed circumstances of modern traffic. Of course, there had been again a very great many decisions of the courts, all of which had to be digested and incorporated in the Act of 1959. I am very glad to think that the late Benjamin Honour lived to see this remarkable work of consolidation on the Statute Book.

Now, as your Lordships are aware, one of the characteristics of consolidation is that it is impossible, while a branch of the law is being consolidated, to make any amendments. Therefore it is no reflection upon the Act of 1959, or upon its drafting, that it should now be necessary for a number of changes to be made, which is the purpose of this Highways (Miscellaneous Provisions) Bill. What is perhaps unusual is that Clause 1, which is now much the most important part of the Bill, was not originally contained in the Bill when introduced.

My Lords, I never thought when, at Oxford many years ago, I first learned about the nonfeasance rule, that it would fall to my lot nearly a generation later to move a Bill which would have the effect of bringing to an end what I think has generally been regarded as an anomaly which has resulted in injustice to a great many people. The rule is this: that if a highway authority repairs a highway badly, they are responsible for misfeasance, and any loss or injury which results from this misfeasance on their part gives rise to an action for damages by the person who is injured. If, however, the highway authority neglects to do anything at all and allows the highway to fall into a dangerous state of repair, anyone who is injured by this nonfeasance on the part of the highway authority has no right of action and has no redress.

This doctrine was originally laid down in a decision of one of the courts in 1446. From that time onwards the courts have tried to narrow it in its application, but it has still continued to be the law. At the time when that decision was given, it was not wholly unreasonable. If the duty of maintaining a highway rested upon the inhabitants at large of a parish, if they neglected to do so they were liable to indictment in a criminal case. At that time there was no need for any civil action and as the inhabitants of the parish are not a body corporate, in point of fact it is impossible for them to be sued. The highway authorities are now standing in the shoes of the inhabitants at large who were free from that liability.

This doctrine has been criticised by many Judges. In 1894, it was severely criticised by Lord Lindley and in 1937 by Mr. Justice Rigby Swift, and recently the General Council of the Bar produced a memorandum upon the subject which called for an amendment of the law to bring to an end something which resulted in injustice to many people. A working party was then set up, which contained representatives of the Ministry of Transport and of the local highway authorities, and what is contained in this Bill is based upon the work that they have done. Shortly afterwards, a Bill was introduced by the honourable Member for Bristol, North West, in the House of Commons, but owing to the lack of Parliamentary time it made no progress.

When this Highways (Miscellaneous Provisions) Bill was introduced in the House of Commons, Mr. McLaren and others, with the support of the Minister of Transport, took advantage of the band wagon passing by to put in Clause 1, the effect of which would be to bring this anomaly to an end. I should like to pay tribute to the broadmindedness of the highway authorities and of the Minister of Transport, who recognise that this will have the effect of adding to their liabilities, but also recognise that it is fair, right and reasonable that this should be done. At the same time, they have asked that reasonable steps should be taken in the drafting of this clause to ensure that an excessively high standard of care should not be required of them.

A highway may be a carriageway, a bridle path or a footpath. It is obvious that the same degree of care in maintaining a footpath in some remote part of the country cannot be reasonably expected as in the case of a carriageway in a more frequented part of the world. Your Lordships will see that paragraphs (a), (b) and (c) of subsection (3) of this clause provide that for the purposes of a defence the court shall have regard to the following matters, that is to say—

  1. "(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
  2. (b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
  3. (c) the state of repair in which a reasonable person would have expected to find the highway;"
Finally, because this imposes considerable additional liabilities upon the highway authorities, it is provided that this shall not come into operation for three years, in order to enable the highway authorities to take the necessary steps. I hope that your Lordships will regard this as being a moderate and reasonably drafted clause, which brings to an end an anomaly but does not do so in a way which will impose excessive or unreasonable liabilities upon the highway authorities.

Clause 2 confers powers on the Minister of Transport to provide, as part of a trunk road, a separate carriageway to relieve the main carriageway. The purpose of a trunk road is to enable through traffic to travel fast and safely without let or hindrance. In many cases where there are houses or other buildings close to trunk roads, it is important that there should be what is generally called a service road, which can be used by vans and other vehicles going to these buildings, and so keep local traffic entirely separate from the trunk road. In the past, it has been doubtful whether the Minister of Transport was entitled to spend money upon the maintenance of a separate carriageway of this kind. In view of the fact that this is important in making the best use of trunk roads, this clause provides that the Minister shall have power to spend money in providing and in maintaining a separate carriageway.

Clause 3 empowers local highway authorities to make schemes for the construction of bridges and tunnels to carry highways over or under navigable waters, and authorises the Minister of Transport to confirm such schemes. These powers already exist in the case of trunk and special roads but not in the case of classified and unclassified roads, and it is to provide for this omission that this clause is contained in the Bill. Clause 4 enables highway authorities to contribute towards expenditure incurred by parish councils in maintaining paths or bridle ways. Obviously this is a desirable power but it does not exist at the present time, or, at any rate, it is doubtful whether it exists.

Clause 5 empowers highway authorities to maintain or protect trees, shrubs or grass verges in the highways which have been provided or planted by persons other than the highway authority itself. There already is power for the highway authorities to provide these but it is doubtful whether they have power to take over what has been done by a developer in the neighbourhood of a road. Clause 6 is an important provision to add to road safety. There are many cases where there are ditches close to roads but which, not being on the road or within the verge of the road, are the property of the riparian owner. A highway authority already has power to fill in roadside ditches of that kind for drainage purposes but not for reasons of road safety, and this clause makes good that omission.

Clause 7 makes it an offence for any person, without lawful authority, to paint or affix marks on the surface of a highway. They are unsightly and in certain circumstances can distract the attention of motorists and therefore be dangerous, and it is clearly wrong that persons should be allowed to do so. Clause 8 enables highway authorities to remove dangerous things from the highway immediately. Section 128 of the Highways Act, 1949, provides machinery by which this can be done, but it takes a considerable amount of time, and in the case where an obstruction is a danger to traffic, it is important that the highway authority should have power to act immediately. The clause gives that power.


My Lords, does that cover the great danger, especially if it has been raining, of wet leaves on the road, which should be swept up?


I have no doubt that if the leaves are there in a sufficient quantity, and are wet in such a way as to constitute a danger by skidding and so on, they would be covered by this clause.

Clause 9 enables highway authorities to light and guard an obstruction in the road until they have time to remove it. Clause 10 deals with a case where there are trees close to a highway which, because they are dead, diseased, or insecurely rooted, are likely to constitute a danger. At present, a highway authority has not the right to deal with this danger before an accident has occurred. That ties up with Section 134 of the principal Act. Clause 11 deals with the question of where, owing to the topography of the land, it is necessary to make a drain some distance away from a highway in order to prevent the highway from being flooded. Under the principal Act it is provided that the highway authority shall have that power up to a distance of 220 yards away.. It has been found that 220 yards is not sufficient and, subject to the necessary safeguards, this clause extends the distance.

Clause 12 enables highway authorities who wish to straighten a road to exchange the land where the road now is for land which is required in order to carry out the work. This seems to be a perfectly simple, straightforward and commonsense measure to take. But under the law as it is at the present time there is the principle, "Once a highway always a highway", and, therefore, it has not been lawful for a highway authority when wishing to straighten a road to give to the adjoining owner the land for which that highway authority no longer has use and to obtain in return the land which it desires to have in order to straighten the road.

Finally, I may say that Clause 14 provides that this Bill shall be construed as one with the Highways Act, 1959; and Clause 15 provides that it shall not apply to Scotland, to Northern Ireland or to London. The reason for that is that the Act of 1959 does not apply to London. This is a modest measure. I do not think it will be found to be unduly controversial. It has been carefully examined in another place and has commended itself to them. I hope that it will commend itself also to your Lordships. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Molson.)

6.4 p.m.


My Lords, I feel that it would be entirely right if I begin by expressing my extreme appreciation to my noble friend Lord Molson, not only for the admirable clarity with which he has introduced this useful if rather complex measure to your Lordships, but also by recognising the great pains he has obviously taken to become master of all the points connected with it. I do not think I should be detracting in any way from his efforts, or indeed from the most constructive efforts of the honourable gentleman the Member for Bury St. Edmunds, who introduced the Bill in another place, or from the initiative of the County Councils Association, who largely inspired the Bill, if I say that I think perhaps none of them would claim that its provisions were dramatic or spectacular, although all of them are, in my opinion, certainly useful.

The Government fully approve and support the Bill. As my noble friend said, probably the most important measure is contained in Clause 1, where it is proposed to abolish the non-feasance rule. I think my noble friend Lord Molson will have clarified the provisions about this to the satisfaction of your Lordships, and it is unnecessary for me to add much to what he has said. It is, as he told your Lordships, well-known that this situation has been criticised for some time. My understanding is that the courts have long disliked it, and the legal profession as a whole consider it unjust. What has been said about it outside and in both Houses of Parliament, and not least by the noble Lord, Lord Russell of Liverpool, in your Lordships' House, has made the Government conscious of the increasing weight of responsible opinion which considers the doctrine of non-feasance to be undesirable. Its abolition is a major change in our law as it applies to the highways. It makes a radical alteration in the position of highway authorities and the rights of the individual, and in three years' time they will enter a new era in their relations with each other.

As I have said, I have no desire to add to what my noble friend has told your Lordships, but in my turn I should not wish to miss this opportunity of paying my tribute to the responsible and statesmanlike attitude which has been adopted by all highway authority associations in making up their minds to accept the change. A great deal of careful thought and considerable discussion have, I understand, gone to the framing of the proposals in the Bill, and I think your Lordships would wish to know that a balance between the highway authorities, on the one side, and the highway users, on the other, has been achieved and agreed only after the most painstaking consideration and negotiation.

I feel that I should mention Clause 2 of the Bill, because it is the clause which is of benefit only to the Minister of Transport as the highway authority for trunk roads. The proposed power for him to provide service roads where appropriate alongside trunk roads is most welcome, and it will prove most valuable from the dual points of view of road safety and creating a smooth-flowing and efficient road system, two things that go hand in hand.

Most of the other provisions of the Bill will help highway authorities generally to deal more efficiently with the heavy responsibilities that they have, and they will be able to take or adopt more quickly measures that will be for the benefit or safety, or both, of all road users. Most of these other provisions are available both to the Minister and to other highway authorities as they apply both to trunk roads and all other roads alike.

As my noble friend recounted to your Lordships, highway law in this country goes back a long way. If one wants to research into it carefully one certainly has to begin by reading Magna Carta, but it has over the years proved to be adaptable. Responsibilities, as he said, have shifted from the lord of the manor and what were known as the inhabitants at large on to the justices of the peace, the turnpike trusts and from them to the local authorities and the Minister of Transport. Over the same period of years the character of the traffic has changed even more widely. We have recently spent a good deal of time in your Lordships' House on the question of road safety, which is equally an age-old problem. I do not know quite how far it goes back, but it at least goes back many years B.C., to the time when cur attention was first drawn to it by Jehu, who was a well-known furious driver. Other aspects of the highway law, possibly more routine or administrative but equally important, have also been with us for a long time. Highway law has been adapted as has proved needful from time to time. It has been adapted by a gradual process of development, sometimes by major acts of Government legislation, and sometimes by more modest but very valuable measures, such as this Bill which is before your Lordships. I hope very much that your Lordships will agree with me as to its merits, and that you will accordingly give it a Second Reading.

6.10 p.m.


My Lords, I should like to join the noble Lord, Lord Chesham, in congratulating the noble Lord, Lord Molson, not only on having had the opportunity of introducing this Bill but on the careful and lucid way in which he has done it. It is not given to everybody to have the chance of realising a dream which he had in his younger days, of introducing a measure in this House to put right that which he regarded as being wrong and unfair.

I myself have lived with this doctrine of non-feasance for nearly half a century. I have frequently had to tell clients who have been injured on the roads as a result of the failure of the local authority to carry out necessary repairs that they had no remedy in law, and that they would have to bear their sufferings as best they could. To me it is a dramatic change in the law that is now, I hope, about to take place in this Bill. Whatever other provisions there may be in the Bill, which the noble Lord described as modest and right, this, at any rate to me, is one of the most dramatic legal events that has taken place over what is now becoming for me a very long legal career. So I do not underestimate the importance of this Bill, which has been regarded in another place as almost entirely non-controversial, and certainly non-Party.

I, too, should like to congratulate local authorities on having had the good sense and the public spirit to accept what I think has become almost inevitable—that is, to accept liability and to end the doctrine of non-feasance. I appreciate why it has been so long in being accepted. Local authorities, naturally, have the fear that, once the defence of non-feasance was abandoned, they would lay themselves open to a large number of actions—and it would not surprise me if they did. There is still the danger that it will attract unscrupulous and impecunious persons to bring actions against local authorities in the hope that they will be induced to settle rather than fight expensive actions. Time will show whether that will in fact be the case, but I think the clause contains sufficient safeguards to local authorities to ensure that persons bringing unreasonable actions will not be successful, and in time they may be discouraged from commencing actions, realising that it is not going to be plain sailing for them.

I believe that all the other clauses are perfectly reasonable and unobjectionable, but I should like to mention Clause 9, and ask the noble Lord, Lord Molson, if he will give consideration to the point that I want to make on it. It deals with the removal of an obstruction by the local authority, and it provides for the right of the local authority to recover the cost of removal of the obstruction from the person who is regarded as responsible for the obstruction.


It is Clause 8.


Yes, that is right. There are cases where the owner of the obstruction is in no sense responsible, morally or otherwise, for it. For instance, a gale blows down a tree on to a road, which happens fairly frequently. The local authority is not responsible. If the branches were liable to cause danger, then I think the local authority is protected under another clause. But in a case where nobody could have foreseen that the gale would force the tree, or part of it, on to the road, I wonder whether it is really quite fair that the owner of the tree should be held liable for what is really an act of God, and whether it is not a proper liability for the local authority and the public at large. I do not want to be dogmatic about it. One will have an opportunity of saying a word about it on Committee, but I thought I would mention it at this stage so that the noble Lord, Lord Molson, may have an opportunity of considering the point.

I think that is all I need say in comment on this Bill. It is a good Bill, and I hope that it will not fall by the wayside in the same way as the other Bill to which the noble Lord referred in his speech, the Road Traffic Bill. I hope that it will have the opportunity of going through and becoming law in this Session. Certainly it will be of considerable advantage in the interests of public safety if it does.

6.18 p.m.


My Lords, I, too, should like to congratulate my noble friend Lord Molson on the very lucid way in which he explained the doctrine which all lawyers have known for centuries, that a highway authority is not liable for mere non-feasance. It is a very primitive notion to distinguish between misfeasance, doing something wrong, and non-feasance, omitting to do what you ought to do. If you dig a hole in the road, that is misfeasance. If you fail to light it with a lamp, that is non-feasance. Any clever lawyer ought to be able to combine the two, and say, "You dug a hole in the road without lighting it". It is a completely unscientific distinction between misfeasance and non-feasance which goes back to very primitive days in the law, and the sooner it is abolished in a modern society the better.

But in truth it arose, and is now part of our law, because 500 years ago and less the people responsible for repair of a road were the inhabitants of a village, or of a bridge the men of the county, and you could not put your finger on any particular one of them to sue in a civil action. They were not liable. So when Mr. Russell sued the men of Devon in 1886—that is the leading case —Mr. Russell lost his action because the men of Devon were not a corporation. But last century we formed corporations to take over the highways.

With the local authorities, the surveyors of highways, tile urban district councils, the county councils, and so on, taking over highways, there was an opportunity for the courts to say, "These bodies are corporate bodies under a statutory duty to repair. Why should they not be liable when they do not repair when they ought?" Unfortunately, the courts did not take the opportunity; they stated that these new bodies were the successors to the men of Devon or the old inhabitants of the parish, and were not liable for nonfeasance. So for another 100 years we have suffered under the rule that a highway authority is not liable for nonfeasance. But what ridiculous cases we get! I remember one a few years ago where a bicyclist was riding over a bridge in Somerset, up the approach road, down the other side, and he fell into a pothole—or his bicycle did—and suffered severe damage. The whole question was: was the road part of the highway or part of the railway bridge? Unfortunately I appeared for the railway company and we lost. The point is that should this part of the road belong to the railway company they would be liable for damages; but should it belong to the highway authority, they would not be. There are other cases, of forecourts maintained by a county council next to a highway. No one can tell the difference between the forecourt and the pavement, and the general question is: did the accident happen on the forecourt or the highway? It is a completely artificial line. The courts have done what they can.

Or again the case of a traffic stud in the highway; is it part of the highway or is it not? Courts as far as they can, by various devices, have tried to make a person responsible, but they have never succeeded in eliminating the difficulty because of this old rule. What a great thing it is that this change in the law should now be made, a dramatic change whereby the doctrine we have learned for years, that a highway authority is not liable in non-feasance, is about to be abolished!

I would make one suggestion, which perhaps I ought not to make because it is all agreed, but I wonder whether it is necessary to wait for three years before this new law comes into operation. After all, the duty to repair is there; it is under Statute. The only thing not law is that the person injured can recover damages. There is no difficulty in the extent of liability: it is just the same. So why wait? If anybody is injured within the next three years because the highway authority has not kept up its duty why should he not recover; why wait three years? That is my one point on the first clause.

As to the other point about leaves on the road, I cannot say for sure that it is covered. Clause 8 refers to things "unlawfully deposited" on the road and I am not sure that leaves when they fall down are "unlawfully deposited" by anybody. I may say it is a point of view in which I am interested. I am glad now that county councils or some other body are going to be responsible for footpaths. This Bill is wholly to be welcomed—a great change in the law, but a very welcome one.


My Lords, I should like to express my gratitude to all your Lordships who have spoken and for the welcome reception that has been given to this Bill. Naturally I will look into the points raised by the noble and learned Lord, Lord Denning, and all my noble friends.

On Question, Bill read 2a, and committed to a Committee of the Whole House.