HL Deb 20 December 1983 vol 446 cc679-96

8.54 p.m.

Committee stage resumed on Clause 1.

Lord Ross of Marnock moved Amendment No. 7: Page 1, line 18, leave out ("prepared by the local roads authority")

The noble Lord said: I am sure that this amendment will commend itself to the Government and that they will be prepared to accept it without any further explanation from me. I beg to move.

Lord Mackay of Clashfern

My Lords, the words which this amendment seeks to remove distinguish between one local roads authority's list and another's as well as between the list prepared by a local roads authority and that prepared, under Clause 2, by the Secretary of State. In my view—and I commend this view to the Committee—the words are necessary to the interpretation of the clause and should remain. I hope that the noble Lord will feel able to accept that point of view.

Lord Ross of Marnock

No, I am afraid that I cannot accept that point of view. When we dealt with other amendments to Clause 1 we were told that if the list of public roads was mentioned there would be no need to keep mentioning it again. It is being mentioned here for the first time; "the list of public roads". It could be prepared only by the local roads authority; it could not be prepared by anybody else. The words that I wish to leave out are unnecessary. I do not think that the confusion which the Lord Advocate says would arise if they were left out does arise, so I stick to my point. The words are unnecessary.

On Question, amendment negatived.

Lord Ross of Marnock moved Amendment no. 8: Page 1, line 22, leave out from ("control") to end of sub section (2).

The noble Lord said: I am really asking for information. The amendment is to, leave out from ('control') to end of subsection (2)". The subsection reads: in a list of the roads, highways and bridges under their management and control under section 41 of the Roads and Bridges (Scotland) Act 1878". Do we really need the latter words? After all, we are to repeal that Act. It is interesting that an Act is referred to in Clause 1 when, as far as I can understand from the following clauses, that Act is to be repealed. It is not to be reprinted. It will become a matter of history, and not a matter for reference. What is the point of those words? It is not my idea of modernising and codifying the law, to refer in a Bill to an Act when that Act is to be wiped out by the very same Bill. I beg to move.

Lord Mackay of Clashfern

When this Bill comes into effect the provisions of Clause 1(1) will come into effect, and there is a provision there for a list to be prepared. Clause 1(2) is stating what is to be in the first list, and what is to be in the first list is what is in the existing lists. The existing lists are prepared under the statutes which are to be repealed on this statute coming into operation. There are more of them than just the Roads and Bridges (Scotland) Act. Your Lordships will see that the register of streets under Section 5 of the Burgh Police (Scotland) Act is also taken in.

Basically, this part of the clause is joining the new administration to the old. One has to say what is to be in the first list under the new system. One takes the existing lists, which are prepared of necessity under statutes which no longer will apply but which exist at the present moment and are the authority for the lists which the local roads authority will have at the beginning. Of course, it is the local highway authority at the time of the changeover.

Lord Ross of Marnock

The local roads authority will still be there. It will still have its lists, and the lists will be legal. Clause 1(1) states: all such roads in their area as are for the time being entered in a list". We admit the other list is there. It is not mentioned there as to how that list is to be drawn up. Frankly, I do not think that references to, under section 41 of the Roads and Bridges (Scotland) Act", which is to be repealed, or, section 5 of the Burgh Police (Scotland) Act … or any corresponding local enactment", which will probably also be wiped out, are relevant. We are starting afresh. We start with lists that are there. Local authorities have them—highway authorities, as we may no longer be allowed to call them. We say so in subsection (1). It is a pointless exercise referring to Section 41 of the Roads and Bridges (Scotland) Act 1878 when, later in the same Bill, we repeal what is left of it. Frankly, I do not agree with the reasoning of the Lord Advocate.

Lord Hughes

I wonder how many of the officials responsible in regional authorities for the maintenance of this list realise that it has been kept in conformity with the conditions of an Act of 1878, or how many of them, none of whom could have been born at the time, even know that there was such an Act of Parliament.

Lord Mackay of Clashfern

The noble Lord, Lord Hughes, is, with respect, doing something of an injustice to those officials, because the statutory authority under which they keep the list is the Act of 1878 so far as roads and bridges are concerned and the Burgh Police (Scotland) Act so far as streets are concerned. That is the authority under which they keep the list. I should expect that the officials, who are familiar with the work, would know exactly what the statutory authority was for that particular function.

Lord Hughes

I am afraid that my experience of local authority officials over the years is closer than that of the noble and learned Lord. I am certain that they know what their duty is. However, I doubt whether they know the Act of Parliament that requires them to do it.

Lord Ross of Marnock

Not only that, but may I say to my noble friend Lord Hughes that many roads are kept under the authority, not of Section 41 of the Roads and Bridges (Scotland) Act 1878, but other Acts of Parliament. They may have been added to it over quite a long time. I can remember one or two myself when I served on distinguished committees relating to Scottish legislation. I can remember the committee on private roads that enabled private roads to become public roads and thereafter to be entered on the list as public roads. This is not comprehensive. I say again that it has no real value when we accept them under the first part of Clause 1, saying that these lists of public roads are there, and we give them a new authority under Clause 1(1). We do not require this ancient authority of 1878, imperfect as it is, to give it further authority. The Lord Advocate should make up his mind whether the Government are going to modernise the law or not. One does not modernise the law by cluttering it with statutes that will not be printed or available to anyone.

On Question, amendment negatived.

Lord Ross of Marnock moved Amendment No. 9: Page 2, line 3, leave out ("free of charge").

The noble Lord said: This is a simple amendment to leave out the words "free of charge". If we do not put in a charge there is no authority to charge, so the lists are free of charge. If, however, you put in "free of charge", one day, no doubt, the Prime Minister will see it and say that this must come out and that you must charge for all these things or at least pay a nominal fee to examine and inspect the list. I ask the Lord Advocate what would be the effect of leaving out "free of charge". An inspection would still be free of charge because there is no authority here for a charge to be made. Indeed, if a charge was to be made it would require legislation to give effect to it, as is done in many other Acts, including the Civic Government (Scotland) Act under which we allow people to inspect certain things and put in a charge for it. If we do not put in a charge, inspection is free of charge. Let us therefore leave out the unnecessary words "free of charge". I hope that my reasoning for the amendment will be accepted by the Lord Advocate.

Lord Mackay of Clashfern

The reason for putting in the words "free of charge" is to make it absolutely plain on the face of the Act that this is the position. If the words were left out, the result might well be that there would be no authority to charge, but one would have to reach that conclusion by that reasoning, whereas when the face of the Bill says "free of charge" the ordinary person, not familiar with all the principles of statutory construction, will see plainly that this is the position. That is why the words are there.

Lord Ross of Marnock

I suggest that the Lord Advocate looks up other Scottish statutes—those, for instance, in relation to voters' rolls being made available for inspection. They do not say "free of charge". Yet inspection is free of charge. Unless a charge is there, it is free of charge. There is no point in putting in the words "free of charge". And it may alert someone to suggest that we are going to draw up this list and have it made available and if someone is getting them for the person who is inquiring we are entitled to make a charge. It would be far better to leave the words out. They are not necessary and they put ideas into people's minds.

The Deputy Chairman of Committees (Lord Alport)

The Question is that Amendment No. 9 be agreed to. As many as are of that opinion will say, Content?… To the contrary, Not-Content?… The Contents have it.

Amendment No. 10—Lord Mackay of Clashfern.

Lord Drumalbyn

May we go back to the Question again? I think I heard the Lord Chairman determine that the Contents had it.

The Deputy Chairman of Committees

If I did so, it was an error of judgment on my part. The Not-Contents have it. Thank you very much.

Amendment negatived.

Lord Mackay of Clashfern moved Amendment No. 10: Page 2, line 6, after ("may") insert (", subject to the provisions of this Act,").

The noble and learned Lord said: This is a minor drafting amendment to ensure that a local roads authority could only enter in its list of public roads a road for which it would be rightly responsible. It would be inconsistent with the rest of the Bill if a local roads authority were even by accident to assume management of, say, a trunk road merely by entering it in their lists of public roads. I beg to move.

Lord Ross of Marnock

I think that the words are unnecessary. I am surprised that the noble and learned Lord the Lord Advocate is falling into the trap of accepting everything that the draftsmen say. There was never any difficulty about this. The list of public roads are those for which the local authority have responsibility—it goes without saying. Therefore, we do not need to reinsert it. This is the type of thing that we have all through the Bill, which to my mind is an absolute nonsense.

I am surprised that a man—I am not going to call him reasonable because we have had too much reasonability about somebody else tonight, and it was unjustified because he proved to be very unreasonable indeed—a sensible man, and a man who prides himself on his knowledge of the law, has accepted this. If we start with the words, "The list of public roads" they in themselves, by the definition we already have, are the roads for which the local authority are responsible. We do not need those words again.

Who talked the Lord Advocate into this one? He is slipping in my estimation. I used to have a very, very high regard for the noble and learned Lord, Lord Mackay of Clashfern. He is not as good as he was. He has been far too long away from Scottish legislation. He is not as sharp as he was. He is swallowing all the bait that is handed out by these draftsmen who want to be so sure of everything that they make the legislation almost unintelligible. I hope that he will think about this again. He has plenty of time now. We are not going to take the Report stage on the day after we come back from the recess. He has time to think about it long before we get to the Report stage. I am perfectly sure that he will come hack and say that on second thoughts or even third thoughts, "You are quite right about this. It is quite unnecessary". Why clutter up the Scottish statute book when we are seeking to modernise it?

Viscount Hanworth

I am really rather surprised. Normally in this House we say that Acts are not clear because they do not say precisely what they mean in terms which are intelligible to the layman. We are always told that to do so means redundancy. Having listened to the arguments, at last it seems to me that here we have a Bill that does say what it means. It may be redundant, but should we not applaud this just for once instead of carping from the Opposition Benches on this particular point?

Lord Mackay of Clashfern

I renew my Motion that this amendment be agreed to.

On Question, amendment agreed to.

9.11 p.m.

Lord Hughes moved Amendment No. 11: Page 2, line 11, leave out ("or abutting")

The noble Lord said: I beg to move Amendment No. 11 and I would also like to direct your Lordships' attention to Amendments Nos. 53 and 134:

Amendment No. 53: Page 14, line 39, leave out subsection (8).

Amendment No. 134: Page 90, line 7, at end insert— (" " frontager" in relation to a road means the owner of any lands and heritages fronting or abutting or comprehended in that road;").

All of these amendments bear broadly on the same aspect. The words that I propose to delete in Amendment No. 11 appear on page 2, line 11. I shall read the beginning of the paragraph which says: give notice thereof to the owners of all lands and heritages fronting or abutting the road". Anyone in the building profession or anybody who has bought or sold a house, or indeed any lawyer who has acted for them, will be familiar with the term "frontager". That is a term which appears later in the Bill. In fact, Amendment No. 53 is to leave out a subsection in Clause 13 which defines "frontager". The interesting point is that the definition of "frontager" is somebody who owns: any lands and heritages fronting or abutting that road". As I have said, the term "frontager" is well known to people in Scotland and therefore "fronting" is quite natural. But one has certainly never heard of an "abuttager" because when we are dealing with property which abuts it is covered by the term "frontager".

So it seems to me that, in this first reference, it would be perfectly satisfactory just to talk about "fronting". As "fronting" is at present not defined anywhere in the Bill whereas "frontager" is defined but just says that it is one whose lands and heritages front or abut the property, it really does not take us very much further. Later in the Bill there is reference to "fronting" or "abutting" or "being comprehended in". I had the advantage of an informal discussion with the Lord Advocate before we went to dinner, and he said that "being comprehended in" covered a different subject—it was dealing not with an exisitng road but with a road which was yet to be built or constructed and. therefore, one does not know just exactly what is going to be covered by it. So this wider term was used there.

In the village in which I live there are quite a number of houses which neither front nor abut a road but which have entry to a property behind, perhaps from a narrow close or from a wider pend, so that their only contact with the road is this small entry. They neither front not abut. I am quite certain that in this village the roads have been taken over; and it happens that the pavements are also made, so no liability is likely to fall on any of these people because it is now the local authority's responsibility.

However, there are many cases where a road has been made and taken over by the authority but where the pavement (or, as we now have to call it, the footway) has not been constructed, and at some time the local authority can call on the frontagers to make it good. Generally what happens is that the local authority does the work itself and then levies the charge on the frontagers, but it can only levy on those who actually front the road. In these circumstances I think it is quite wrong that the people behind, who have the use of the road and who have the use of the pavement in the same way as those who actually front it, should not have any liability.

In a more modern context, we all know in how many of our communities houses with very large gardens have disposed of part of their garden on which another house has been built. In one case I can think of in Broughty Ferry, a family sold the large mansion in which they had lived for many years and built a smaller house at the end of the garden for their occupation. The access to that is only by right of way through the grounds of the original house. Although I admit that almost certainly the disposition of the land will include an obligation to pay a share of any charges which might fall on the frontager, that suffers from the drawback that if the second party declines to pay the frontager can only get his money back by going to court.

It seems to me that if, in fact we are seeking to modernise the legislation in relation to roads, we ought to take account of the fact that there will be much more of this, that there will be many people who realise that, because of the increased values of land, half of their garden is probably worth more than the whole house and garden was ever contemplated to be worth. So we shall have more of it. I do not think it is right that, when we have the opportunity to legislate to take care of a situation like this, we should neglect it on the basis that people have a remedy by litigating, if that should prove to be necessary.

The three amendments to which I speak have the effect of referring to "frontaging" and "frontagers", and they seek to define what "fronting" and "frontager" mean. I mentioned earlier that "frontager" is defined in the Bill in Clause 13. At the botton of page 14 of the Bill, in Clause 13, it says: (8) In this section 'frontager', in relation to a road, means the owner of any lands and heritages fronting or abutting that road. Then we go on to Clause 15. These are the only references that I have found in the time, but there may be others. Clause 15(2) says: In subsection (1) 'above—frontager'was the same meaning as in section 13 of this Act". My amendments take out these two definitions of "frontager" in Clauses 13 and 15 and, instead, substitute the most wide-ranging definition of "frontager" in the interpretation clause, which seems to me to be the right place to have it and the easiest place to look for it if you want a definition of "frontager". In the time available I have not been able to come up with what would be a reasonable definition of "fronting". However, I think it would also be reasonable to define that to make certain that it took care of abutting or any other way in which there could be a possible liability for any part of road charges.

When we were discussing in the corridor—and I am not quite certain how legitimate it is to mention this here—the noble and learned Lord the Lord Advocate said something to me which I thought was very reasonable. He said that in a Bill of this kind it is very difficult to draft across the Floor in Committee. I have made a number of suggestions here which I put forward as no more than a basis for consideration. I do not ask the noble and learned Lord the Lord Advocate to agree to these amendments tonight, but in better time than perhaps has been available since I tabled these amendments, because it was only a few days ago—and I accept the difficulty of doing this in Committee—I ask him to undertake to have a look at them and perhaps contact me before the next stage of the Bill so that he can let me know whether he proposes to take any further action on the Bill, or whether it is necessary for me to put down amendments again at Report stage. I hope that in this at least conciliatory way of approaching the matter at this hour that my noble friends Lord Ross of Marnock and Lord Carmichael will go with me in practically withdrawing the amendments before I have finished moving them. I beg to move.

9.21 p.m.

Lord Mackay of Clashfern

I am extremely grateful to the noble Lord, Lord Hughes, for the way in which he has approached this matter. I certainly accept that the problems of drafting and how best to express matters as complicated as the fundamental concepts we are dealing with here are matters that require time, and it is useful to have the kind of exchange that we have just had. So far as the Amendment No. 11 is concerned the reason for having the word "abutting" in is that it takes account of situations in which a property could not be said to have its front on a street because it is a much shorter boundary that is to the street than perhaps the other boundaries of the property. You might say that it is end on to the road or street. That is the reason for abutting, and fronting or abutting in that form has been in our legislation for quite a long time. The frontagers are those whose property fronts or abuts in this sense. That is all I have to say about Amendment No. 11.

In view of the fact that the noble Lord mentioned the other problems may I say a word about them. The existence of the word "abut" in this kind of clause takes account of a good number of the problems that the noble Lord raised where somebody has the ownership of a lane, say, that goes down to the street or road, because such a lane would cause his property, if he owns that lane, to abut on the road. Therefore, he would be caught.

The situation is perhaps a bit more difficult where someone is set far back from the road and all he has is a right of way to the road with no property fronting, or abutting, on the road at all. That is the problem that the noble Lord mentioned to me earlier, and it is difficult to see where you draw the line in that. Does a person who has only a right of way to a road have responsibility? So far the legislation, and this Bill also, draws the line at owning property to any extent with a common boundary with the road. However short the boundary is, so long as it is a boundary on the road that would be good enough. The noble Lord wishes to have me consider whether we could go further, and I am certainly content to do that. I hope that with that explanation the noble Lord will feel able to withdraw the amendment.

Lord Ross of Marnock

There are many properties that both abut and front a road. If the road winds right around it both abuts and fronts. Of course, it is expensive if it happens to be a private road which is going to be made up. They have a double charge because they both abut and front a road. I am prepared to go along with my noble friend who has studied this deeply, and he has now got the Lord Advocate embroiled in a further study in depth of this important subject.

Lord Hughes

When I was seeking to take "abutting" out it was not because I did not realise that there were circumstances when you could not properly say that a property fronted. The place which immediately springs to mind from my local knowledge is Arbroath, where it is common for the gable end to be that which is on the street and the front of the house, sensibly, faces not a fairly uninteresting road but looks into the home garden. The way I looked at it was that if "frontager" could be defined as meaning one whose property either fronted or abutted, it seemed to me that it would be quite reasonable in the same sort of light to talk about fronting and then define it as including fronting, abutting, or, I would hope, the other. It has not been done in the past. But the dividing up of large gardens has become fairly common, and as land becomes more and more expensive, will almost certainly continue to be a feature for a number of years ahead. As we are seeking to modernise the circumstances, it would be better to have equity.

Later I have an amendment in connection with the apportionment of charges. In another part, the Bill contemplates different ways of apportioning by a local authority; perhaps by the length of frontage or by reference to the rateable value. On that basis, if the others were brought in and there were no definition of "apportionment", somebody might find that his share was related to 35 feet of frontage, yet the man who had an equally good house behind him and had all the same benefits of the use of the road once it was constructed, had only 3 feet to pay for because that was the width of his entry. There is no equity in that.

When, as in this case, we are bringing the law up to date as well as consolidating it, we should try to take account of these circumstances, if it is possible. If at the end of the day the Lord Advocate says that, with the combined wit of himself and the draftsmen, they cannot find any way of putting it in to words, I should have to submit to that. But I should be very disappointed at such a confession of failure. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.27 p.m.

Lord Ross of Marnock moved Amendment No. 12: Page 2, line 14, leave out ("their") and insert ("the")

The noble Lord said: I hate to say it, but we might be on the verge of a momentous occasion where the Government have to accept an amendment. It is my purpose and my hope that I shall be able to present that to them.

Page 2, line 14, leave out ("their") and insert ("the")—t-h-e—let us not quarrel about spelling. I can always remember the Scotsman who came down to plead to a commission about a water scheme, and in Scotland they pronounce it "watter". The English man who was in charge said "How do you spell water?". He said, "With two t's and we spell 'mainners' with twa n's".

The fact is that if the local authority are to add a private road to a list of public roads or delete a public road from the list, they have to do certain things. One is to advertise their intentions in at least one newspaper circulating in their area. I suggest that "their area" is far too wide. It should be "the area"; in other words, the area where the road is.

This takes us back to what the local road authority may be. There is one local road authority that stretches from Oban to Ballantrae and skirts round to Beattock. I will not mention all the other islands comprehended within Strathclyde. There are many newspapers in "their area", but if one wants to apprise the people of the district about what is happening to a public road which will be deleted from the list, or a private road that will be added, surely the people most concerned are the people in that area.

It is because the regions are the road authorities and they stretch so far that this obligation could be legally met without a single person in the area concerned knowing anything at all about it. One meets that point by scrubbing "t-h-e-i-r" and putting in "t-h-e—whether it is pronounced "ther" or "thee".

Lord Stodart of Leaston

I should like to support this in connection with an smaller area; namely, Lothian. Under this drafting, it would be perfectly proper for the road authority for the region to advertise in the Scotsman a road which is out in the Dunbar area of the East Lothian District. I am sure it would be right to see that it was advertised in the local paper, the East Lothian Courier, and, if it is so wished, in the Scotsman as well. I certainly see all the town and country planning matters that interest me in the local paper rather than in the Scotsman. I support the noble Lord.

Lord Mackay of Clashfern

I am prepared to accept this amendment.

On Question, amendment agreed to.

9.32 p.m.

Lord Hughes moved Amendment No. 13: Page 2, line 15, after ("which") insert ("is made").

The noble Lord said: I hope that I am giving the noble and learned Lord the Lord Advocate, with Amendments Nos. 13 and 15, the opportunity of showing the same degree of magnanimity as he has just displayed. On page 2, lines 15, 16 and 17 read: and shall consider any representation which, within 28 days after the requirements of paragraphs (a) and(b) above have been fulfilled, is made".

If that is a translation from the German, it would be perfectly satisfactory to finish with the verb. But who, when either writing a letter or making conversation, would finish three such lines by putting the words "is made" at the end? The effect of my amendment is to make the lines read: and shall consider any representation which is made within 28 days after the requirements of paragraphs (a) and (b) above have been fulfilled".

It does not alter the decision in any way, but I think it puts it in, if not necessarily better English, more modern, everyday English. I beg to move.

Lord Mackay of Clashfern

I certainly accept that the words "is made" come in what might be regarded as an unusual place. But the problem is that if one puts them in the more usual place, which is the place the noble Lord suggests in his amendment, it is difficult to he certain that the "within 28 days" affects the "is made" rather than the consideration. As amended, it says that they shall consider any representation which is made within 28 days". The way that the noble Lord has put the words "is made" in that position leaves it open to a good deal of doubt whether the "within 28 days" refers to the consideration or to the time within which representation has to be made. It is to make certain that the time, the 28 days, applies to the making of the representation rather than to the consideration of it that has led us to put it in this way.

I accept that the wording is a little unusual, but I have explained the purpose of it. I think that the amendment which the noble Lord has suggested does not quite deal with that point. I am happy to consider whether there is some better way of coping with the matter, but so far the amendment which has been proposed does not appear to me, with respect, to meet the point exactly.

Lord Hughes

I must say that my first reaction is that the noble and learned Lord the Lord Advocate has accepted this stretching of "draftsmanese" to the very limit. Quite honestly, I do not see how anybody could possibly take the view that the "is made" in the position I have put it has any reference other than to the representation. However, the noble and learned Lord has said that he will consider it. I do not think that we should legislate in a type of English which nobody would dream of using in everyday life, if it is possible to do otherwise. I think that what the noble and learned Lord has said is very thin indeed, but, as he has said he is prepared to consider the matter further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 14: Page 2, line 15, after ("28") insert ("full").

The noble Lord said: I beg to move this Amendment: page 2, line 15, after ("28") insert ("full"). Why do I suggest that? Because we have an interpretation clause, and that defines "day", and a day is a clear day. I can appreciate many uses of the phrase "clear day", whether it he in a popular song or a rhyme that we used to learn to know how many days there are in the various months, for instance: …which has but 28 days clear and 29 in each Leap Year. I think most people talk about a clear day as being a rather fine day in which you can see fairly well ahead.

If we leave this clause as it is, we have to take the definition of "day" as it is in Clause 143. By the way, I have an amendment down to wipe that whole thing out. What I am suggesting, however, is that it is really worrying the Lord Advocate; and if it is worrying him and also the whole legal fraternity in Scotland and if it is worrying the draftsmen, as it certainly seems to be, the one thing we do not want is to put in a word as vague as "clear". The provision does not apply if it is raining. I suppose, or if it is misty or snowing: it has to be a clear day. "A day clear" might have a different meaning, but that is not what the interpretation says. So I suggest that we have "a full day", and that would get the Scottish Office out of a difficulty that they have got themselves into by feeling that they had to define "day" and defining it as "a clear day". It is most unsatisfactory as it is, and once again I am helping out the noble and learned Lord the Lord Advocate. He accepted my reasoning the last time. He can now do the same thing: make it two in a row. I challenge him. I beg to move.

Lord Mackay of Clashfern

I am sorry to disappoint the noble Lord quite so early hut there may be other times yet. The situation really, so far as I am concerned, is this. I should think it unlikely that anyone coming to this Bill would think that "clear", used in the interpretation clause, had the meaning which the noble Lord has assigned to it. I think such a person would understand it in some other way—as sunny, or not raining, or whatever. The phrase "clear days" has been used in statutory definitions to have the same sense as full days, whole days, for some considerable time: as long ago as 1809, to go back, and as modern as 1975, to come forward. So I think that the phrase "clear days" is one which has stood the test of time. The meaning, in my submission, is reasonably clear. I hope that in the light of that explanation the noble Lord may feel able to withdraw this amendment.

Lord Ross of Marnock

I will not carry the argument on, but the fact of the matter is that there is more than one meaning and it may be clear to some people but it is not clear to others. It was once again interesting to note that the Lord Advocate, in his explanation, said "complete day" or "whole day". If that is what it means, why not put it in? If that is the way you talk when you want to explain this as a "whole day", then put in in like that and do not put in "clear day", which for many people will have an entirely different meaning. However, I will not continue the argument now because the noble and learned Lord has got plenty of nice clear days and maybe some thick nights coming along over the next day, or fortnight or so, and I know he will be contemplating nothing but the future of this Bill. Therefore I am prepared to withdraw the amendment for the moment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15not moved.]

The Deputy Chairman of Committees (Lord Alport)

I must advise your Lordships that, if Amendment No. 16 is agreed to, I shall not be able to call Amendment No. 17.

Lord Ross of Marnock moved Amendment No. 16: Page 2, line 25, leave out subsection (5).

The noble Lord said: I beg to move this amendment, though there is not much danger of the noble and learned Lord the Lord Advocate accepting it. It is far too complicated for a simple Scottish lawyer. Subsection (5) begins with the words, "The requisite number of persons". It almost presupposes that we knew something about the number of persons before, but this is the first mention of it. Then we read on and discover that, eventually, we have to go to subsection (9) to find out what it is all about. With all due respect, if we are modernising and clarifying the statute, let us have something much more clear.

What the Government want to do is to give a right of appeal to certain people. This is something which is already in a celebrated Act which I have already mentioned. I was involved in the Committee stage, although I was not responsible for it. I am not sure whether it started life as a Private Member's Bill. It is the one on which Emrys Hughes spoke for at least two days, because he was slightly troubled about the Marquess of Bute getting some advantage from that Bill. But I had better not say any more, because the noble Marquess is a friend of mine and he is my chairman on the Scottish National Trust.

But the point is that the Government want to give a right of appeal to certain people when a road is to be taken over or deleted. They do not want to give it to any single person; they want to give it to a number of people. Would it not be better to state, first, the right and, then, what is the requisite number? Do not just mention the requisite number so that you are wondering what it is all about, and so that even when you have read the whole subsection you still do not know what the requisite number is. You must go to subsection (9), which defines the requisite number.

Whatever else is wrong with this Bill, subsections (5) and (9) should be together, and I do not think it is well drafted to begin with mention of a requisite number when it is a completely new subject which nobody knows anything about. It is simple English to say what is the requisite number. We have never heard of a number before. The Bill should state what is the right of appeal, and should then state that it can be exercised only when there is a certain number of people. The people should then be defined in one subsection and they are the majority of the people concerned, or the people who are in a majority in relation to the payment of rates—the frontagers, the abutters and so on. That would certainly be understood.

But there is no justification—I hope that the noble and learned Lord will not defend this subsection too determinedly—for having subsections (5) and (6), then going on to something entirely different in subsections (6), (7) and (8) and, finally, coming back to the requisite number in subsection (9). That is not good drafting, it is not good legislation and I earnestly appeal to the Lord Advocate—although we have had some fun and some lightness—to believe me when I say that I am not feeling light about this amendment. This is extremely bad drafting and it should not be allowed to remain. If the noble and learned Lord does not like making up his mind across the Committee in a question and answer session, I can only ask: how else can we do it? We saw this Bill for the first time only a fortnight or so ago. We have been given no opportunity to contribute anything to the Bill. The noble and learned Lord the Lord Advocate will surely agree with me that this ought to have been dealt with by a committee. It ought not to have been brought to us "cold", like this, without anybody having looked at it. It has lain about for so long that even the civil servants do not seem to have looked at it until after its Second Reading. That is one of the reasons why so many amendments have been put down by the Government to this ancient Bill. I beg to move.

Lord Mackay of Clashfern

I understand that the noble Lord does not wish to delete the right of appeal?

Lord Ross of Marnock


Lord Mackay of Clashfern

He wishes to change the way in which it is expressed. Clause 5 sets out the right. It cannot be explained all at once; therefore we have to put in something which refers to the number. However, I concede that it might be an improvement to put subsection (9) after subsection (5), which would necessitate the renumbering of the subsections. I am happy to consider that suggestion. It is not covered exactly by either of the two amendments, but I am happy to consider it for the next stage of the Bill.

Lord Ross of Marnock

I do not wish to deny the right of appeal which is contained in the present statute. This is a bad compilation and bringing together of what is contained in the statute. I believe that one should state the right of appeal and thereafter the requisite number of owners of the heritages and the limitation which, under subsection (9), should follow. Subsections (5) and (9) should be together. They should not be separated in this way. It does not make sense.

I am grateful to the noble and learned Lord the Lord Advocate for what he has said. We are trying to be helpful and to make some sense out of the Bill, but there is a limit to what we can do. If the Lord Advocate believes that it is unfair on him to have to do it across the Floor of the Committee, all I can say is that we are using the only avenue which is available to us to approach him. I am grateful to him, as I have already indicated, for what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.48 p.m.

Lord Hughes moved Amendment No. 17: Page 2, line 30, leave out from ("to") to end of line 32 and insert ("give effect to his decision")

The noble Lord said: Amendment No. 17 would not have been possible, as the Deputy Chairman of Committees said, if the previous amendment had been agreed to. The second part of the subsection as drafted reads: His decision thereon shall, subject to subsection (6) below, be final and may require the local roads authority to delete from their list of public roads the added entry or, as the case may be, to reinstate in their list the deleted entry".

The effect of my amendment would be to make it read: His decision thereon shall, subject to subsection (6) below, be final and may require the local roads authority to give effect to his decision". That covers exactly the same point as the much more cumbersome wording of the Bill. I beg to move.

Lord Mackay of Clashfern

The necessity for the words which the noble Lord seeks to delete is to indicate what the powers of the sheriff are on an application. If this provision is not included, there is no clear specification of the powers of the sheriff on a reference being made to him. This, therefore, serves the dual purpose of the phrase which the noble Lord seeks to put in its place. It also serves to define what decision the sheriff is empowered to take. In the light of that explanation, I hope the noble Lord will feel able to withdraw his amendment.

Lord Hughes

No, I do not. Further up the subsection we read: The requisite number of persons to whom notice of a proposed addition or deletion is given under subsection (4)(a)above may, if that addition or deletion is subsequently made, refer the matter by summary application to the sheriff'. The first four lines of the subsection make perfectly clear what it is that the sheriff is considering. He is considering whether the addition to the list or the deletion from the list should be made. That is the matter he has to decide. Therefore I do not believe it to be necessary to repeat at the end of the subsection what appears at the beginning. That is why I feel it is sufficient to say: give effect to his decision".

Lord Stodart of Leaston

Speaking as the simplest of farmers and as the most elementary of laymen, it seems to me that the noble Lord, Lord Hughes, is talking extremely good sense. If his amendment were accepted I could read no other meaning into what was required. But, needless to say, if my noble and learned friend says that his wording is essential for the proper interpretation of law, who am I to argue? But I am bound to say that I should have thought the shorter wording made sense.

Lord Mackay of Clashfern

In my view, it is wise to have these words in the Bill in order to define the powers of the sheriff on the reference of this matter to him.

Lord Ross of Marnock

But, with all due respect, we do not. What we use is the word "may". It is not what the Sheriff may do; it is what the local authority may do. The local authority may require the local roads authority to delete from their list"— or add to their list. Is the noble and learned Lord honestly telling us that when a matter comes before the sheriff as to whether he has to add it or delete it—because that is what will be before the sheriff—he will not know what he has to do, without those words being in the Bill? I become more disappointed with every amendment we get. Are we saying that we are to give an order to the local roads authority, but if the sheriff did not know of and read those words he would not know what to do? He does not have to do it—he only "may" do it, because those are the words which are there. It is not very good advice to a sheriff—but, quite frankly, the sheriff does not need the advice. He knows what he is doing. He gets an application before him, on which people are appealing against the road being added or being deleted, and he knows what he has to do.

It may well be that the noble and learned Lord the Lord Advocate is tired. In that case, it is time that he retired for the night. The noble Lord, Lord Stodart of Leaston, is absolutely right: it can have no other meaning. All that the local authorities have to do and must do is give effect to the decision of the sheriff on the appeal to him. The noble and learned Lord has said enough. Unless he can respond with something more satisfactory he would do better to retain some of his reputation by saying nothing at all and by letting the amendment be defeated.

Lord Hughes

On the front page of the Bill, after the words "Explanatory and Financial Memorandum", it states: "The Bill codifies and modernises"—but surely, if we are to take the word "modernises" literally, we ought to try as far as possible to put legislation into terms which ordinary people can readily understand. It may well be that for 50 years or 100 years or 150 years it has been done in a particular way. But it is not so many years ago since this House, sitting in its judicial capacity, took the decision that it did not need to be bound by decisions which the House had previously taken. If the House could do that in relation to giving decisions on law, surely we do not necessarily need to stick to the form of words which has been hallowed by use over decades—or, as in the case of this legislation, for more than a century.

I suggest that the noble and learned Lord, as my noble friend said earlier, is falling into the trap of feeling bound to defend everything that is in the Bill. That is a good quality in somebody who seeks to be loyal to the staff of his department, but it can be carried to ridiculous extremes. This is an example of that. If any sheriff or any lawyer misinterpreted the wording I have suggested in the way in which the noble and learned Lord the Lord Advocate implied is a possibility, then I would say one of two things; either the sheriff is not fit to be on the Bench or the lawyer is not fit to have a client.

On Question, amendment negatived.

Lord Hughes moved Amendment No. 18: Page 3, line 11, leave out ("(as distinct from any road carried by it)").

The noble Lord said: This is merely a probing amendment. The clause as it stands reads: and without prejudice to sections 76 to 78 of this Act, until such acquisition the authority shall not manage and maintain the bridge (as distinct from any road carried by it)". My amendment is to leave out the words as distinct from any road carried by it". Quite frankly, I find it difficult to understand how anybody can maintain the road, which in any commonsense point of view is part of the bridge, without having responsibility for the bridge. What struck my mind immediately was bridges like the Tay Road Bridge and the Forth Road Bridge, which of course are not covered by this clause because both the road and the bridge belong to the bridge authority. But imagine a situation where it was not the bridge authority which owned both the road and the bridge. Imagine somebody coming along and saying, "The road is getting in to a terrible state of disrepair; it is full of potholes", and somebody else saying, "Well, it is not my road; I own the bridge but not the road". Where does the road end and the bridge begin?

I do not know what the answer is. I started off by saying it was a probing amendment to find out exactly what this clause means and how it can be given effect to. I shall be grateful if the noble and learned Lord the Lord Advocate can enlighten me. I may say I am not the only member of the Committee who has doubts as to what this clause means. I beg to move.

Lord Mackay of Clashfern

The situation is that the road includes the bridge, generally speaking. but there may be situations in which the maintenance of the bridge and of the road are not in the same responsibility. Let me give one illustration. The bridges which cross the Caledonian Canal are required to be maintained by the Caledonian Canal Authority, whereas the road which crosses the bridge is maintained by the roads authority. Of course, what happens is that they apportion the responsibility for the whole thing between them. But one has to distinguish between these and one has to be careful not to put on the roads authority the whole responsibility for maintaining a bridge just because the road goes across the bridge. With that explanation, I hope the noble Lord will feel able to withdraw his amendment.

Lord Hughes

I have one further question. If the bridge authority fails in its responsibility and the bridge falls, taking the road with it, does the road authority have a claim against the bridge authority for negligence?

Lord Mackay of Clashfern

It would depend upon the circumstances, but one would think there would certainly be a very good case.

Lord Hughes

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

I have to advise your Lordships that if Amendment No. 19 is agreed to I cannot call Amendments Nos. 20 and 21.

Lord Ross of Marnock

There is a very great danger of it. The noble Lord the Lord Advocate has already said that he would look at the drafting of subsections (5) and (9) together. I have no intention of moving Amendment No. 19.

[Amendment No. 19 not moved.]

Lord Hughes moved Amendment No. 20: Page 3, line 20, leave out ("half or more") and insert ("not less")

The noble Lord said: Amendments Nos. 20 and 21 go together.

Amendment No 21: Page 3, line 26, leave out ("half or more") and insert ("not less").

The Bill as it stands says in line 20 "include half or more than half of the boundary". My amendment is to make the words "not less", so that it would read "include not less than half of the boundary". It has the advantage of being slightly fewer words, and I suggest it is the way in which we would talk about it. If you wanted to make certain that it was at least half that was being considered as the minimum, you would normally say "not less than half", which has exactly the same meaning, I think, from a common sense point of view. But I shall not be at all surprised if I am told that, legally, "half" or "more than half" have a different meaning than "not less than half". I beg to move.

Lord Mackay of Clashfern

I am going to surprise the noble Lord. I am very happy to accept this amendment. I am grateful to him for moving it. It is an improvement.

On Question, amendment agreed to.

Lord Hughes moved Amendment No. 21:

[Printed earlier.]

The noble Lord said: This amendment is similar. I beg to move.

Lord Mackay of Clashfern

Equally, I accept it.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Lord Denham

I beg to move that the House do now resume.

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

House resumed.