CAP. 25

HL Deb 26 July 1967 vol 285 cc908-36

[1424, cap. 24]

Of hostilaris in burowis townis and thruchfaris

Item It is ordanyt that in all burowis townyss of the realme and thruchtfaris quhar common passagis ar that thar be ordanyt hostilaris and resetteris haifande stabillis and chawmeris to ridaris and gangaris And at men fynde with thame brede and aile and all vthir fuyde alsueill to horse as men for resonable price eftir as the chapis of the cuntre standis.

[THE INNKEEPERS ACT 1424]

I am informed that the last words might reasonably be interpreted in these modern times as according to the prices and incomes policy of the day"!

THE DUKE OF ATHOLL

I thank the noble Lord for saying that he will consider this point. All I wanted to do was to draw the attention of the Government to the desirability of having self-shutting gates. Possibly it would be inappropriate to write it in here, but perhaps the noble Lord will be prepared at the next stage to give an assurance that in nearly all cases self-shutting gates will be used on these long-distance routes, because I think it is a point of some importance.

I fully realise that a hundred years ago, when providing refreshments one provided them for horses as well as for humans, but I think this practice has rather dropped out in modern times. I just wanted to draw attention to the fact that it will be necessary to have refreshment for the horses as well as for the humans, in addition to accommodation for the horses. One of the difficulties of pony trekking at the moment is that unless you trek from one centre and go out in a different direction each day you can never find places to stable your ponies overnight. When these long-distance routes were set up I was hopeful that this difficulty would be overcome and that people would be able to go for genuine pony treks over, perhaps, 50 or 100 miles without staying two nights at the same place. However, with the noble Lord's assurance I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

BARONESS ELLIOT OF HARWOOD

A discussion took place in another place on this Amendment, and I believe the Minister undertook to look further into the question of prior consultation with owners and occupiers. This Amendment is the same as that moved in the Standing Committee of the House of Commons. It would seem desirable in the exercise of their general functions under this part of the Bill that there should be express provision for consultation between the Commission and the owners and occupiers of the land through which the routes are passing, particularly as, if the various types of accommodation for the benefit of long-distance travellers were to come into effect, it would be necessary to have the permission of the owners and occupiers for any additional stabling that might be needed on the route. I beg to move.

Amendment moved— Page 34, line 5, after ("with") insert—("the owners and occupiers of the land through which the route passes and with ").—(Baroness Elliot of Harwood.)

LORD DRUMALBYN

I should like to support my noble friend, and simply observe that I think her Amendment would require a consequential Amendment in line 22, so that representations would also be capable of being made by the owners and occupiers, and included in the report. I am sure this would be a wise thing to do. What I understand my noble friend is asking for is consultation before the order is made. Under the Schedule it would be possible after the order is made, but consultations beforehand might be a good deal better.

LORD HUGHES

As the noble Baroness has stated, this Amendment was considered in another place, and I should like to draw the attention of the Committee to what my honourable friend the Minister of State said in the Scottish Standing Committee: I accept that consultation with landowners at this stage should take place if particular difficulties appear to exist. Under Clauses 30 and 31, when the time comes to put the pro- posals into practice, the owners and occupiers will be consulted. That is right and proper. All that we are arguing about now is a functional power and whether in all the circumstances, even though there are no difficulties or there appear to be no difficulties, we should have to do this. It is simply on the ground of doing unnecessary work and having to carry out unnecessary consultations that we object to these two Amendments. That was what was then said: that we must hold the balance between getting on with the job and consulting many people who might in the event not be concerned.

We consider that the right stage for consultation with individual owners and occupiers is at the implementation stage. Consultation is implicit in the making of a public path agreement, and the Secretary of State would want to be satisfied that a serious attempt had been made to make an agreement before he would approve an order. Therefore I regret that I do not feel able to accept the Amendment. But I repeat the Government's hope that there will be the fullest practicable consultation with owners and occupiers at every stage where this would be helpful, and the confidence of the Government that the Commission and local planning authorities will be fully alive to the sensibility of proceeding in this way without the necessity for too onerous statutory obligations.

BARONESS ELLIOT OF HARWOOD

I was interested in what the noble Lord said and I will not press the Amendment. But we are in danger of shutting the stable door after the horse has escaped. The point made by my noble friend Lord Drumalbyn, and which I want to stress, is that it is before these things are actually coming into effect that we want to get people's good will. If you do not have their good will and you start off by putting the scheme almost into effect, then you get the difficulties that arise because people are angry as they have not had an opportunity to go along with the plan. If the noble Lord feels that this point is already covered, I am quite happy. But I am anxious for the Bill to be a success and keen about its provisions with regard to long distance trekking and so on, and it will be a great pity if it does not succeed simply because the consultations come after, rather than before the order.

LORD HUGHES

I do not think there is any likelihood of our locking the stable door only after the horse has escaped. I think we have doors which can be kept reasonably shut and which the horse will not be able to open of its own accord.

THE DUKE OF ATHOLL

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clause 40 [Approval of proposals relating to a long-distance route]:

THE DUKE OF ATHOLL

had given Notice of his intention to move, in subsection (2), after "authority", to insert "owner and occupier". The noble Duke said: The point of this Amendment is so closely connected with the point discussed under the last Amendment that it is hardly worth moving at the moment.

Clause 40 agreed to.

Clauses 41 and 42 agreed to.

Clause 43 [Ploughing of public paths]:

12.42 p.m.

THE DUKE OF ATHOLL

This Amendment is designed to save a person who ploughs up a public right of way which is in the middle of his field from having to notify the fact to the authority responsible if the right of way is not used frequently. For this purpose, I have said that if the right of way has not been used during the course of the previous year the occupier need not notify the fact that he has ploughed it up. I think this is a reasonable proposition. It seems to me that it would just create a lot of unnecessary paper work and annoyance for both the occupier and the local planning authority if the occupier had to notify the local planning authority in those cases where the right of way is hardly ever used. I beg to move.

Amendment moved— Page 36, line 37, after ("way") insert ("which has been used during the course of the previous year").—(The Duke of Atholl.)

LORD HUGHES

The effect of the Amendment which the noble Duke has proposed is that if a right of way has not been used in the previous year it shall in fact be treated as if it were not a right of way. The current period over which a right of way must be disused before it ceases to be a right of way is 40 years. It is an exceedingly radical Amendment to reduce 40 years to one year, and I am quite certain that many people much less reasonable than the noble Duke could not expect me to accept an Amendment of this kind. I am quite certain he will not press it.

BARONESS ELLIOT OF HARWOOD

If it is not acceptable—and I agree that one year is a very short time—is there any point at which somebody who wishes to cultivate land on a rotational basis will ever be able to do so if a right of way passes through the field or in some way over his land? Is this land going to be sterilised for ever and never cultivated for 40 years?

LORD HUGHES

The Bill as it stands does nothing to alter the existing law in relation to rights of way, and something with which people have had to live over all this time will continue to be in that fashion. I mentioned when we were talking about rights of way previously that it is perhaps possible, with this new procedure of having access agreements, that a right of way, on consultation with those concerned, may be changed through an access agreement, which would in fact serve the same purpose. As the noble Duke indicated, this would probably require consultation with, among others, the Rights of Way Society. I am quite certain that it would be improper to attempt anything of this kind without consulting them. I have no doubt that if they could be satisfied that through an access agreement they could achieve exactly the same purpose as they previously had with the right of way, agreement might be possible. If they could not be satisfied, then I should think it would be impossible to move on this matter unless Parliament deliberately decided to alter the law in relation to rights of way, and we could not do this as a side issue in a Bill of this kind.

THE DUKE OF ATHOLL

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF DUNDONALD moved, in subsection (3) to leave out "as soon as may be after the ploughing is completed" and insert "after final cropping". The noble Earl said: I raised this matter at some length on Second Reading. What do the words "as soon as may be" mean? The Minister in his reply was good enough to agree that they mean very little. Perhaps I may read what he said, referring to my remarks: I cannot disagree with him when he implies that this phrase has no precise legal meaning in terms of time."—[OFFICIAL REPORT, col. 1202, 12/7/67.]

The noble Lord went on to say that the courts would take certain views about the matter. But I feel we do not want to think in terms of court cases. What we want to do is to make the position quite clear to the owner or occupier. I have tried various forms of words, and the wording I have set down is the best I can put forward which would allow the rotation of the field concerned. In fact the right of way or path could be put back after normal rotation. I hope the Minister will be able to agree to this Amendment, or at least to look at the matter further. I beg to move.

Amendment moved— Page 36, line 43, leave out ("as soon as may be after the ploughing is completed") and insert ("after final cropping").—(The Earl of Dundonald.)

VISCOUNT MASSEREENE AND FERRARD

I should like to support my noble friend. Personally I should prefer, instead of the words, "after final cropping", to see the words, "when the land returns to permanent grass". I was wondering whether, to get over this difficulty while the land is under crop, the right of way could perhaps go round the headlands of the field. That seems quite feasible. I hope that the Minister can give some satisfaction on this point, because obviously it is quite impracticable, when you plough a field and sow a crop, to have people walking across it.

LORD HUGHES

I have no desire to get away from what I said on Second Reading, because it is clear that we cannot attach a precise legal meaning to the words "as soon as may be". I certainly did not wish to create the impression that we expected that there would be a multiplicity of court actions over this sort of thing. We believe that court action would be an exceedingly rare proceeding, as it has been on this side of the Border. I gave an example of how wide an interpretation the court placed on a similarly vague phrase in other legislation.

One of the purposes of the clause as drafted is to save the farmer what might, in certain circumstances, be a considerable amount of inconvenience. I think that to use wording which has been chosen after a great deal of thought is as far as we can go, and the Amendment which the noble Earl has proposed, although at first glance it appears to be more precise in terms of time, would mean that in certain circumstances the path could not be available for a very considerable time.

The noble Viscount, Lord Massereene and Ferrard, pointed out one possibility in that connection. I do not know in how many ways this could be extended. For instance, it is not inconceivable that a man might say, "My plans for cropping extend over the next ten years and my final cropping is not until the tenth year. I am going to keep the land closed, and I shall have the right, because of this, to keep it closed all that time." Obviously, this would defeat the whole purpose of the clause, which is to permit the land to be ploughed up for the shortest reasonable possible time. There have been many close consultations with both the Scottish National Farmers' Union and the Scottish Landowners' Federation, and I can say that there has not at any time been any suggestion by either of these organisations that the wording as drafted would impose an undue burden on anybody. In fact, we think that the loose nature of the wording is much more likely to apply in favour of the farmer or landowner rather than against him. I hope, therefore, that the noble Earl will feel it possible to withdraw his Amendment.

THE EARL OF DUNDONALD

I am most grateful to the Minister for his full reply, and in the light of what he has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 43 shall stand part of the Bill?

THE DUKE OF ATHOLL

May I ask the noble Lord one question on Clause 43? There seems to be no provision made for an alternative path while the footpath is ploughed up. I feel that it ought to be written into the Bill somewhere that when a footpath is ploughed up the farmer must leave a headland round that particular field in such a way that members of the public who wish to use the path will be able to get round the field without either going across the ploughing or having to go along what might well be a barbed wire fence or thorny hedge. I think it should be written into this clause that where a farmer takes advantage of the clause, and in the interests of good husbandry ploughs up a footpath going across the field, he should leave a sufficient headland on one side or the other to enable people to get round to the point where the particular path normally begins and ends.

VISCOUNT MASSEREENE AND FERRARD

To help the Minister may I say that I have done this in England in consultation with the local authority? Where the public right of way has been ploughed up, I have left a path round the headland.

LORD HUGHES

I am not certain whether there are difficulties in the way of doing this. I should certainly like to see something of this kind in the Bill, and I will undertake to look at this point before the next stage.

Clause 43 agreed to.

Clause 44 [Pasturing of bulls]:

12.55 p.m.

THE DUKE OF ATHOLL moved, in subsection (1)(b), to leave out "cows or heifers "and insert" other cattle". The noble Duke said: I should like to congratulate the noble Lord on the revised version of Clause 44. It is a big improvement on the original version. But it seems to me that there is one small snag with subsection (1)(b), in that sometimes, because a farmer does not want his cows to calve too late in the following year, he does not wish to run the bull with the cows and heifers after, say, April or May of a particular year, and it may be more convenient to him to run his bull with the bullocks. I should have thought, therefore, that we might use the words "other cattle" rather than "cows or heifers" in Clause 44. I think I can assure the noble Lord that normally beef bulls are extremely docile—much more docile than the cows concerned. So long as they have some sort of company, I think they will be perfectly happy. I beg to move.

Amendment moved— Page 37, line 32, leave out ("cows or heifers") and insert other cattle").—(The Duke of Atholl.)

LORD HUGHES

As the noble Duke is well aware, the clause is in this form after considerable discussion with all the interests concerned, and I am informed that there is no strong agricultural interest that requires an Amendment along the lines which he suggests. I do not pretend that the clause has in it everything which the Scottish N.F.U. would like; in fact, they might have been happier without any clause at all. But they are reasonably content, having regard to the purpose of the clause—which is to protect the public without imposing undue burdens upon the farmer—that this is as far as they can reasonably expect the clause to go. In these circumstances, I hope that the noble Duke will accept that it would be unreasonable for us to go beyond the terms of this clause. I would remind him also, since it may not have been in his mind, that the Sexual Offences Bill was passed last week, but I do not see that we should extend this sort of activity, under the Countryside Bill, to bulls.

THE DUKE OF ATHOLL

Having heard what the noble Lord has said I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

THE DUKE OF ATHOLL moved, in subsection (2), after "who" to insert "deliberately". The noble Duke said: This is a probing Amendment to find out exactly where the line will be drawn, in regard to negligence, between people who are simply negligent and the bull gets into a field through which a public right of way passes, and people who are sufficiently unlucky that, through no fault of their own, a bull gets into such a field. I can visualise a case where someone leaves open a gate, or possibly where a tree blows down and falls over a fence, thereby enabling the bull to walk through into the next field. I should be happier if the word "deliberately" were inserted in subsection (2) of this clause, but I suspect that in legal terms it may be automatically accepted and that the noble Lord may tell me that it is unnecessary. I beg to move.

Amendment moved— Page 37, line 34, after ("who") insert ("deliberately").—(The Duke of Atholl.)

BARONESS ELLIOT OF HARWOOD

May I say a word in support of this Amendment? One often finds that one's neighbour's bull gets through on to one's land, which one does not want in the least, because of all the nuisance of getting it out again. It is possible that a fence is not quite strong enough, or that some condition prevails of which one is not aware; and it is most inconvenient and it would be unfortunate if one were suddenly fined £50, not because one had been negligent but because of a series of accidents or because of the negligence of one's neighbour.

LORD HUGHES

I think I can satisfy both the noble Duke and the noble Baroness that what they are worried about is adequately covered by the Bill as it stands. The fact is that there are two aspects of a penal offence. First, it is necessary to catch the person who deliberately sets out to ignore the statutory requirement. Secondly, the question arises whether the person who has offended, not by intent but by gross negligence, should also be liable. In some cases it is true that he should not, and the usual formula is that a person is liable if he has for example, knowingly misrepresented certain facts. Here, however, I am sure that the public interest requires that little extra care to ensure that the bull is not negligently left in a field through which mother and children may have to walk in order to follow the right of way. If, however, the farmer has taken all reasonable precautions to prevent the bull from entering on the right of way, I think there is no doubt that he would not be held to be liable if, by mischance, it broke loose.

The Scottish N.F.U. are, I understand, satisfied on this point, and accordingly it would be wrong, I think, to accede to this Amendment, which would let out not the person to whom the noble Duke and the noble Baroness have referred, but the person who had no interest in seeing that the clause was implemented in order to protect the public.

LORD DRUMALBYN

Could not this Amendment be made completely in keeping with what, I think, are the wishes of the Committee, if the words "deliberately or negligently" were inserted?

LORD HUGHES

As the noble Lord, Lord Drumalbyn, is aware, in drafting terms sometimes words which have one meaning to the layman have another meaning altogether to the lawyer simply by reason of the usage which the courts have applied. While I must admit that the addition of these words seems, at first glance, to be quite reasonable, the noble Lord will appreciate that I must consider their legal meaning. But I will certainly undertake to look at this for the next stage, and in the interval to write both to the noble Duke and to the noble Lord to let them know whether or not this can be accepted, and if it cannot be accepted to explain the professionals' reasons for not wishing to accept it.

THE DUKE OF ATHOLL

Would the noble Lord also consider the point that where a tree falls across a fence the owner of the tree and of the fence could have been negligent in that he did not know that the tree had disease or something of the kind? It is not practicable to look at all the trees which are near fences to see whether they are liable to fall down. One knows that elms are always a great risk since they seem to shed limbs in no uncertain way. I should have thought that if such a thing did happen, if a bull got out of one field into another through which a path passed, the owner or occupier ought not to be liable for all this. I should be grateful if the noble Lord would look at the point. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 agreed to.

Clause 46 [Protection of rights of way]:

THE DUKE OF ATHOLL

This Amendment, No. 50, is on much the same lines as a previous Amendment which I moved a little earlier. It seemed to me to be unnecessary for a local planning authority to protect and keep open and free from obstruction a right of way if the right of way was not normally used. Local planning authorities should have much better things to do with their time and money, and if we can find some method which is agreeable to all concerned, including the Rights of Way Society, the owners and the local planning authorities, for doing away with such rights of way, it would be a good thing, and the money thus saved could be spent far more profitably on improving rights of way which are used. I beg to move.

Amendment moved— Page 38, line 38, after ("way") insert ("for which there is need, and")—(The Duke of Atholl.)

LORD HUGHES

In view of what I have said earlier about the right of way existing for 40 years, the noble Duke will not be very hopeful of my accepting this Amendment; and, if I am right in reading his thoughts, he will not be surprised at what I am now going to say. I should like to say, however, that we shall be watching to see how the new provisions of the Bill work, and so will the Countryside Commission. In the light of the experience we gain and the advice we receive from the Commission and other bodies, including bodies representing owners and occupiers of land, bodies representing users of rights of way and, not least, the local authorities who have the duty of maintaining them, we shall naturally keep the matter under review. But that is as far as I can possibly go. We are creating an entirely new concept, and it may be that in the light of experience the users of land will accept that the right of way, which was the only thing which they had in the past, does not now have the complete importance that it formerly had. As it would be wrong for me to accept at this stage any alteration of existing rights of way, it would be equally wrong to argue that we should ignore the experience which we are going to gain over the next few years in considering future policy in relation to them. In the circumstances, I hope the noble Duke will withdraw the Amendment, and perhaps come back to this matter in a debate in two or three years' time.

THE DUKE OF ATHOLL

The difficulty is that at the moment it is almost impossible ever to close a right of way, because to prove that it has not been used for 40 years is something that few people would be prepared to undertake. I fully understand why the noble Lord cannot accept my Amendment; I must admit that I never thought he would be able to. Therefore I beg leave to withdraw the Amendment, hoping that some form of legislation will be brought in in the future whereby rights of way which patently have little or no use can be closed.

Amendment, by leave, withdrawn.

LORD HUGHES

When subsection (2) of this clause was added to the Bill in another place my honourable friend the Minister of State undertook that the Government would look into the effect of its last four lines. The result of our consideration is the present Amendment. The words which we now propose to delete were taken from the similar provision relating to district councils in Section 29 of the Local Government (Scotland) Act 1894. We are inclined to agree that the clause as it stands goes too far in relieving the local authority of responsibility for the consequence of its acts—even if these are done in the exercise of a permissive power and not of a duty. They may have been all right in 1894, but if, in 1967, a local authority exercises the permissive power which the clause gives to maintain a public right of way, it is only fair that it should be possible for it to be held responsible for damages arising from the way in which it has done the maintenance. I beg to move.

Amendment moved— Page 39, line I, leave out from ("maintenance") to end of line 5.—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 46, as amended, agreed to.

Clause 47 agreed to.

Clause 48 [Country Parks]:

1.7 p.m.

THE DUKE OF ATHOLL moved, in subsection (1), to leave out "position in relation" and insert "proximity". The noble Duke said: This is an Amendment which I very much hope the noble Lord will be able to accept. Not only does it replace three words with one word, which is always a good thing, but it also makes it much clearer that local authorities will not be able to set up countryside parks miles away from their own particular town. It is an advantage to make this clear. From all that has been said in another place and on the Second Reading in this House, I am sure the intention is that local authorities should set up these parks in places where people in the area will be able to go in a reasonably short space of time; therefore, they will have to be fairly close to the town or city concerned. It would be better to include the word "proximity" rather than "position in relation", as it seems to me to be more precise and is certainly shorter. I beg to move.

Amendment moved— Page 39, line 29, leave out ("position in relation") and insert ("proximity").—(The Duke of Atholl.)

LORD BURTON

I should like to support my noble friend on this matter. This is a point which has considerably worried the Inverness County Council, and I think this Amendment would solve their worries.

LORD HUGHES

I am interested that the noble Duke should have brought forward his Amendment involving the use of this word, for when the Bill was being drafted this was a possibility which was considered. It was in fact discarded, and it was because I knew it was discarded that I became wary of accepting the wording which the noble Lord, Lord Drumalbyn, accepted previously. The word "proximity" has been legally interpreted to mean very near—indeed it is hardly wider than "contiguous or adjacent to". It is because of the very restrictive legal effect of the use of the word "proximity" that we abandoned it and sought instead the words "position in relation". We use this word in Clause 59 because there we were looking for a relatively restrictive word.

The noble Duke said—and it shows the difficulty of explaining what is meant—that a local authority should not be able to have a country park miles away from its own city or town. Of course, it depends what he means by "miles away". If he is thinking in terms of hundreds of miles, I agree with him. If, on the other hand, he is thinking of "miles away" meaning twenty or thirty miles I must disagree with him, because that possibility is contemplated. What we have in mind is that country parks should be convenient for the town dwellers, and within easy reach for the average family motorist to visit in an afternoon. These parks could not possibly be included if we used the word "proximity", but it would certainly rule out the possibility of country parks being so remote from the town that you had to spend a day getting there and another day getting home. The words in the Bill are therefore reasonably restrictive, but not so restrictive as "proximity" would impose upon us.

THE DUKE OF ATHOLL

I know that the noble Lord and I are trying to achieve exactly the same object. If he does not like the word "proximity"—I did not know that it had this very narrow legal meaning—I should like to suggest the word "propinquity", which was my first choice, but I was told that "proximity" was a more legal term. I feel that "position in relation" is very imprecise, and it depends on your form of travel. If you had an aeroplane you could easily reach a country park somewhere near Nairn, which could be provided by Glasgow. You could travel in half-an-hour in your aeroplane from Abbotsinch to Dalcross, and there you would be. I suppose you could say that it was a "position in relation to", due to the fact that a country park near Nairn was very near Dalcross, and therefore people could get there very quickly. But it seems to me that this argument is entirely fallacious, and I should have thought that some word such as "propinquity" would be infinitely better than this vague phrase of "position in relation". Do I gather that the noble Lord wishes to say something more before I withdraw the Amendment?

LORD HUGHES

Yes. I just wanted to make it quite clear that we had not visualised the possibility that local authorities would be providing many country parks for the particular convenience of those who could afford to buy an aeroplane.

THE DUKE OF ATHOLL

Yes, but I am not sure that the phrase "position in relation" excludes this. This is what worries me. I did not visualise that the Government intended this. I should like the noble Lord to look at this point again, and in the meantime I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

This is a purely drafting Amendment dealing with the joint advisory committees, and the question is whether, as the words stand, they will have to consult with some local planning authorities. If the noble Lord will simply say that these two words are not necessary, then I shall not press the Amendment. I beg to move.

Amendment moved— Page 39, line 40, after ("authorities") insert ("if any").—(Lord Drumalbyn.)

LORD HUGHES

The advice I am given is that they are quite unnecessary.

LORD DRUMALBYN

In that case, I should like to withdraw the Amendment.

Amendment, by leave, withdrawn.

1.14 p.m.

LORD DRUMALBYN

Again, I am not certain whether these words are necessary. The point is simply that in this case a sort of marriage, possibly a plural one, is being contemplated between various local authorities for the purpose of providing country parks. As the words stand, they seem to mean that you reach an agreement, with a kind of marriage contract at the start, which cannot subsequently be altered. This seems to be wrong in terms of the words that are used, "having regard to the prospective use". That prospective use must change from time to time, and I should have thought that "from time to time" were the appropriate words to put in. I beg to move.

Amendment moved— Page 40, line 17, after ("agreed") insert ("from time to time").—(Lord Drumalbyn.)

LORD HUGHES

The noble Lord is quite correct in stating that there obviously must be a need for reviewing this from time to time, because of a possible change of circumstances. The advice which I am given, however, is that this was very much in the mind of the draftsman when the clause was drawn, and that there is no doubt at all that the clause as drafted permits such a review to take place from time to time. I hope that, with this very firm assurance, the noble Lord will not require me to insert words which the draftsman assures me would be redundant.

LORD DRUMALBYN

The noble Lord has said that there is no legal doubt at all, but I felt some doubt about this myself. But in view of the very firm assurance which he has given me, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Clause 49:

Camping and caravan sites

49.—(1) A local authority shall have power to provide camping sites for holiday or recreational purposes whether for the benefit of the inhabitants of their own area or otherwise, and to manage the sites or lease them to some other person.

(4) A local authority shall, in the performance of their functions under this section, have power to acquire land compulsorily where it appears to them that a camping site or an additional camping site is needed in their area, or that land which is in use as a camping site should in the interests of the general public be taken over by the local authority.

LORD BURTON moved, in subsection (1), after "power" to insert "within their area". The noble Lord said: As on the Second Reading, I must declare an interest, being the owner of two caravan sites. One of these sites was started because on one night there were no less than five different parties camping on the verges of my private drive, and I felt it necessary to have somewhere to offer such people as an alternative camping site. At the same time, a site was set up by Inverness Burgh about five miles away. With the competition from a municipal site, my site ran at a loss for the first three years. However, as a number of our visitors have continued to return, and have also recommended our site to their friends, we have now established a large concern.

I hope it will be seen from this that there is no initial financial incentive for anyone to start a camping site; indeed, it is a considerable gamble. There is a substantial capital outlay; it is frequently difficult to secure planning permission; the season is very short (about four weeks at the peak) with consequent employment difficulties and, as the law stands at the present time, there is little to prevent anyone from parking their caravan or setting up their tent anywhere they like.

If this Bill passes in its present form, it would appear that any local authority can step in and take over a camping concern which has been worked up at considerable risk and is now flourishing. They will, of course, be able to set up sites in opposition at public expense. Rather than jeopardise the establishment of sites by private individuals and risk public money it is surely better to give every possible encouragement to the establishment of privately run sites. It is possible that grants or loans could be given by the Countryside Commission to help establish such sites. It is also possible that the Commission may be able to help with planning permission, in which case, of course, it will be welcomed.

There is a need to curb indiscriminate camping, and the noble Lord, Lord Hughes, has drawn my attention to the 1865 Trespass Act which has fallen into disuse as the penalties are quite out of date. It is hoped, however, that when these penalties are amended the Government will ensure that the public know that they are breaking the law if they camp without permission; and perhaps we could have an undertaking that the police will be asked to enforce this law. Furthermore, there is a need to bring tents within the same jurisdiction as caravans; and, indeed, from the point of view of sanitary arrangements there is a very much greater need for this adjustment.

I appreciate that there are difficulties in accepting this Amendment, not least of which are the representations made by the Association of District Councils. In the North, however, there seems to be no desire that an outside authority should be allowed to come and set up establishments within our authority areas. I raised this matter at the last full meeting of the Inverness County Council, and my remarks seemed to receive a favour able reception. So even if the noble Lord cannot accept this Amendment. I think he will appreciate the need for urgent action; and I hope that he will give an undertaking that steps will be taken—if not now, at least in the near future—to deal with indiscriminate camping and camping in tents, and that there should be some limitation on local authorities setting up establishments in other local authority areas. I beg to move.

Amendment moved— Page 41, line 11, after ("power") insert ("within their area").—(Lord Burton.)

LORD FERRIER

I should like to support what the noble Lord, Lord Burton, has said in regard to this Amendment.

THE EARL OF DUNDONALD

I, too, should like to support what the noble Lord, Lord Burton, has said, particularly his remarks in relation to indiscriminate camping. As I understand the position at the moment, caravanning is completely under control. Caravans are in caravan camps, and if crofts are allowed to have two caravans they are under proper control, particularly in regard to sanitary conditions. In Argyll we have a great deal of experience of organised caravan camps, but there is nothing to prevent a whole lot of indiscriminate camping going on next door, without any sanitary facilities at all. I should very much like to support what the noble Lord said in that connection.

VISCOUNT MASSEREENE AND FERRARD

I should also like to support my noble friends in this matter. This is becoming a very serious problem.

LORD HUGHES

I must thank the noble Lord, Lord Burton, for the very fair way in which he spoke to this Amendment, and for the way in which he drew attention to the interests of the District Councils' Association. All noble Lords may not be aware that the Bill as originally presented had these words in it, and that it was because of the representations of the District Councils' Association that they were deleted. The district councils argued that the words were unduly restrictive and that they were by a deliberate decision left out of the corresponding clause in the Caravan Sites and Control of Development Act 1960 in so far as it applied to Scotland. There are Scottish local authorities which do operate caravan sites outside their areas; some indeed did so before the 1960 Act. Some of them may well want to operate camping sites, possibly in association with their caravan sites, and we do not see why they should not be allowed to do so. If a local authority decides to exercise these powers outside its area, it will of course have to get planning permission in the same way as any ordinary person would. So there is no question of a local authority having another authority opening a camping site inside its area without its concurrence.

I think I might go on to say something about the camping position. I think it would be improper for me to suggest that the Government should invite the police to enforce the law. We work on the basis that the police in fact enforce the law, and I have had definite evidence of the fact that they do. I may get myself into trouble by revealing this, but one of the reasons why my advisers are so confident that the present law is enforced is because one of them, when a very much younger man than he is now, was in fact fined for infringing the 1865 Act. However, I should like to say that we have discussed the system of licensing of camping sites with the Ministry of Housing and Local Government, who have had preliminary discussions with their local authority associations about it, and we in the Scottish Office are agreed with them that this is a problem which should be tackled in due course by legislation for Great Britain as a whole. The Caravan Act licensing system itself is in fact just emerging from its initial settling down period, and there has been no demand—no strong demand, at any rate—from Scottish local authorities for camping site licensing powers. The evidence we have suggests that they are able to keep sites under reasonable control by using their Public Health Act powers.

However, as I have said, the matter is under consideration, and if it should be felt that it is desirable to extend to camping sites the sort of licensing system as exists for caravan sites, then in due course this will come forward as legislation which will apply in Scotland as well as in England and Wales. I have no doubt that the noble Lord, Lord Burton, will find some way in which, at some meeting of the Inverness County Council, he can give publicity to the way in which the Trespass Act should be enforced; and publicity up there, where it is a matter of strong local interest, may be very much more useful publicity than anything we say in this Committee. Here, perhaps large sections of the Press do not consider that it is worthy of the headlines, whereas up there it might get a headline in a local newspaper.

LORD BURTON

Perhaps this is not within the Bill, but I am afraid that the police are not enforcing the law. Only last night I went to a tent and asked the people to move, and I was told that the police had already been there in regard to a road traffic accident and had told them that it was perfectly all right for them to stay there. It was in one of my woods near a road, and I strongly objected to this. Can the noble Lord tell me whether the Commission will be able to help in the establishment of caravan parks? Because the necessary capital required to start a caravan site is too much for a good many small people, particularly now, if there is a risk of their being taken over by the local authority. I am quite sure that many people will not like risking their money.

LORD HUGHES

The noble Lord will remember that there is provision for the Commission to help private individuals to do certain things, but under fairly tight control.

LORD BURTON

I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

1.25 p.m.

THE DUKE OF ATHOLL moved, in subsection (4), to leave out all words from "area" to the end of the subsection. The noble Duke said: This is an Amendment to delete the provision whereby local authorities are able to take over land which is already in use as a camping site if they consider it "in the interests of the general public" to do so. I think this is an outrageous provision: that, after people have spent money and provided facilities in establishing a camping site, the local authority should then be able to come along and say, "We think it will be in the interests of the general public that we should take over your site because we charge them 6d. less a night", or something like that. I do not think a local authority should have this power.

I am with the Bill, so far as it goes, in that a local authority should be able to take over virgin land in order to develop a camping site, because there are many places where, I agree, it would be desirable to have camping sites but where, possibly, the private owner does not wish to provide this facility. But where the private owner, or his agent, already provides this facility I cannot see why the local authority should have the power to take over a perfectly good camping site just because they say that it is in the interests of the general public for them to do so. I might add, in parenthesis, that in my experience it is seldom in the interests of the general public for either local authorities or nationalised bodies to take over anything. I beg to move.

Amendment moved— Page 41, line 29, leave out from ("area") to the end of line 31.—(The Duke of Atholl.)

LORD HUGHES

I should like to assure the noble Duke that this is not a case of "backdoor" land nationalisation. It is, in fact, precedented in the Caravan Sites and Control of Development Act 1960—and, so far as I know, that was not introduced by a Socialist Government. These words are there for the protection of the public. I am glad to say that the equivalent powers in the Caravan Sites Act have been used only once in Scotland. This will not be a surprise to the noble Duke's neighbour, because they were used by the Inverness County Council in respect of a site at Fort William. The Secretary of State would consent to their use only if other ways of bringing the site up to an acceptable standard had been tried and failed.

I can assure the noble Duke that every possible means would be used to protect the interests of the public while retaining the camp in its existing ownership; and I am quite certain that the Inverness County Council (which, so far as I know, is no more Socialist than the Government in 1960) felt that it had to operate its powers only because every other possible means of safeguarding the public had failed. That is the intention in repeating the clause in this Bill, and the Secretary of State, before he would consent to such a takeover, would require the most firm assurances from the local authority concerned that it had taken every possible step to achieve its object without acquiring ownership.

LORD BURTON

I think the reason why the Inverness Council acquired the site was because it could not find anyone prepared to risk the capital. It may be that this will be put right by the Countryside Commission.

THE DUKE OF ATHOLL

I should also like to point out that camping sites are not quite on a par with caravan sites, and that, on the whole, camping sites are considerably cheaper to set up. Therefore, there is probably less reason, when they need expansion, for the local authority having this power, which is what I gather happened in the Inverness case. I would also try to cast the noble Lord's mind back to the Caravan Sites Act. On that occasion, so far as I can remember, many noble Lords on this side of the House objected to the provision in that Bill, but owing to the fact that on that particular day the Whips were on we failed to carry it. I think it was my noble friend Lord Haddington who moved the Amendment to delete this particular provision in what is now the Caravan Sites Act. Unfortunately, the English noble Lords who sit on this side of the House were not so worried about "backdoor" nationalisation, and they all voted with the then Government—plus, of course, the noble Lord's supporters opposite. I think it an outrageous piece of legislation that these words should be in the clause. I realise that now is probably not the best moment to divide the Committee, particularly as it may interfere with everyone's lunch. So I beg leave—

LORD STRATHCLYDE

I wonder whether the noble Lord could help me. He seemed to imply that the Secretary of State would have to give permission before such sites could be taken over by a local authority. Is that so or not? I cannot find any reference to it in this part of the Bill.

LORD HUGHES

I can assure the noble Lord that the consent of the Secretary of State is necessary before this can be done.

THE DUKE OF ATHOLL

I hope that the noble Lord will look at this again, if only to write in some provision that it can be done only when the camping site is a health hazard or something of that sort. With those words, and with the warning that I shall return to this matter at the next stage of the Bill, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Clause 50 [Provisions of accommodation, meals and refreshments.]:

THE DUKE OF ATHOLL

When I first saw this clause I was hopeful that it would at least allow a breath of competition into the State management areas so far as the sale of alcoholic liquor was concerned. I do not think I need go into the iniquities of the State management area at the moment, because those who were here when my noble friend, Lord Cromartie, introduced his Bill about eighteen months ago will remember the feeling there was that the State management areas should be done away with, at any rate so far as off-licences were concerned, and that some competition should be allowed in such places. I have put down this Amendment to make it quite clear that the Secretary of State shall not be able to stop a local authority from putting refreshment houses in these areas if they consider there is a need for them. I can assure the noble Lord that, particularly in the Annan area, there is a great need for many more such places. I beg to move.

Amendment moved—

Page 42, line 13, at end insert— ( ) For the purposes of this section the Defence of the Realm (Amendment) (No. 3) Act 1915 shall be deemed to have been repealed").—(The Duke of Atholl)

LORD BALERNO

I want to draw attention to the fact that this clause infringes the principle laid down by the Guest Committee, that giving the local authorities permission to apply for a licence for the sale of liquor is putting the local authority virtually in a position of judge of its own cause. That was something the Committee thought most unlikely ever to happen in Scotland. However, it is such a small infringement that I would not for a moment press it, because I think this exception might well be allowed. I support the noble Duke's Amendment that the areas which were excluded from liberty under the Defence of the Realm Act 1915 should be treated in the same way. It is another slight infringement that would make for greater liberty of the subject.

LORD HUGHES

The Amendment proposed by the noble Duke is technically unsound. The Defence of the Realm Act 1915 was repealed by the Licensing Act 1921, which was, in turn, repealed by the Licensing Act 1949. But what all these Acts had in common was that they continued these special districts. So even if I wanted to accept the Amendment I could not do so, because the Amendment, as it stands, because of these repeals, has no meaning. However, the noble Duke knows that I do not share his views in relation to State management districts. If there is to be an alteration in the law in relation to State management districts it must be because Parliament has discussed the matter and has decided that there is a need for a change, and not just as a result of a by-blow in the middle of lunch-time in your Lordships' House.

THE DUKE OF ATHOLL

As the Amendment is defective—and I was afraid that it might be—and for that reason only, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 50 agreed to.

Clauses 51 to 53 agreed to.

Clause 54 [By-laws.]

THE DUKE OF ATHOLL

As time goes by more and more noise is inflicted upon us. If we are going to list some of the things which are to be put into by-laws for access orders, I should have thought we might also list the making of unnecessary noise which I feel to be on a par with the depositing of rubbish and the leaving of litter. I also think that the making of unnecessary poise disturbs not only other people who wish to take advantage of the land to which these orders apply but also the bird and animal life already on the land. I should have thought that if we are to make such a list then the making of unnecessary noise should be high on it. I beg to move.

Amendment moved—

Page 43, line 41, at end insert— ("( ) the making of unnecessary noise").(The Duke of Atholl.)

VISCOUNT MASSEREENE AND FERRARD

I should like to support this Amendment, particularly with reference to motorcycles and also to speedboats of which, presumably, we shall have a great number in Scotland as a result of this Bill.

LORD HUGHES

My only reason for opposing the noble Duke's Amendment is that the by-laws that would be made could cover the question without the Amendment. I am sure that if the noble Duke looks at subsection (1) he will agree that it is drawn widely enough to cover the point. The wording allows a local planning authority to make by-laws … for securing that persons resorting thereto will so behave themselves as to avoid undue interference with the enjoyment of the land, park or waterway by other persons". This surely covers the making of unreasonable or unnecessary noise and puts it in context; because it is only when noise becomes offensive to other people that it constitutes a nuisance. The lone tenor on the hilltop (just as the same tenor in the bath in the house on his own) is a nuisance only to himself. I think we have made adequate provision for by-laws covering this point.

LORD STRABOLGI

Before the noble Lord speaks further to his Amendment I should like to ask my noble friend why, if this matter is covered by subsection (1), it is necessary to list also the other matters such as depositing rubbish, leaving litter and the lighting of fires. All of them, it seems to me would constitute an "undue interference with the enjoyment of the land", and so on. I cannot see why the Government are averse to adding the words proposed by the noble Duke. It is not just a case of the lone tenor on the hilltop, romantic picture though that may be: it is a question of transistor sets, the numbers of which are increasing yearly. Transistor sets have been banned in most of the Royal Parks in the London area—and very rightly so. This is the kind of thing about which I think it necessary for us to legislate. That is why I consider that the noble Duke's Amendment has much to commend it.

THE DUKE OF ATHOLL

I fully realise that the making of unnecessary noise is covered by subsection (1) but, as has been pointed out by the noble Lord, Lord Strabolgi, so are all the other things listed in subsection (2). I feel that to legislate against the making of unnecessary noise is extremely important. I should also like to point out to the noble Lord, Lord Hughes, that although the lone tenor on the mountain top may worry no other human being, there is no reason to suppose that the golden plovers should like the noise he is making. It may easily disturb their well-earned rest on the top of the mountain—or that of the snow buntings. I cannot see why the noble Lord, Lord Hughes, objects to putting in this sentence, as we have all the other things in anyway, and the subsection starts with the words: Without prejudice to the generality of the foregoing subsection … I feel it is important that the making of necessary noise ought to be mentioned if we are to mention any of these things at all.

1.41 p.m.

LORD HUGHES

I am all in favour of including the making of unnecessary noise, either in the Highlands or here; but the advice which I have been given is that we ought not to accept this Amendment. I am, however, far from persuaded that the advice which I have been given is necessarily the last word. But in order that I do not make unnecessary difficulties for myself I will ask the noble Duke to withdraw his Amendment now, on the understanding that if between now and the next stage I do not provide him with a more satisfactory reason for not pursuing the matter, he will come back with it. I think that we shall also have to arrange to have a little more time on the next occasion to ensure that all the things which the noble Duke is threatening to bring back, and which I may be encouraging him to bring back, may be adequately discussed.

THE DUKE OF ATHOLL

After those kind words, of course I ask leave to withdraw the Amendment on this occasion.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Clauses 55 and 56 agreed to.

Clause 57 [Supplementary provisions as to by-laws]:

LORD HUGHES moved, in subsection (1), after "authority" where that word occurs a first time, to insert "or an Electricity Board". The noble Lord said: With this Amendment I wish to associate Amendments Nos. 60, 61, 62, 63, 70 and 74. They are all related to the same subject, which is concerned with the provision of recreational facilities by our two Electricity Boards. The Boards own large tracts of land and water. Both they and the Government feel that it is right that they should have clear powers to make the most of the recreational potential of their property. As those of your Lordships who have followed the proceedings of the Countryside in 1970 will know, it is fully in accord with the recommendation of the 1965 Conference that statutory authorities should identify recreational opportunities arising from their operations and be enabled to provide facilities for the enjoyment of such opportunities.

The Amendments put the Electricity Boards in the same position as Clauses 63, 64 and 57 of the Bill put local water authorities. That is, they can provide facilities and charge for them or let them; they can provide facilities jointly with other persons and receive contributions from other persons or bodies towards their cost; and they can make by-laws and appoint wardens. Without making any invidious distinctions, I should like to take this opportunity to refer to the enlightened and sympathetic way in which the North Board has already developed the potential of its new works at Pitlochry which, far from spoiling the countryside, add notably to its tourist attractions. Up till now the North Board, by virtue of their "social clause", have been better armed with powers to do this kind of thing than the South Board. The Amendments ensure that in future they will both have all the powers they need to provide recreational facilities. I beg to move.

Amendment moved— Page 45, line 28, after ("authority") insert ("or an Electricity Board").—(Lord Hughes.)

On Question, Amendment agreed to.

THE CHAIRMAN OF COMMITTEES

I understand that Amendments 60 to 63 are consequential Amendments. Does the noble Lord wish to move them en bloc?

LORD HUGHES

With the permission of the Committee, I should like to do so.

Amendments moved—

Page 45, line 28, leave out ("or under") after ("56") insert ("or section (Provision of recreational facilities by Electricity Boards)")

Page 45, line 29, after first ("authority") insert ("or Board")

Page 45, line 32, after ("56") insert ("or the said section (Provision of recreational facilities by Electricity Boards)")—(Lord Hughes.)

On Question, Amendments agreed to.

Clause 57, as amended, agreed to.

House resumed.

[The Sitting was suspended at 1.45 p.m. and resumed at 2.30 p.m.]

The Lord Remnant—Sat first in Parliament after the death of his father.