HL Deb 20 December 1983 vol 446 cc638-58

6.8 p.m.

The Lord Advocate (Lord Mackay of Clashfern)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The Baroness WOOTTON OF ABINGER in the Chair.]

Clause 1 [Powers and duties of local roads authorities]:

Lord Ross of Marnock moved Amendment No. 1: Page 1, line 8, leave out ("roads") and insert ("highway")

The noble Lord said: We are now embarking on a very important Scottish Bill. Originally, there were 147 clauses. Now there are more, as a result of the second thoughts of the noble and learned Lord the Lord Advocate.

I should like to make one or two preliminary observations about the Bill. It surprises me that a Bill which has been 10 years in the preparation should have been so imperfect three weeks ago that the Government have put down 60 or 70 amendments to it. If the Government had had their way, we should have taken the Committee stage about a week earlier. That would have denied the noble and learned Lord the Lord Advocate the opportunity of putting down his last 10 or so amendments, which are still starred amendments according to the Marshalled List. It shows a remarkable weakness somewhere.

I am very grateful to the Scottish Office for sending me the tome entitled Notes on Clauses. Mind you, if it had arrived a little earlier it may have helped me with the first 73 amendments which I have put down. But it arrived far too late for me to learn the inner thoughts of the Scottish Office in respect of this Bill and to help me when I was getting to the amendments. But I must say that as I read the Bill I found I had never come across such a mess before. I do not know what their thoughts were when they started out on this Bill. Perhaps they were, "It will be a great idea to codify the law in relation to roads in Scotland. Let us modernise it; let us bring it up to date". I do not know whether the draftsmen realised what a mess they were getting themselves into.

My first amendment gets right to the heart of the matter, when I suggest that we leave out the word "roads" and insert "highway". I do not know whether the Committee realises it, but if one goes to most of the councils in Scotland to find out anything about the roads one asks for the highway department. That is what they are—highways departments. But the draftsmen had the brilliant idea of changing "highways" to "roads". It means, of course, that every department will be painting for weeks to get rid of the word "highways" and putting in the word "roads" instead; getting rid of "highways department" and replacing it with "roads authority". People will see new empires springing up. It will be remembered that we used to have the old education authorities. They are no longer education authorities because they are just education departments of the regions. It may well be that the change to "roads authorities" will be out of date before we have finished with this Bill.

The Government have got into an awful state with this Bill, as can be seen if one looks at some of the amendments. Amendments Nos. 162 and 163, which have been put down since the printing of the Bill, run to pages and pages of new discoveries of amendments that will need to be made because the Scottish Office want to change the word "highway" to "road", and because they want to change the word "street" to "road". As far as I know, we in Scotland were doing all right the way things were. This was not an aspect that troubled the Stodart Committee when they looked into local government and the responsibilities as between district and regional councils. I do not know whether anyone told the Scottish Office about the terrible mess that Scottish legislation was in with regard understanding the difference between "roads" and "highways". I am perfectly sure they did not. But having followed that through, we have got ourselves into a complete quagmire.

I do not believe that the law will be properly codified and properly modernised. By the time I had read through to the end of this Bill. I had come to the conclusion that it would have been far better to let things alone. I did not know that we had so many draftsmen doing nothing in Scotland that they could afford to spend so much time on this kind of work. I am sure that the noble and learned Lord the Lord Advocate appreciates that I am talking reasonable sense—that there is an argument that we should have left matters alone.

This is not consolidation. If this had been consolidation, the Bill would have gone before a joint committee of the Lords and the Commons. They would have gone through every clause and would have ensured that there was no actual change in the law, and that it was proper consolidation. It could then have gone through your Lordships' House in about two minutes. But this is codifying and modernising. As if that were not enough, there are also innovatory provisions; new powers. The whole Bill finishes up as a proper mess.

I do not know how much time the noble and learned Lord the Lord Advocate has spent on this Bill and how much time his civil servants have spent on it. I do not have the backing of any civil servants when I am reading a Bill such as this, but I can tell him that I have not gone through all the sources yet—and I am perfectly sure the same applies in respect of every noble Lord here. It is obvious that before we are finished with this Bill there will probably be another handful if not tens of amendments from the Scottish Office again, they having discovered other legislation that has to be modernised because we have taken the decision in respect of the word "highway".

I am quite serious about this point. We could have had a Bill giving the new powers and have left the other thing alone. It is not an essential Bill. The only essential aspect is the 34 new powers which I listed at Second Reading. We would then have had a reasonable Bill which everyone could understand; which could be read and properly understood by everyone.

I have not yet mentioned the drafting of this particular Bill—but what drafting! I was speaking to one of my noble friends about it today. He said, "This is probably an inherited job. It was probably the father of the present draftsman who started it, and then the son became a draftsman and finished it off". There have been so many draftsmen at it over the years that one can recognise the different hands in the different sections, and they do not all add up.

I should have liked it if we had had more time, but this work really should have been done by a committee. We did this with the Civic Government (Scotland) Bill, which did the very same thing for civic government—getting rid of ancient statutes and deciding what we would keep and what would be carried on, so that we would have a new code of civic government. But that work was done by the inter-departmental committee. Then it went before yet another committee; and further work was done by the Scottish Office after that. I do not know how this Bill was dealt with and who was consulted, but by starting off in the first line by saying, a local roads authority shall manage and maintain all such roads in their area", et cetera, and by thus getting rid of the word "highway", we have got ourselves into a bit of a mess. It just denotes the change that has taken place and the complexities which arise there from. Those are my first few thoughts on the subject. I beg to move.

6.19 p.m.

Lord Mackay of Clashfern

The noble Lord, Lord Ross of Marnock, has made a number of general comments in relation to this particular amendment. My view of the position is that roads legislation in Scotland has been added to piecemeal over a long period. The difficulty for the practitioner in finding out the relevant law has been quite remarkable. The object of this Bill is to try to bring together in one Bill all the provisions which relate to roads, and to make them consistent and reasonably clear and part of a single structure.

So far as the drafting of the Bill is concerned, those arrangements have been under the responsibility of a single draftsman for the whole Bill. As far as I know, the draftsman's father was not engaged on this matter; but I do know that when the noble Lord, Lord Ross of Marnock, was Secretary of State for Scotland a good deal of work was done in the Scottish Office in preparation for this Bill—as I believe he mentioned on Second Reading. I should like to say how grateful the present Government are to him for all the work that was done as part of his responsibilities at that time. If we have not made as excellent use of his work as he would like, we have done our best to be worthy successors to him in this particular operation. I can certainly see that there is room for improvement in a Bill of this sort, and I am extremely grateful for the amendments which noble Lords in all parts of the House have seen fit to put down to the Bill and which we shall be very happy to consider. I am glad to say that some of the proposals that the noble Lord, Lord Ross, and his colleagues have made are acceptable to the Government, and I hope to be able to accept those in due course.

So far as this particular amendment is concerned, the word "highway" is one which has never had a very precise connotation. We are aiming to bring into the conception of "road" all the various types of public right of way that one can have, and the roads authority seems the right authority for dealing with roads. It is for that reason that we have thought it right to change this particular name from the Highway Authority to the Roads Authority. In Scottish legislation one finds a great number of names—roads, highways, streets and other things. Usually in a particular field of law if a different word is used the intention is to strike a different meaning; but one cannot be confident, for example, that a "road" and a "highway" under present Scottish legislation mean different things; often they will mean the same. Accordingly, it seems right to try to reduce the concepts in number and use the word "roads" to describe the authority responsible for these consistently throughout the Bill. I hope in the light of that explanation the noble Lord will feel able to withdraw this particular amendment.

Lord Hughes

In the light of what my noble friend Lord Ross of Marnock said about whether this Bill was necessary, and that a much more reasonable thing would have been to produce a simpler Bill giving the additional powers which are contained, the noble and learned Lord, the Lord Advocate, will remember that at Second Reading the tome to which my noble friend referred arose as the result of an answer which Lord Gray of Contin gave to me: that he could not at that time say exactly whether, when it was said that this was just codifying, there was not in fact a change, and that he would circulate more information. I must agree with my noble friend; so far as I was concerned it certainly arrived, but it did not arrive at such a time that I could make much use of it. In case the noble and learned Lord, the Lord Advocate, has any fears on the matter for the next stage of this Bill, I will give him this assurance: that I have no intention of making any use of it to search for yet more amendments.

The bulk of the amendments which are being put forward really are seeking to conform to what the introduction says, to codify and modernise. I will come back to that later on. The noble and learned Lord has said that the reason for putting "roads" in as a single word which will cover any other description that existed in the past is to make absolutely certain that no difficulties arise. I should like to ask him, has there been any occasion in the past where legislation has referred to "roads" or "streets" or "highways" which has led to any difficulty with any of the authorities carrying out their powers? In conversation at the tea-table the other day with one of his noble friends, she said, "I always understood that in the cities you talked about streets and in the countryside you talked about roads". I think that was probably as good a summary of the situation as you can get. I was for many years a member of a local authority. I do not think anybody ever raised with us any legal problem as to whether a street was a road or a road was a street. So there is something really important in what my noble friend Lord Ross says about whether the Bill is really necessary.

Lord Ross of Marnock

I hope we are going to get a better effort from the noble and learned Lord the Lord Advocate. What he is doing really is justifying this tome. I do not think there has been any justification in what he says. I have been looking again at his own amendment, which came after Second Reading, so they had forgotten all about it; they did not know about it in the Scottish Office. It is Amendment No. 162. If noble Lords will open their "hymn books" at Amendment No. 162 they will see that it is a fairly long amendment. It consists of four full pages of the Marshalled List, and all it is doing is getting rid of the word "highway" and putting in "road". I am perfectly prepared to bet, here and now, that before we have finished the Third Reading of the Bill we shall have another amendment with another list of "highways" that have to be erased and "roads" put in.

My noble friend is quite right. I have asked the Lord Advocate again, when have we had difficulties with all this diversity of descriptions of streets, roads, pavements, alleys, which are now all going to be lumped together, quite unjustifiably in my mind, with the word "roads"? When we get to the definition of "roads", I wonder whether someone will justify having any houses on roads, because they have got numbers and they are related to the road, but the houses are no longer part of the road. I wonder whether we shall search the Local Government Bill to see whether we have made sense of the changes that need to be made there from "highways" to "roads", "roads" now comprehending everything you can think of. Well, of course they have not imagined them all yet, but they will get round to it. I do not think it was necessary at all.

As the noble and learned Lord knows, much of this stemmed from the reorganisation of local government. I did not do that. It was the Tory Government of'1973 that reorganised local government in Scotland and gave us the much loved regions we have, with one region comprehending half the population of Scotland. We will come to that as well in relation to one of the amendments. I do not know whether any Minister sat down and thought about this point or whether it is because a draftsman who had been dabbling at this at various times over the past 10 years said, "Ah!, we have got something here", and then started to make a 147-clause, eight-schedule, Bill. As somebody said, "Is your work really necessary; is it worth while and is it going to simplify?" I do not think it is going to simplify at all. That is a sincere and honest feeling after spending quite a lot of time, more than I can afford, over this particular Bill.

I am not going to divide the Committee on this amendment, but I warn the Government that they have not finished with this Bill. I see the Chief Whip of the Government in this place. He realises, of course, that 70 amendments are down in the name of the Government. The amendment I mentioned, No. 162, and then No. 163, are pages and pages long—single amendments! So please do not blame the Scots for being a bit stick-in-the-mud about this. I like to see statutes clear, I like them to be readily understood, I like to see them well drafted. I question whether this Bill was ever necessary, and if it was necessary it should have been far better drafted than it is. In view of the fact that the Government are not going to change their mind it means that they are not going to look at it for the first time as a whole. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Ross of Marnock moved Amendment No. 2: Page 1, line 10, leave out from ("list") to ("prepared") in line 11.

The noble Lord said: This is a simple amendment. It leaves out the words: (in this Act referred to as their 'list of public roads')". With all due respect, it has not been referred to as their "list of public roads". I consider that the words are absolutely unnecessary. It would be much simpler for the Bill to read: entered in a list prepared and kept by them under this section". That gets rid of a line of prose which, in any case, no one understands.

I am very grateful for the help that I have had from my noble friend Lord Hughes. who is as appalled as I am at the language in this Bill. This is virtually a crusade we are joining to try to get the Scottish Office to simplify the language. It is not enough to codify, modernise and have a few innovations. We want the Bill simplified and made clear. I hope this is the first amendment that the Government will accept. I beg to move.

Lord Mackay of Clashfern

I join with the noble Lord in thinking that matters should be clear and plain. I shall do everything possible to achieve that result. The idea of the phrase in the brackets which the noble Lord wishes to leave out is that it will be easily referred to later in the Bill, because time and again this concept comes up. To set out the full description each time would make the Bill a great deal longer rather than shorter. This is a common technique and, I suggest, a simple, plain technique. In the light of that explanation I hope that the noble Lord will feel that this is a reasonable way to go about it.

Lord Ross of Marnock

It is a technique that I am beginning to question. It is unnecessary, here or elsewhere in the Bill.

Lord Hughes

I could have understood that explanation if it had cut down elsewhere. I would expect that thereafter all one would need to do is refer to the list. But right in the very first line of Section 2 the words "the list of public roads" are repeated again, so the words in brackets do not remove the need for reference to it. For that reason I agree with my noble friend that these words in brackets do not serve any useful purpose.

Lord Mackay of Clashfern

I have to respectfully disagree about that. As regards Section 2, or Clause 2, that is a different list. That is the list kept by the Secretary of State for Scotland, and that list is also referred to later. That is the reason why it is mentioned.

Lord Hughes

It is not. The noble and learned Lord has not picked me up correctly. I said Section 2, not Clause 2. I should have said subsection (2), and it is the very first line, line 17, of that subsection, which reads: Subject to subsection (8) below, the list of public roads prepared by the local roads authority". That is not the Secretary of State's list.

Lord Mackay of Clashfern

I am sorry; I thought the noble Lord was referring to Clause 2. So far as this is concerned, it is the subject of an amendment. The purpose of expressing it in this way in subsection (2) is to make it clear that what this list is to be—because one must start with this list—and what subsection (2) is requiring, is that what is on the existing list at the date the Bill comes into force will become the first list under the Bill. One needs, therefore, to pick up the existing situation—the situation as it exists when this Bill comes into force—in order to put in, for the first time, the list which is required in the Bill under subsection (1).

Lord Hughes

Will the noble and learned Lord therefore go further and indicate to us what the harmful consequences would be if my noble friend's amendment was accepted?

Lord Mackay of Clashfern

The harmful consequences would be that one would have to repeat the description, in full, of this list of public roads every time it occurs in the Bill; and it occurs quite a number of times.

Lord Hughes

No; one could of course do what would seem to be the straightforward thing and define a list of public roads in the interpretation clause, which, after all, is the easiest place to find it.

Lord Mackay of Clashfern

That is certainly another possibility, but it is not a question of leaving it out altogether; it is putting it somewhere. The noble Lord, Lord Hughes, indicated on Second Reading, as I recall, that it seemed convenient to have interpretations at the beginning. This is a matter which is fundamental to the way the Bill is constructed. It seems very easy to slip in the reference point right at the beginning. I submit to your Lordships that it is a very convenient way, in this context, of achieving a fairly clear result.

Lord Hughes

I do not want to make this a duet between us, but the noble and learned Lord has misrepresented me. I said that in one of the Acts which are listed, and where the changes are taking place, the interpretation clause is at the beginning of the Bill, not that one found interpretations in other clauses at the beginning of a Bill. It seemed to me that the old way of having interpretation at the beginning of the Bill was easier to follow than having it right at the end of the Bill. It is much easier to turn back to, say, Clause 2 than to look for Clause 37, Clause 93 or, in the case of this Bill, Clause 143. That is what I said. I was not suggesting that we go back to the old method, although it seemed to be an advantage. I believe—and I have amendments down later on this issue of interpretation—that it will always make a Bill easier, if wording is used and people do not know exactly what it means, that they can turn to the interpretation clause to find the meaning. They should not have to search through different parts of the Bill to find different parts of the interpretation.

Lord Ross of Marnock

I have a great deal of sympathy with the noble and learned Lord the Lord Advocate when he says that we should get it done here and not in the interpretation clause, Clause 143. I do not know whether anyone has looked at that clause. I can tell your Lordships that it is a joke. It is the first interpretation clause that I have ever seen with powers in it. I do not know whether the Lord Advocate has looked at the clause. Has he looked at the main interpretation clause? Is he satisfied with it? I can well understand why, if he has looked at it, he does not want to put anything else into it. It is such a mess. However, we shall come to that clause later.

Local authorities have been working with lists of roads for long enough. They already exist. But if there is a difficult way of doing it, the draftsmen have found it here. I do not commend it. I trust that the Lord Advocate will get someone to look at the drafting of this Bill between now and the next stage. I have never seen a worse Bill. However, the Lord Advocate is happy, and he is the man that counts. He is responsible for the draftsmen. They are employed by the Crown Office and he is the head of the Crown Office, so he accepts responsibility for everything that they do. He is satisfied: I am not. But who am I to quarrel with him on such a point? Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 3: Page 1, line 12, leave out from ("for") to ("they") in line 14 and insert ("these").

The noble Lord said: This is another amendment put down because there are more words in the Bill than are needed. I apologise to your Lordships for omitting a word. The amendment should read, "leave out from ('and')", and not, "leave out from ('for')". The clause at the moment reads: prepared and kept by them under this section; and— this is the part that I wish to leave out— for the purposes of such management and maintenance (and without prejudice to this subsection's generality)". This is just jargon—words, words, words. With my amendment, the subsection would read: and they shall, subject to the provisions of this Act, have power to", and so on. That would be perfectly clear. Perhaps that is the trouble. However, I beg to move.

Lord Mackay of Clashfern

The structure of this clause is that the roads authority is given the responsibility of management and maintenace. The purpose of the provisions to which the noble Lord has drawn attention is to give an explanation by way of illustration—although not exhaustively— of what that management and maintenance is to consist of. In my judgment. the phraseology employed is of the type that is perfectly common in similar Acts of Parliament. To take out the words in the manner that the noble Lord suggests would restrict the powers of the roads authority to the particular examples given. That would be to narrow the powers from what they are at present. I hope that that clarification is sufficient for the noble Lord's purposes.

Lord Ross of Marnock

What the noble and learned Lord says is not sufficient. Indeed I do not accept what he says. The noble and learned Lord says that such words are common in similar Acts of Parliament. Is it not time that the practice of putting in unnecessary words was stopped? I do not accept that the amendment would limit the powers of the local authority to exactly what is said in the clause. The noble and learned Lord should remember that we have the other clauses in the Bill to come, which considerably widen the provision far beyond what he says.

I think that the phrase, without prejudice to this subsection's generality", is probably the dream answer of the draftsman. I do not know what the "subsection's generality" is. We shall return to this matter in clause after clause. I want to see Scottish legislation clear and not cluttered with jargon. I am not prepared to accept it when a Lord Advocate or any other Minister tells me that other Acts of Parliament of this kind have that wording. That is the trouble. They should not have. Acts of Parliament should be clear. Ordinary people and ordinary lawyers—not just Lords Advocate—have to read Acts of Parliament. That explanation is not good enough. We should start modernising the wording now. I had hoped that the Government could have done better, but I shall not press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

6.44 p.m.

Lord Ross of Marnock moved Amendment No. 4: Page 1, line 15, leave out ("reconstruct, alter, widen,")

The noble Lord said: I shall get the same answer on this amendment as on the previous one. We have two versions for this alteration, Amendments Nos. 4 and 5. The Lord Advocate can have his choice. I shall leave my noble friend Lord Hughes to speak to Amendment No. 5.

The Government turned down the previous amendment and we are left with this term "generality". It should cover everything, so we do not need anything more. But we have this list: they shall, subject to the provisions of this Act, have power to reconstruct, alter, widen, improve or renew any such road". Do we need the words "reconstruct", "alter", and "widen"? Would it not be sufficient merely to say, improve or renew any such road"? I am perfectly sure that a local authority would not reconstruct, widen or alter a road unless it was improving it. I whisper to the Lord Advocate that in later provisions of the Bill we have the word "improve" without details of widening, reconstructing and the rest. He could quite safely take the words out and the whole aspect of roads legislation would not collapse before our eyes. People might even think that there was a lot of sense in saying merely "improve" without detailing the various kinds of improvement. I beg to move.

Lord Stodart of Leaston

I hope that my noble and learned friend will forgive me if I say that I support the amendment. I remember when I had to look at Bills after they had been drafted. One looked at one or two words and wondered whether to put in a few more words to cover every possible exigency. The advice that I was given was that however many words one puts in there will almost certainly be one that is forgotten and then the whole piece of legislation may be worthless. With great respect, there is just the possibility that a road authority might want to narrow a road, and that provision does not appear. That is why, quite frankly, as a perfectly simple citizen, I cannot think that an authority could wish to do anything to a road that is not covered by the simple word "alter".

Lord Hughes

Did the noble Lord conclude his remarks by mentioning the simple word "alter"? That is my amendment and I shall come back to it.

The Earl of Selkirk

I wonder whether my noble and learned friend the Lord Advocate can reconcile the phrase: without prejudice to this subsection's generality", with then going into a whole lot of detail which covers almost everything that there could he. I think that one or other provision must come out. I cannot follow why the two are necessary.

Lord Hughes

My noble friend Lord Ross of Marnock referred to Amendment No. 5. He has also said that he has down 73 amendments. We have worked on the Bill quite independently. I produced some 30 amendments. When we got together, to my astonishment at least, we found that we had produced alternative versions of the same amendment only in one case, and that was Amendments Nos. 4 and 5.

If I understood the noble and learned Lord the Lord Advocate correctly. the reason for putting in the words, without prejudice to this subsection's generality", is that the more one specifies the more one endangers the generality and very often that provision was put in to make it perfectly clear that where items were specified they were illustrative and not exhaustive of all that might be done. Having accepted that the Government wished to keep to the hallowed phrase. without prejudice to this subsection's generality", I looked at the clause to see how otherwise to improve the provision. I looked at the words in line 15: to reconstruct, alter, widen, improve or renew". I made my amendment to leave out all those details apart from "alter" because I question whether a road can be reconstructed, widened, improved or renewed without altering it. Indeed can anything else be done to a road without altering it. The simple solution is for the Government in due course to accept my Amendment No. 5. If it should conceivably emerge at some distant time in the future, through the magic of science, that something can be done to a road which does not alter it, one can fall back on the phrase, without prejudice to this subsection's generality".

Lord Mackay of Clashfern

At the moment, we are, strictly speaking, on Amendment No. 4, although we shall perhaps have the great pleasure of considering Amendment No. 5 in a little while. It may be wise to have Amendment No. 5 in mind when considering suggestions on Amendment No. 4. The principle obligation is to manage and maintain the road. The great thing about maintaining a road is that you keep it as it is. That is the primary object. The main job of roads authorities is to keep roads as they are, in a good state of repair without any alteration and without any of these other operations which are described. That is the ordinary job of the roads authorities. However, we want to give them power, when circumstances require, to make changes in the roads.

I think that many people would say that every change was an improvement. Then, of course, the only word that you would need is "improvement". But these are matters to some extent of opinion. This is supposed to be a Bill that will become an Act for the use of practical people. The idea is to make it clear that the obligations of management and maintenance, keeping the roads as they are, is not the whole story. There is more to it than that. It is that the roads authorities have power to do operations on the roads to change the roads.

It would be perhaps a matter of individual choice as to which of these words we should pick out as the one that is most comprehensive, but there is a certain amount of difference in each of them. It would be possible to improve or renew a road without reconstructing, altering or widening it in the sense of altering that piece of ground over which the road goes. Some alteration of the surface might be involved in that situation. So we have tried not to approach this matter in as confined a way as would be done if it was purely consolidation. We have tried to take account of developments since the legislation was originally passed. Some of the Scottish roads legislation is extremely old. A good deal has happened since it was originally enacted. We have tried to follow the structure of the legislation that we are putting into this code, but we are trying to take account of putting it into a single consistent structure.

I would suggest to your Lordships that it is valuable for practical people to have the examples given of what the roads authority may do. My noble friend Lord Stodart is right: there are dangers in particularisation, which is the reason for the phrase "without prejudice to this subsection's generality". In other words, we are giving illustrations so that people may be absolutely clear, when they are within a particular illustration, that they are all right, but that they need not be too anxious if they are not within one of the particular illustrations—if the vision of the noble Lord, Lord Hughes, turns out to be actuality—so long as they come within the general words of the provision. I am prepared to look at this matter, as at every matter that is raised during the course of the evening, from any of your Lordships, but that is my view at the moment. I would advise your Lordships that the clause would be better if these words were left in.

Lord Ross of Marnock

Frankly, I do not see it. If you are going to widen a road, you are only going to widen it to improve it. If you are going to do any of these things, you are only going to do it to improve the road. So "improvement" covers the whole lot. The Lord Advocate, in his explanation, used one other word. That word is not in the clause. We had better put it in. He used the word "change". You would not change it unless you were going to improve it, would you? So it is comprehended within "improvement". The Lord Advocate has virtually approved my case. I am grateful to the noble Lord, Lord Stodart. That is exactly the point I am making.

We are going back over 100 years in respect of some of this legislation. It will be another 100 years before we get to it again. Why not do it right this time? It can be simplified without taking away any of the powers that the new roads authorities, be they local or the Secretary of State, will have at their elbows. Later on, the Bill actually uses the word "improve" without mentioning "widening". If we are to have these three here, we shall have to have them elsewhere, on the basis of the argument of the Lord Advocate for consistency in all things. However, I shall bow to him at the moment. I shall jog his memory when we come to the others. If I have no amendment down—I probably have not—it is because that would be doing his work for him. I take these words out but I do not put them back in where he has forgotten to put them in. I hope, however, that the civil servants will examine the matter, probably during the hour when the Scots, who are not interested in the next piece of legislation, will be having some relaxation. I trust that the civil servants will see some of the inconsistencies which do not support the argument produced by the Lord Advocate in respect of this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hughes moved Amendment No. 5: Page 1, line 15, leave out from ("to") to ("any") and insert ("alter")

The noble Lord said: If it were not for the time of evening, I should be seriously tempted to divide the Committee on the amendment because I do not believe that the noble and learned Lord has given a proper answer. I can understand putting in alternative meanings if any one of them can be doubtful, but the Lord Advocate did not answer the question that I put to him. Can you reconstruct a road without altering it? Can you widen a road without altering it? Can you improve a road without altering it? Can you renew a road without altering it? Can you think of any other thing than these that you would do to a road? The Lord Advocate, unwittingly, I think, gave one answer: he said that you can change the road. As my noble friend Lord Ross of Marnock has said, the word "change" does not appear. The reason is that change is just another word for alter. Presumably, the Lord Advocate did not want to go part of the way towards me by saying that the local authority, in its maintenance and management, should have power to alter a road, so he said "change", which has exactly the same meaning.

On Second Reading, my wish was to take out the wording "without prejudice to this subsection's generality" because I think that this goes in automatically, and, in so many cases, it is meaningless. When you go into all these things that can be done, there is no need for the words "without prejudice to this subsection's generality". I am prepared to bow to the fact that the amendment to take out the words has been rejected, but I think that we accomplish everything that is necessary in giving the powers to the local authority if we just say that they shall, subject to the provisions of this Act, have power to alter any such road". I beg to move.

Lord Mackay of Clashfern

I have given such explanation as I think is appropriate for this. The most doubtful question, I think, that the noble Lord has asked me is in relation to the word "renew". If you are renewing a road, is that an alteration of the road? It would certainly be open to argument whether that was so, because. in effect, if you are renewing it, all that you are doing is putting down what was there before but it is new, and that may be regarded as the same road new.

Lord Hughes

Perhaps I might interrupt the noble and learned Lord. Is he suggesting that, when a local authority renews a road, takes off the surface, lays it aside and goes to all that expense, it then puts it back and tries to make it exactly the same as it was previously? "Renewal" must mean "alteration". It must mean using different materials and so the road must be altered.

Lord Mackay of Clashfern

The noble Lord is anxious to tell me the answer. I am trying to give him my answer but I know that he sees the situation perhaps a little differently from the way in which I do. However, I think he will take it from me that I have had occasion from time to time to involve myself with the detailed consideration of Acts of Parliament in relation to particular cases. I am saying—and this is all I said at the time that he asked me to make way for him—that the most doubtful question that he asked me was whether "renew" would be included in "alter". Of course, I perfectly understand that if one repairs a road one uses new materials to fill in the holes and so on. But it might be very questionable whether a repair of a road was an alteration of a road. So the mere fact. as he said, that one is using new materials necessarily involves one in making an alteration of the road.

"Repair" and "renewal" might not involve what would be properly alteration in the sense that the road, to a person using it, would appear to be different from the road that he used before the repair was made. So I would certainly advise the Committee against restricting the phrase to the word "alter" alone, although I am certainly prepared to consider what has been said on this particular matter.

Lord Hughes

I must come back to this matter again. Once again the noble and learned Lord has brought in a word that does not appear in the Bill. He is saying that "repair" or "renew" would not be covered by "alter". But the Government have not found it necessary to give the authority power to repair a road. I take it that one reason for that is that "repair" could be comprehended in "altering" or "improving". But in dealing with these two amendments he has twice used words which do not find their way into the Bill. He used "change" and he has now used "repair". It seems to me that the more he speaks, the more he justifies the rejection of the earlier amendment to keep in "without prejudice to [the]… generality" and, having accepted that wording, the simpler we keep the later stages the better.

The only point on which the noble and learned Lord impressed me was as regards what he said about "renew". He raised some doubt in my mind as to whether "renewal", in the hands of a skilful lawyer like himself, could be regarded in an argument of court as being the same thing as "altering". Therefore, I shall beg leave to withdraw the amendment if the noble and learned Lord will give me an assurance that he will look at this form of wording, because it seemed to me that it might meet entirely what he said if, instead of having all these words, he brought it down to "alter" or "renew". If he is prepared to give an undertaking to commit himself not necessarily to these words, but to looking at the words again to see if he cannot satisfy himself that less verbiage is necessary to accomplish the object, then I would beg leave to withdraw the amendment.

Lord Mackay of Clashfern

I am extremely happy to give an undertaking of that type. I will examine all that has been said on this matter to see whether we can improve the provisions. I think that I said that before, and if it helps the noble Lord I am perfectly happy to say it again. It would be my intention in any case in a matter of this type and with a Bill of this type to take account of everything that your Lordships say and to see whether we can make use of it to improve the wording of the Bill. I am much obliged to the noble Lord for what he has had to say about it. I shall also take his advice about the more I speak the less it seems to do me good, and so I shall now be silent.

Lord Gray

Before the noble Lord, Lord Hughes, withdraws his amendment. I should like to make two comments. First, the question regarding "repair" is surely covered by "maintenance" at the very beginning of the clause. Secondly, I would say to my noble and learned friend that perhaps when considering this matter he could look at whether the words used adequately cover the powers in Clause 12 concerning the closing and stopping up of roads in so far as they are, in part, apparently vested in local authorities.

Lord Mackay of Clashfern

Yes, certainly I will be happy to do that in the circumstances.

Lord Hughes

I now beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.4 p.m.

Lord Mackay of Clashfern moved Amendment No. 6: Page 1 line 16, at end insert ("or to determine the means by which the public right of passage over it, or over any part of it, may be exercised.").

The noble and learned Lord said: I beg to move Amendment No. 6 and I would like to speak also to Amendments Nos. 22, 69, 70, 126, 145 and 153:

Amendment No. 22: Page 3, line 39, at end insert ("or to determine the means by which the public right of passage over it, or over any part of it, may be exercised").

Amendment No. 69: Page 20, line 37, leave out ("or fences") and insert (", fences or barriers").

Amendment No. 70: Page 20, line 39, leave out paragraph (a) and insert—

  1. (a) between any of the following and any other of the following—
  1. (i) a footway;
  2. (ii) a footpath;
  3. (iii) a cycle track;
  4. (iv) a carriageway,

(aa) along a cycle track so as to segregate classes of users thereof,").

Amendment No. 126: Page 77, line 26, at end insert—

("(4A) A person who parks a motor vehicle ("motor vehicle" having the same meaning as in the Road Traffic Act 1972) wholly or partly on a cycle track commits an offence.").

Amendment No. 145: Page 93, line 18, at end insert—

("(5) The power conferred on a roads authority by section 1(1) or 2(1) of this Act to determine the means of exercise of a public right of passage includes the power to redetermine by order under this subsection such means of exercise.

(6) Subsections (1) and (2) of section 69 of this Act shall apply in relation to an order under subsection (5) above as they apply to an order under section 66 or 67 of this Act.

(7) A local roads authority shall have power to carry out any works necessary for giving effect to an order by them under subsection (5) above; and in so far as the carrying out of any such works, or any change in the use of land resulting from any such order, constitutes development within the meaning of the Town and Country Planning (Scotland) Act 1972, permission for that development shall be deemed granted under Part III of that Act.

Amendment No. 153: Page 107, line 46, at end insert—

(" . Section 120(4A) (parking motor | Level 2. | £50."). vehicle on cycle track).

These are amendments which I think are of particular interest to the cycling fraternity, but which also have the support of the police, the Convention of Scottish Local Authorities, the Countryside Commission for Scotland and the Scottish Rights of Way Society. They have three main aspects: first, to provide a simple means of altering the type of use of a public road; secondly, to enable a roads authority to erect fences or barriers between one type of road and another; and thirdly, to make it an offence to park on a cycle track—all of these being intended to facilitate the creation of special facilities for cyclists.

At the present it is possible to change the use of one type of road to another—for example, a footpath to a cycle track, under the Road Traffic Regulation Act 1967. But this can be, as those of your Lordships who may have been involved in it will know, a complicated procedure which might require more than one order under that Act and may also require planning permission. The amendments provide for the change of use to be effected by a single order under the Bill which will carry deemed planning permission. The proposed order will have to be publicised and, if objections are made and not withdrawn, the Secretary of State will determine whether the order should be confirmed.

Provision is already made in Clause 27 of the Bill to enable road authorities to erect fences at certain dangerous parts of roads but this, as it stands, is not sufficient to allow for the erection of barriers which might be necessary in the interest of safety to separate, for example, cyclists on a cycle track from pedestrians on an adjoining footpath. The amendments now before you Lordships will make provision for that. Anyone who suffers damage through the execution of such works will be entitled to compensation under Clause 112.

Under Clause 120 it is illegal to drive a motor vehicle on a cycle track, and it is a logical extension of that control to make it an offence to park vehicles on such a track. The less serious nature of the parking offence is recognised in the maximum fine which is set at Level 2, which is currently £50. The exemption in Clause 62 for the use of certain vehicles on cycle tracks will apply in this case also. I beg to move the amendments and I hope that they will commend themselves to your Lordships.

Lord Ross of Marnock

So far as I understand the Rules of Order, even in this House one can only move one amendment—one cannot move the whole lot.

Lord Mackay of Clashfern

Yes, I am much obliged to the noble Lord.

Lord Ross of Marnock

I do not accept that we have discussed the amendments that are serialised here by the noble and learned Lord the Lord Advocate. We had no notice of this and I do not agree that they all follow each other. For example, Amendment No. 69, which deals with leaving out "or fences" or something of that nature, has nothing to do with this subject. I do not think that it is in sequence with this amendment at all.

For 10 years we have been preparing for this Bill, and it was only when it was given its Second Reading that we discovered that this important power was not included. Is this necessary? If we did not have this power in Clause 1, would the whole thing fall, so that the Government would not be able to take the powers which have already been taken? They are already in the Bill, quite apart from some of the changes made by the amendments that may add to them. If this amendment had not suddenly appeared, would certain clauses of the Bill have been quite illegal?

Is this a power that someone forgot about that the Government needed?—because it is very different from the road authority having the power to construct roads. It is a different power altogether. Quite frankly, I do not think that it is needed here and it should not be here. If it had been necessary, the civil servants and those who have been looking at the Bill would have included it a long time ago. Is this another case of covering up just in case? So we clutter up the Bill with a few more afterthoughts. As it is an amendment, and a Government amendment, it must be an afterthought. But is it necessary?

I am not entirely happy that it covers Amendments Nos. 22, 69, 70, 126, 145 and 153 concerning parking and erecting barriers. All these are covered in later clauses of the Bill. Indeed, the amendments which the noble and learned Lord the Lord Advocate mentioned that he wishes to take together do not depend at all upon these words going in there. They would still be quite proper and in order. They were in the statute before they were further amended after Second Reading.

I am not happy about this or about what the Government are doing. If the noble and learned Lord has another long list of amendments that are to be discussed together, perhaps he would be good enough to let me have them.

Lord Drumalbyn

I can quite understand the rational attempt to draw together a number of means by which the: public right of passage over any road and "any road" seems to me to be rather curous— or over any part of it may be exercised I can understand the merit of trying to do that. I do not think it would follow that every single item in the Bill would have to be covered other than what is already in Clause 1. There may be "incidental", "miscellaneous", and all the rest, for which it can be quite legitimate to legislate. But the worry is that there may be quite a number of groups of things that are not covered, and it may be necessary to diversify still further subsection (1). That is the worry that occurs to me on this matter.

Lord Mackay of Clashfern

I have sought to explain that the idea of putting this power in Clause 1 is to facilitate the alteration of the type of use of a public road with cyclists and the alterations in order to provide for them, very much in mind. It seems an appropriate place in which this particular power should be given. The mechanisms under which the power can be exercised, of course, are subject to later controls. I mentioned Amendment No. 145, which deals with that in particular.

Lord Carmichael of Kelvingrove

I should like to raise a very small point. I was under the impression that the noble and learned Lord the Lord Advocate had the power to classify roads—special roads, side roads or local roads—and that that power was already contained in legislation. Why is additional power required if that power already exists, or is this an attempt to specify a number of certain types of operations which can be performed on roads, such as cycle tracks? Therefore, is he not in danger of omitting something which we tried to discuss earlier on the question of generalities? If the noble and learned Lord has listed so many items, would he not be inclined to miss out some other things? Would it not be better merely to retain to himself and local authorities the power to classify roads?

Lord Mackay of Clashfern

On the particular matter of Amendment No. 6, the specific point I want to add by way of this amendment is:

to determine the means by which the public right of passage over it"— that is, the road— or over any part of it, may be exercised". The idea behind that is to make it possible to construct a road and to maintain a road for a particular type of public right of passage and, after the road is possibly in use, for example, to restrict a footpath so that under these powers it becomes a cycle track.

We have to try to envisage what will be required and we have endeavoured to provide what is required. I do not think anyone can claim that nothing will ever happen that we have not foreseen, but we have done our best to foresee what will be required in order to give the cycling community the kind of facilities that I believe noble Lords think they should have.

Lord Ross of Marnock

As the President of the Ayrshire and Dumfriesshire Cycling Association, I have every sympathy with anything that will assist cyclists in getting around Scotland, and in particular around Ayrshire and Galloway. However, to return to the point: am I to understand that, in this monumental piece of legislation that has taken over 10 years to prepare, the Government suddenly discovered, after they had published the Bill and after its Second Reading, that they did not have this power?—because that is what is meant by this amendment. We are adding this to Clause 1.

Alternatively, am I right in thinking that it is already in the Bill somewhere, but that perhaps the noble and learned Lord the Lord Advocate has had a belated look at it and is beginning to wonder whether it is legal to put it elsewhere without having this power in Clause 1. It comes back to the point I made originally. It is an awful mess of a Bill which gives people power to execise the legs, be it by walking, on cycles, by car or by invalid chair. This is the generality of all this. It does not just say "cycle tracks" here; it does not mention cycles. I am perfectly sure that it is not for that particular purpose anyway.

I think that the noble and learned Lord the Lord Advocate should come clean with the Committee and tell us whether this is something they forgot to include, that it is something they have put in, and that it is something which, if it is not included, robs certain provisions which are already in the Bill of any legal standing. The power has not been put into the general powers in Clause 1, which relates to the making of roads, the constructing of roads, the reconstructing, the widening and the altering of roads, but which has nothing to do with the actual use of roads. It is a very fundamental change that is being made.

I cannot conceive that the Scottish Office produced this Bill and did not have this fundamentally necessary power right away in Clause 1 until someone came along and said "Let us have it now". We have not been given that explanation. If it was left out, let the noble and learned Lord say that it was left out. We are a very forgiving Committee in respect of the weaknesses, in particular, of lawyers.

In the old Scottish Grand Committee, of which every Scottish Member of Parliament was automatically a member—and from 1946 until about 1962 every Scottish Bill went to that Committee—we used to call for the Lord Advocate or the Solicitor-General, if he was in the House, when we were in difficulties. As often as not an hour after we had called for him we wished he had not been there, because not until they got going were we really confused. I think that this is really a matter for a lay Minister, not for a Lord Advocate or a Solicitor-General.

7.20 p.m.

Lord Mackay of Clashfern

I am grateful to the noble Lord for his frankness. It has not been my experience generally that when I have been invited to give my views I have confused the people who have asked me to give them; but one is always learning as one goes on, and of course it may depend to some extent on the person to whom the views are being communicated.

Lord Ross of Marnock

And who is the Lord Advocate.

Lord Mackay of Clashfern

Indeed, but I am talking about myself on this particular occasion. So far as the occasions to which the noble Lord's history relates, of course I am not in a position to throw any light upon them, because I did not have the privilege of being present to hear what was going on. Anyhow, I hope that the experience will not he repeated tonight that he had then.

So far as the question is concerned, I thought that I had explained orginally, in speaking to this amendment along with others, that there is a power in the Road Traffic Regulation Act 1967 to change the use of roads, but that it is a complicated power. When we were considering what we should do to make provision for cycle tracks, which was a matter for cyclists generally and one which was under consideration but which had not been brought to full fruition at the time the Bill was prepared, we thought that this was a power which would be suitable to be put in the Bill and which would facilitate the creation, for example, of cycle tracks. For that reason this power is here as a simpler way of achieving the result than would be possible under the Road Traffic Regulation Act 1967. I thought I had explained that.

So far as I am concerned I am not hiding anything, or failing to disclose anything. I am not conscious of anything of that kind, and the idea that I am not coming clean with the Committee is one which I do not find particularly attractive. It is the last thing, or certainly one of the last things, I should like to be guilty of.

Lord Ross of Marnock

If this has only to do with cycle tracks, then why not limit it to cycle tracks? Why not say that? Or have there been other complications about changing the use of other roads in some way? We have clause after clause to come in respect of change of use of roads. So far as I could gather, they did not require this particular power here, which is a new power. We take new powers all through this Bill, or the Secretary of State does, and we are going to accord them to him. In relation to cycle tracks, could it not be done elsewhere much more simply, without raising it as a major point of principle in Clause 1? That is the most important part of the clause where all the other powers would seem to come. That is why I ask him why it is not limited to cycle tracks, and is it necessary in respect of things other than cycle tracks? Or do they not know? Is it "just in case", so that they take a generalised power, which they can justify only in relation to some experience where it has not stopped in relation to cycle tracks?

It has not stopped local authorities or, for that matter, the Secretary of State, from creating cycle tracks along trunk roads. They are there. I am not entirely satisfied about this matter and I do not like the list of amendments to which the Lord Advocate applies it. However, we shall come to them in turn. I hope it will be noted that we have not had a full discussion on these various amendments which are mentioned. We have had only the one moved, and the one to which I am certainly prepared to agree. I would he the last to deny the Ayrshire and Dumfriesshire Cycling Association of the Scottish Cycling Union some benefits which they might get from the Roads (Scotland) Bill 1983.

Lord Hughes

I have no connection with any cycling clubs or any vested interest to declare. I ask a question here. I am not seeking to pick holes in the language of the amendment on this occasion but seeking to get information. The amendment reads: or to determine the means by which the public right of passage over it, or over any part of it, may be exercised. When the Lord Advocate was talking about cycle tracks, he indicated that it related not only to what could be used on the road but what could not be used. It was to be restricted to that particular way. Does this wording give the authority the necessary power to restrict as well as use? Because when you tell somebody that he cannot do something, he is not exercising anything. It is a genuine query. If the amendment gives a power to restrict, could it by any stretch of imagination—and my own feeling is that it would be a wide stretch of imagination—be used by a local authority to say, "We will not allow public processions in this street. This is not the type of right of passage that we would allow."?

Lord Mackay of Clashfern

The wording of the amendment is: to determine the means by which the public right of passage over it, or over any part of it, may be exercised.". The idea in mind there is that one exercises a public right of passage on foot, by cycle, by motor vehicle, or possibly by horse-drawn vehicle, or something of that kind; the means by which the right of passage is exercised may be determined. In other words, the roads authority may say that the only means by which the public may have a right of passage along this particular stretch of road is by cycle, or by foot, or by vehicle, or by vehicle and cycle, or something like that, or by invalid carriage, or whatever particular means they want to determine. The determination would say what the means were, and that could be exhaustive of the means. In other words, it could say "only by cycle" for example.

On Question, Amendment agreed to.

The Earl of Swinton

I think that this might be a convenient moment to adjourn the Committee stage of this particular Bill. I suggest to your Lordships that we do not return to this particular Committee stage before half past eight. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.