HL Deb 15 March 1982 vol 428 cc395-402

3.2 p.m.

Bill read a second time and committed to a Select Committee.

Lord Houghton of Sowerby rose to move, That it be an Instruction to the Committee to whom the Bill is committed that they should not allow Clause 197 or paragraph 5 of Schedule 6 to the Bill so far as they have the effect of preserving from repeal the existing Burnley Borough by-law which bans dogs from certain parks in Burnley, unless they are fully satisfied that if similar by-laws were now proposed under Section 164 of the Public Health Act 1875 or any other Public General Act they would be confirmed by the Secretary of State.

The noble Lord said: My Lords, I beg to move the Instruction standing in my name. The background to this Instruction is a regrettable breakdown in the communications and in the normal peaceful relationship between a local authority and a considerable section of its citizens. A fierce controversy has been going on in Burnley for close upon five years over a by-law banning dogs from certain of the public parks and pleasure grounds in the town.

It so happens that this is not the first we have heard of it in your Lordships' House, because the late Lord de Clifford raised the matter when he initiated a debate on dogs in society on 14th December 1977. I spoke in that debate. I was at the time fully informed about the row in Burnley over dogs, because I was chairman of a Joint Advisory Committee on Dogs in Society, which had published a report only a year before. So I was hearing a good deal about dogs in society and in Burnley at that time.

The question before us now arises from the provisions of the County of Lancashire Bill, which saves from repeal in 1984 the Burnley by-law of 1977 from which all these troubles flow. Your Lordships will be familiar with the succession of Private Bills promoted by local authorities created under the local government reorganisation ten years ago. The purpose of these Bills is to update and consolidate in new legislation all that they wish to retain of the by-laws of the past—and this is such a Bill.

The Motion I move is described as a cautionary Instruction. I had earlier intended to put down what is described as a mandatory Instruction; that is, to instruct the Committee to which the Bill will be referred to disallow the saving clause in the Bill which preserves the Burnley by-laws on dog control from repeal in 1984. But it was put to me that this, if passed by the House, which the House might be very reluctant to do, would deprive the sponsors of the Bill of any opportunity of stating their case. I had no intention of doing that, or, indeed, of fettering in anyway the judgment of the Committee on the petitions received on this part of the Bill.

I realise that in moving this Instruction I am doing no more than underlining what will be considered by the Committee on the petitions already lodged, but I feel it desirable to do so because of the highly contentious aspects of this matter. We may find no remedy for what has happened, but we cannot put aside having to decide on the provisions of this Bill. As I have said, this Bill saves from repeal in 1984 and extends the life of certain by-laws which in Burnley have been contested, resisted and defied, with dire consequences to individuals and to the detriment of the social contentment of the town. That is quite enough to make it important.

The principal Act which enables local authorities to make by-laws for the regulation of public walks and pleasure grounds is the Public Health Act 1875—a Public General Act. Section 164 of that Act enables local urban authorities to provide places of public recreation, and it also makes provision for the local authority to make by-laws, for the regulation of public walks or pleasure grounds and for the removal of any person infringing the byelaws". Nothing was said in the Public Health Act 1875 specifically about dogs, though by-laws have been made and confirmed by the Home Secretary banning dogs from certain specified parks or pleasure grounds in particular localities; and there were ten such cases last year. In Burnley, however, the borough council had anticipated by four years the Public Health Act 1875. They had obtained powers of their own in 1871 under the Burnley Borough Improvement Act. They not only took powers to prohibit dogs from entering public parks, but I believe also they prohibited the throwing of snowballs in the street. A far-seeing local authority was the Burnley borough in 1871!

Section 248 of the Burnley Borough Improvement Act 1871 enabled the borough council to make by-laws from time to time for the regulation of parks and open spaces; and among them was the making of by-laws, For preventing or regulating the admission therein of dogs". The word "preventing" the entry of dogs distinguishes the Burnley Act 1871 from the Public Health Act 1875, passed four years later. I am not myself aware of any other local authority which has by-law making powers in the same terms as those granted to Burnley in 1871. Of course, after the Public Health Act 1875, four years after the Burnley Act, no further Private Bills had either cause or need to seek special powers to deal with dogs in pleasure grounds or parks, because they were provided by the Act of 1875 anyhow.

Although the Burnley Borough Improvement Act was passed 110 years ago, no move appears to have been made to use it against dogs in their parks until 1976—five years ago. No by-laws prohibited the entry of dogs into any of the parks in Burnley. Early in 1976, however, the local authority submitted draft by-laws to the Home Office. The draft by-laws were then submitted for consideration under the Public Health Act 1875, but the Home Office asked why they were not seeking the powers under their own Borough Improvement Act 1871. The Home Office pointed out certain difficulties in using the 1875 Public Health Act, but none of these, as far as I can tell, was a difficulty of principle, but rather of convenient procedure. So the local authority fell in with the Home Office view that the by-laws should be made under the Borough Act 1871. Much correspondence took place with the Home Office before the by-laws were finally approved. Then on 19th November 1976 the statutory notice of intention to make the by-laws was published in the local press. This was the first grievous turn of events. The heading to the legal terms of the statutory notice was: "Pleasure Grounds—By-laws". Not a word about dogs; no publicity; just that heading.

That statutory notice in very small print in the local press simply failed to register. We are told—and it is by general assent true, I think—that dogs are an emotive subject, as this proved swiftly to be. But the formal notice of the wrath to come passed almost unnoticed, so much so that the Home Office received in response to the statutory notice only three letters of objection, and two of those were written before the statutory notice had been published. Two people had evidently got wind of what was about to happen, and they wrote objecting before it did. Only one letter of objection reached the Home Office that bore a date after 19th November 1976.

The Home Office did their job and invited the observations of the council on the three objections received. But without waiting for a reply from the local authority, the Home Office went ahead and confirmed the by-laws on 19th January 1977 to become operative on 1st February 1977. The notices actually imposing a ban on dogs in certain parks and pleasure areas in Burnley were not posted until the following June. So peace reigned between February and June. The citizens were apparently unaware of what was awaiting them when the notices came to be posted in June. Then when they were about to walk their dogs in the parks they saw a notice which said: "Burnley Borough Council. No dogs allowed. Penalty: liable to a fine of £20".

Then the balloon literally did go up: distress, anger, adverse publicity and hostility. The reaction of the local people was swift and unmistakable. In July, the month following the posting of the notices, a large demonstration of protest was held outside one of the parks and the protestors eventually went through the park accompanied by the press, photographers, dogs and children.

The imposition of the by-laws appeared to have taken the public by surprise and the hostile reaction of Burnley's dog owners appears to have taken the council by surprise. So the council's recreation and leisure committee met on 8th August 1977 to give further consideration to the by-laws on dogs. A petition containing 3,000 signatures was presented to the committee signed by residents mainly in the densely populated parts of the town, close to the open spaces affected by the ban.

The sub-committee of the council allowed spokesmen for the objecting citizens to state their case. The committee, however, decided to recommend to the council no change in the by-law. This was swiftly followed by plans for another demonstration, this time a defiant walk through the banned parks with dogs. The council met this threat of defiance by applying to the vacation judge for an interim injunction. This was granted against certain of the organisers of the planned protest. Others, however, went on their protest walk with their dogs and this was followed by a shoal of letters to the Home Office protesting about the whole business.

Thereupon, the Home Office—not surprisingly perhaps—sat up and took a little notice of what was happening in Burnley and asked the council to consider allegations that the Home Office had been misled as to the nature of some of the areas covered by the ban. In September 1977 the Home Office asked for an answer to these allegations. The council confirmed that the parks concerned came within the terms of the assurances that they had given to the Home Office in 1976, not only about the parks banned but about accessibility to other areas for people to take their dogs.

The Home Office accepted that assurance. But there was to be no peace in Burnley. Attempts to find a formula for a compromise between the council and the protestors which had split the town were unsuccessful. Injunctions against some objectors were granted and eventually the validity of the by-law was tested in the Chancery Division of the High Court in July 1978. Sir Hugh Francis, QC, sitting as a deputy High Court judge, rejected the contention that there was any misrepresentation by the council; nor, as it seemed to him, was there any mistake on the part of the confirming authority.

This is one aspect of the matter which I suggest needs to be looked into. I am advised that in the course of the proceedings in the court an official of the Home Office asserted that the Home Office would have been unlikely to confirm the by-laws as they did had they known at the time all they had learned since—particularly about the availability of alternative areas reasonably accessible. I have not been able to examine the record of the court so I cannot vouch for the accuracy of what has been reported to me. However, the maps did not convey the true nature of the terrain of Burnley.

The judge, however, decided that the real point of the case was: Is the dog ban reasonable? After a personal visit to Burnley to see for himself, and after reviewing the matter fully, the judge held that the by-law was valid and the council were entitled to relief to ensure due observance.

Some of the defendants gave the appropriate undertakings at the conclusion of these proceedings; but others refused. The sequel was the imprisonment of several defendants for contempt of court, and one of those was a married woman who had a quite large family and she declared that to her it was a matter of conscience. This, of course, stirred up more controversy and bitter feelings in Burnley—a very unhappy town.

The latest development is over the huge costs granted to the council against the defendants, which they have not paid and are unlikely to be able to pay. While some time ago the council decided upon taking bankruptcy proceedings against the defendants who owed costs, this step has recently been halted. It is understood that another upsurge of local indignation and protest led the council to change their mind because just recently the council in a special full session decided, after a four-hour meeting, by a vote of 28 to 20 to hold bankruptcy proceedings in abeyance and to remain free to take further action to recover some or all of the costs outstanding—some £12,000—if the circumstances of the three defendants changed for the better. So the headline of the Burnley Star the next day was: An 8-year time bomb for dog trio. The gun at their heads". That was the banner headline.

Now, to leave that unhappy story there—because at this very moment that is where it is—we had better come to the more mundane problems of this Bill. The material provisions of this Bill appear to me—I have not taken legal advice on this, I have just studied the matter as best I can—to be Clause 197 and in paragraphs 2 and 5 of Schedule 6. The schedule preserves the by-laws from repeal if what was done could have been done under any provision of a Public General Act relating to the same matter in the same area. That appears to make the by-laws in a Private Act virtually interchangeable with the provisions of a Public General Act which might apply to the same matter in the same area.

It seems to me, therefore, that if what the Burnley by-law does could have been done under the Public Health Act 1875, then it is preserved under this Bill: hence the Instruction to the Committee to which the Bill will be referred to disallow the saving clause relating to the Burnley by-law unless they are fully satisfied that if similar by-laws were now proposed they would be confirmed by the Secretary of State under the 1875 Act. That seems to me to be the crucial test. If the Committee is so satisfied then the Bill may remain as it is. If not, the saving clause should be disallowed and Burnley, or any other appropriate authority, if they saw fit to do so, would make a fresh application when the Burnley Act by-law expires in 1984. This Burnley could do under Section 164 of the Public Health Act 1875 and, as appropriate, under Clause 31 of this Bill which provides specially for the protection of grass verges maintained in an ornamental condition.

The judgment of the court was concerned more with the reasonableness and the validity of what the borough authorities did in 1977 under the 1871 Act. The test which the Motion asks the Committee to apply is whether, if an application were made now under the Public Health Act 1875, they are fully satisfied that it would be confirmed. I hope I have made the position of the Bill as clear as possible, and I hope that your Lordships are in no doubt as to the turmoil which goes on in the Borough of Burnley.

Moved, That it be an Instruction to the Committee to whom the Bill is committed that they should not allow Clause 197 or paragraph 5 of Schedule 6 to the Bill so far as they have the effect of preserving from repeal the existing Burnley Borough by-law which bans dogs from certain parks in Burnley, unless they are fully satisfied that if similar by-laws were now proposed under Section 164 of the Public Health Act 1875 or any other Public General Act they would be confirmed by the Secretary of State.—(Lord Houghton of Sowerby.)

3.23 p.m.

Lord Sandford

My Lords, I have been asked to speak on this matter by the Borough of Burnley, and I am grateful to the House for its indulgence when these matters come before it. Last month it was the Shrewsbury Football Club and now it is the Borough of Burnley's dog owners. r am anxious to speak briefly because I want to preserve my failing voice for sex shops and Amendment No. 96 of the Local Government (Miscellaneous Provisions) Bill. I believe I can be brief. It is absolutely evident that this matter may have been contentious in Burnley, but it has now been resolved and I have to say that Burnley's by-laws on this matter are not in any way out of the ordinary. They conform entirely to the Home Office guidelines—if they did not they would not have been approved—and in addition they were confirmed by a High Court judge in 1978. Indeed, several sets of further by laws, more stringent from the point of view of dog owners, have been approved by the Home Office since.

I would put to the House that it is no way an occasion for a review of Burnley's by-laws, and I suggest that the whole matter can very safely be left in the hands of our own Select Committee to consider. I believe that the Instruction is as ineffective as it is unnecessary. It will do no harm to pass it, but if a Division is called I will vote against it, and I would recommend your Lordships to do the same.

Lord Belstead

My Lords, I should like, if I may, to say a brief word from the point of view of the Government on the Instruction of the noble Lord, Lord Houghton of Sowerby. I have no doubt the Committee will wish to address itself, quite properly, to the question of whether the Burnley dog by-laws can be confirmed under the Public Health Act 1875. But whether or not it would be confirmed must remain a hypothetical question since my right honourable friend the Home Secretary would reach his decision on the merits of a particular case as and when it arose once he had satisfied himself that the by-law was legally valid. I think these legal problems are a matter for the Committee to discuss in depth and therefore, from a rather different point of view, I am saying very much the same as my noble friend Lord Sandford—that, with respect to the noble Lord, Lord Houghton, the Instruction would be of very little effect.

Of course, it is for the Committee of your Lordships' House to decide on its proceedings, but I think that because the Committee cannot possibly ascertain whether or not my right honourable friend the Home Secretary would confirm by-laws similar to those already in existence in Burnley, since that decision would have to await the scrutiny of the merits of the case in the event of Burnley wishing to make new by-laws for dogs, the Instruction will really be of very little effect.

The Chairman of Committees (Lord Aberdare)

My Lords, it would be quite unsuitable for me to take sides in this dogfight. I would merely say a quick word on the procedure that will now follow the Second Reading of this Bill, with regard to the question of the Instruction. The Bill will in any case go to a Select Committee. There are in fact 19 petitions against it, of which 9 are concerned with the question of dogs and Clause 197, with which the Instruction is also concerned. If this Instruction is agreed to by your Lordships it will also go to the Select Committee, and the Select Committee will also have available to it the Hansard of this particular debate. So I would suggest to your Lordships that the best thing is for the matter to be left to be gone into thoroughly by the Select Committee, who will have the advantage of counsel on both sides, for the promoters and the petitioners.

Lord Davies of Leek

My Lords, there is a point I should like to make. Do we know who will be on that committee? What will be the position of those who may be on that committee if this issue is pushed to a vote? Why put it to a vote? What is the position of those who may be on the committee?

Lord Aberdare

My Lords, the members of the Committee have not yet been chosen, but, as usual in your Lordships' House, they will be entirely independent people who have no axe to grind in this matter.

Lord Leatherland

My Lords, if members of the Committee are approached on this matter, will they be asked whether they have a dog?—because they might be biased if they have.

A noble Lord

Or if they have not.

Lord Houghton of Sowerby

My Lords, I will not detain the House for more than a moment or two. I did, during the course of my speech, say that this Instruction did no more than underline what the Committee dealing with the Bill would have to consider anyhow on the petitions already received, so that whether or not this Instruction is passed the Committee will have to do the job the petitioners require it to do. I thought that to underline the importance of this matter and sketch in some of the background to it might not only enlighten the House but generally convey the atmosphere in which the Committee might like to consider the petitions received. That seemed a reasonable thing to do. I sincerely hope therefore that the House will feel able to pass this Instruction without a Division and let the Committee get on with its complicated task.

I take the point made by the noble Lord the Minister about the position of the Home Secretary here, but I think the Committee will have to make the best they can of the situation. They cannot do the impossible, but they will have before them the judgment of the court, the evidence of the petitioners and a great deal else relating to the technical side of what was done about the by-laws. Therefore, I sincerely hope that your Lordships will feel disposed to accept the Instruction I have moved.

On Question, Motion agreed to.

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