HL Deb 10 April 1984 vol 450 cc1069-82

4.57 p.m.

Lord Mackay of Clashfern

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Roads (Scotland) Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(Lord Mackay of Clashfern.)

On Question, Bill read a third time.

Clause 32 [Snow gates]:

Lord Ross of Marnock moved Amendment No. 1: Page 23, line 15, after ("road") insert ("in his opinion").

The noble Lord said: My Lords, we now come to what shall ever after be known as "Mackay's monstrosity". This is the second Scottish Bill that we have had before us today. We have already had the Rent (Scotland) Bill, which was a consolidation measure. I hope that the noble and learned Lord the Lord Advocate will convey to those responsible for that Bill our congratulations and our thanks for a very effective and good piece of legislative consolidation, unlike the piece of modernised mix-up that we have before us now in the form of the Roads (Scotland) Bill.

As helpful as ever, I have been trying to come to terms with some of the difficulties that this Bill will pose for the local authorities who will have to operate it and get used to all the new terms. Amendment No. 1 arises at page 23, line 15, where, after the word "road", we propose to insert "in his opinion". I think that it might be for the convenience of your Lordships if we also deal with Amendment No. 2, which is consequential to this amendment. Amendment No. 2: Page 23, line 25, leave out lines 25 and 26.

These amendments involve some rearrangement which in my view would be much more effective and far better than the way in which the Bill is worded at present. If I remember correctly, page 23 deals with snow gates and the question of opening and closing snow gates. If one closes a snow gate, or indeed having closed it reopens it, it may well be that one will subject people to certain dangers. If we do not properly cover the chief constable or the constable who is acting under him who effects the opening and closure, it may make such people liable to claims for damages. I think that that is recognised by the Government when they say later on: 'engaged in the provision or restoration of essential services' means in the opinion of a constable so engaged". I cannot think of any uglier or more inconvenient way of including that. It would be far easier to do as I suggest and, after the words "until the road" insert the phrase "in his opinion". Then we would not need these extra words later on.

I am trying to be helpful and to help the draftsmen. I think that the draftsmen have been heavily employed on other work. When I saw the perfect specimen of the consolidated Rent (Scotland) Bill I was led to believe that we must have had a second XI on this Bill. This has meant that there has been a little more work for us to do. I suggest that this is a very sensible amendment as, indeed, is the consequential amendment. I beg to move.

Lord Mackay of Clashfern

My Lords, I am extremely grateful to the noble Lord for being so helpful; he has expressed his helpfulness in his usual way. The method that has been adopted in this clause to deal with the matter has been adopted to cope with a point with which his amendment, as expressed, does not appear to cope. As it stands, the clause ensures that the decision as to when snow gates should be shut and the decision as to when the road is safe again for traffic can be taken by different constables. Furthermore, the opinion of the person who decides to let through a particular piece of equipment which is: engaged in the provision or restoration of essential services is another matter to be judged by a constable. But in the nature of things it would not always be the same constable. The person who decided that the snow was very bad on the Grampians and that the gates should be shut may well have gone off duty by the time the circumstances have changed and it is necessary or desirable to re-open the gates.

It is in order to cope with that problem that we have adopted this particular system of drafting. I agree that the noble Lord's amendment is simpler and more elegant than our form of drafting. But his amendment seems to have the effect of saying that the opinion required for opening is the same opinion as was required for closing—that is, the opinion of the same person—and also the same opinion as was required in relation to the provision for the restoration of essential services.

Having said that, I am grateful to the noble Lord for putting this point to us and we certainly would not wish to close the matter today. I shall consider whether we can improve on this. In fairness to the draftsmen, I should say that they were by no means a second XI; they were extremely accomplished, thorough and conscientious draftsmen. In my discussions with them it was pointed out to me that the only way in which to cope with this problem completely would be to divide the subsection into the various stages—the closing, the opening and, again, the question of the restoration of services. That seemed to be an unnecessarily long way of doing it. Therefore, those are the reasons which have prompted us to take this course. In the light of these considerations, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Ross of Marnock

My Lords, I do not entirely accept what the noble and learned Lord the Lord Advocate has said. On a proper reading of this we have "chief constable", who is defined elsewhere in the legislation as a "constable". The chief constable is a constable. But whether it be the chief constable or anyone acting for him. it does not mean to say that it is the same person acting for him all the time; it could be a different person. I think that the noble and learned Lord appreciates the awkwardness of this. The legislation does not flow properly when one has to stop and redefine in this kind of way; it should be done within the clause itself.

I appreciate that the number of amendments which the noble and learned Lord the Lord Advocate has produced at the various stages has proved rather embarrassing. I notice that he has tabled no amendments at this particular stage. I do not blame him for that; it is pretty embarrassing for us all as Scots to see a piece of legislation like this. I suggested that between this place and another place the noble and learned Lord should lose the Bill altogether. We should not lose anything very much. It may well be that between this place and another place the noble and learned Lord will discover a few more amendments—I shall be very surprised if he does not. Within that consideration I hope that he will take another look at this particular clause. In fact, he has said that he will do so.

Some second XIs are pretty good. I withdraw the remark that the draftsmen are a second XI. It may well be that they have been playing too many games and became rather tired when they came to this one. However, it is not a very good Bill; it is not very well drafted. In view of what the noble and learned Lord has said—that he will give further examination to this particular clause and the way in which it has been drafted—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.)

Clause 33 [Clearance of snow and ice]:

Lord Carmichael of Kelvingrove moved Amendment No. 3: Page 23. line 28, after ("reasonable") insert ("in all the circumstances").

The noble Lord said: My Lords, the object of this amendment is, again, to ask the noble and learned Lord the Lord Advocate to look very carefully at the whole question of the clearing of ice from public roads for pedestrians and vehicles, realising that a public road also embraces the pavement.

At an earlier stage I mentioned the problem which I foresaw of the roads authority having a great deal of difficulty and working round the clock to keep traffic flowing on the roads. In all the circumstances it might be quite impossible for the authority also to clear the fronts of commercial and domestic premises unless something stronger than the word "reasonable" is included in the Bill. We suggest that the phrase "in all the circumstances" may be enough to enable the roads authority to say that it was so busy just trying to keep traffic moving that it could not clear the way to every little shop or house in the area. Therefore, that would be understood and the authority would be protected if the clause were strengthened.

Secondly, the phrase "in all the circumstances" could also raise the matter of the money involved for the local authority. If it has to take on the duty of clearing all the pavements to make them fit for pedestrians, the money involved might be considerable, particularly as most of the work will be carried out at overtime rates or perhaps new machinery may be required in order to deal with the narrower and different contours of pavements as against carriageways. So the circumstances may be such that the local authority does not have the money to carry out the snow-clearing.

Therefore, in order to get elucidation on these points, and also in order to give extra protection to the roads authority, we propose that the clause should read: A roads authority shall take such steps as they consider reasonable in all the circumstances to prevent snow and ice endangering". I beg to move.

Lord Mackay of Clashfern

My Lords, in our view this clause as drafted also includes the thought which the noble Lord, Lord Carmichael, has put forward. The standard of reasonableness implies that one must look at the circumstances to see what is required. It is not a standard that is laid down absolutely. It is a standard that has to be determined in the light of the circumstances as they apply. I should have thought that it is reasonably plain that the clause as drafted has that effect.

In view of what the noble Lord has said on this general matter, I should say that this obligation does not go beyond what is presently required of roads authorities at common law. The situation in certain of the cities is of course different. There are local enactments providing for the clearing of snow by frontagers in Aberdeen, Edinburgh, Glasgow and in Greenock. There is a bit of dubiety about the proper application of the Glasgow provision, but these local enactments are in any event scheduled to fall at the end of this year under the local government legislation.

Elsewhere the onus is on the roads authority to take reasonable steps to prevent snow and ice endangering the safe passage of traffic over public roads, including pavements, under the common law. Indeed, the question of pavements was the subject of a particular case which illustrates the difficulties under the present law of being sure of the extent of various obligations. In Thomson v. Angus County Council, the council responsible was the Angus County Council, and they could not think of any better answer in the circumstances than to blame the Forfar Town Council, saying that it was their duty as the local authority to clear the pavement where the road itself was the responsibility of the county council. But that submission was rejected on the view that the pavement, or the footway, is part of the road, and accordingly this obligation is no more than the obligation at common law.

So far as the financial situation is concerned, obviously, of course, the cost of the operation is a relevant circumstance to be taken into account in deciding whether it is to be done, and one has to take account of the cost as against the dangers which are likely to arise if the operation is not done. Accordingly, I entirely accept the sense of the amendment and believe that it is covered by the clause as drafted, and I hope that in the light of that the noble Lord will feel able to withdraw this amendment.

Lord Ross of Marnock

My Lords, the purpose of the amendment was to get from the noble and learned Lord the Lord Advocate exactly what the position will be. It is a pity that he mentioned the private Acts, because he knows that we dealt with the private Acts—and certainly put a time limit on them—when we dealt with local government legislation, and also particularly with the civic government Act. One of the difficulties here is that the noble and learned Lord mentioned the city of Edinburgh. But he knows that there is no such thing now. It is a district of the city. The same applies to Glasgow; so that their jurisdiction has gone way beyond their original area.

It may well be that these new areas have not been properly considered. Certainly there would be new jurisdictions or new rights and responsibilities in respect of the districts in some of these areas which were in the countryside before. If you are going to apply the same kind of principle of clearing snow from pavements and footways—you have to be careful because footpaths are not on the roads; footpaths are in parks and places like that; we shall come to that later in the definitions—it means that there could be a considerable additional responsibility placed upon district councils. That means that the question of finance arises.

We had what is laughingly called by the draftsmen a "precipitation and accumulation" of snow around the 19th January in Scotland, certainly in the west. I remember spending a glorious six hours in a police station while they tried to clear the way between Glasgow and Ayr without snow gates, although I believe that the chief constable, or someone responsible to him, was very busy that night. For the whole week in certain of the towns you could barely make your way along the pavements. According to this clause here the local authority—I must not say "highway", as that is another dirty word; they are no longer highways in Scotland; they are no longer streets; they are only roads—or the roads authority is given the responsibility of clearing these, not just in relation to vehicular traffic but also pedestrians, so they stick you on to the pavement.

I saw people falling all over the place. Was it reasonable or not that these were not cleared? I do not know whether the noble and learned Lord appreciates it, but there was a case during this past winter when there was one particular part of Scotland where nothing was done in respect not just of pavements but of roads as well. There was no sanding or gritting at all. The place was a skating rink. Was it reasonable for them to do nothing?

There is a liability within this responsibility. If they put forward an objection to doing it because there was no money available, because it was too late at night, or something, is that reasonable? If they say that they have not the money, that the Government have not provided additional money to do it, is that reasonable? I want to make clear the extent of the liability of the roads authority in respect of this new responsibility, and whether or not they are covered in certain aspects of it in respect of private civic legislation.

We want to make absolutely plain to the local authorities what the responsibilities are. Can they come along and say that the Government have cut the amount of grant that is being given to them in respect of that? Would that be construed in court as reasonable if they did nothing in respect of clearing snow from a pavement? The local authorities themselves are concerned about this business. They want to know the extent of their liability.

Lord Morris

My Lords, I am grateful to the noble Lord, Lord Ross of Marnock, for giving way. When he saw these people falling about in Glasgow, was it by any chance on Friday night?

Lord Ross of Marnock

My Lords, Friday night is not a good night for what the noble Lord has in mind, Saturday night is a far better night, and the chances are that they would not have fallen about if the snow and ice had not been there, because we do not take ice with it in Scotland. But the noble and learned Lord knows what I am getting at. I want a clear statement from him as Lord Advocate as to the responsibilities and liabilities. We know what the responsibilities are, but what would be the liabilities of the roads authority if they did not, for some reason or other, clear the snow?

Lord McCluskey

My Lords, I wonder whether I might rise to support this amendment, principally in order to ask the noble and learned Lord the Lord Advocate whether he could make clearer to me the meaning of this particular clause. What the road authorities are required to do is to take "such steps as they consider reasonable". That, on one reading, imposes a duty to take steps, and the discretion that is given to them is to determine what steps are reasonable. So on one view it is a duty to take steps, and then they have a discretion to determine what steps are reasonable and what might be unreasonable. Therefore, if, as the noble Lord, Lord Ross of Marnock, suggested, no steps were taken at all, would that automatically be deemed to be a failure in a duty to take such steps as are considered reasonable?

Lord Mackay of Clashfern

My Lords, with the leave of the House, may I say that the noble and learned Lord, Lord McCluskey, has pointed to one aspect of this matter. I think that it might well be that in some circumstances it would not be reasonable; in other words, that there were no steps that were reasonable to take in the particular circumstances. But I should have thought on the whole that that would be rather unlikely, and that faced with snow and ice endangering the safe passage of pedestrians and vehicles over public roads one would expect there to be some steps that the local authority could take over time which it would be reasonable for them to take.

Certainly if the picture that the noble Lord, Lord Ross of Marnock, has painted of what he was seeing in the middle of January was to obtain for any length of time—I can see that for a short time it might be possible to say that it was reasonable to allow people to be endangered in that way, falling about as if on a skating rink—I should have thought that it would be reasonable for the local authority to take some steps to prevent the snow and ice endangering the safe passage of pedestrians; for example, by sprinkling some sand or something of the kind on the road and pavement. But this responsibility creates a liability if the duty is breached. That is as clearly as I can put it.

Lord Carmichael of Kelvingrove

My Lords, we are grateful to the Lord Advocate, and to all those who took part, for clarifying to the public the problems arising in this clause. Having heard the explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 4: Page 63, line 9, leave out ("street").

The noble Lord said: My Lords, as my noble friend said, this is just up my street. We have spent so much time on this Bill, and so have the draftsmen trawling through all the Scottish legislation to get rid of the word "street", that is now so offensive to us. In Schedule 8 we find reference to the Public Utilities Street Works Act 1950, which we all remember. By the time we have finished amending that and getting rid of the word "street", the only time "street" is mentioned will be in the title of the Act. This is the kind of absurdity which has been raised by the Bill. Helpful as ever, I spotted two items where we could get further rid of "street".

With permission, I think we might take Amendments Nos. 4 and 5 together as they raise exactly the same point: Amendment No. 5: Page 79, line 1, leave out ("street"). On page 63, line 9 we come back to something familiar to those who have followed Scottish legislation over the past three years because we came across it in the Civic Government (Scotland) Act where we were plagued with street traders. We do not need to call them street traders now because here we find: street trading under and in accordance with a street trader's licence". All we need is: trading under and in accordance with a street trader's licence". The word "street" is unnecessary. Getting rid of it will give a few more hours' sleep to some meticulous draftsman who has spent so long trying to get rid of the word "street" from all pieces of legislation from the year 1829 right through and up to date.

We no longer have any "highways" in Scotland. They are all roads. The only thing that will bear any relevance to legality in Scotland is something that I have questioned and to which I have not yet had an answer. What do we do with the Highway Code? I know that is nothing to do with the amendment. But I have still not had an answer from the Lord Advocate. He really should answer that before we depart. We have got rid of "highway" as an offensive, out-of-date term, along with turnpikes and the rest of it.

We must explain to the people why we stick to this antiquated term "Highway Code". By the time we get through this Bill and it comes into operation no one will remember what a street or a highway was. They will all wonder what this term is in Scotland. It is all right in England so my noble friend should not get worried about it. We shall still have highways in England but not in Scotland.

It is sensible in the two instances I have mentioned in Amendments Nos. 4 and 5 to get rid of the word "street" because if the trader is trading under a street trader's licence, that is enough. One does not need to call him a street trader. I beg to move.

Lord Mackay of Clashfern

My Lords, there may be a slight misunderstanding which seems to have persisted—no doubt it is my fault for not being able to remove it—that the idea of this Bill was to remove the word "highway" from the Scottish vocabulary.

Lord Ross of Marnock

My Lords, no, I did not say the vocabulary—even that is not within the power of the Lord Advocate; from the legal vocabulary, yes.

Lord Mackay of Clashfern

My Lords, maybe I should correct myself. The misunderstanding is that the Bill attempts to withdraw the word "highway", for example, from the Scottish legal vocabulary. There is no such intention. The intention of the Bill is to provide a structure for roads legislation so that if in a statute the word "road" is used it will be used consistently and people will be able to tell exactly what it is referring to. If one cares in ordinary or legal language to refer to it as a "highway", one may be introducing a certain element of confusion. In the statutory provisions the desire is to create a system under which the basic structure is that of a road. As I pointed out on the last occasion, by far the majority of Scottish roads authorities use that expression for their departments. Lothian is the authority that is different from the others in using the word "highway" to describe its department.

There is no intention of outlawing the word "highway", and if anybody wishes to describe the volume which is published under the authority of the Road Traffic Act as the Highway Code I do not think anyone would be any the worse for that. There is nothing in this legislation to cast any doubt on that practice which the noble Lord, Lord Ross of Marnock, would like to see continued. I have no objection to that.

The reason that this person is described as a street trader in this provision is because that is the way in which the statute under which this is set up—the street trading licence system—so describes him. That statute is the Civic Government (Scotland) Act 1982. From that we see that a street trader does not need to be trading in anything that could properly be described as a street. This is another example of the way in which technically one has to enlarge the content. Street trading means trading, hawking or the like in a public place whether a thoroughfare or not. This is not limited to an activity carried on in a road and it would therefore be quite inappropriate to use the word "road" in this context. "Street" is the description used in the 1982 Act to cover public places in general for this purpose. In the definition section of the 1982 Act, for example, public place, that is places to which the street trading rules apply, means: any place (whether a thoroughfare or not) to which the public have unrestricted access and includes… the doorways or entrances of premises abutting on any such place"— so it is street trading to set up a stall in somebody's shop door. The definition continues: any common passage, close, court, stair, garden or yard pertinent to any tenement or group of separately owned houses". It is a comprehensive term, it is a fairly well-recognised term, and for my part I should like to continue to use that term. It does not in any way conflict with the philosophy of the Bill or the structure we are seeking to set up. I hope that in these circumstances the noble Lord will feel able not to press this amendment.

Lord Mackie of Benshie

My Lords, may I say that I find the Lord Advocate's reply deeply unsatisfactory. The important point appears to me that "street trader's licence" describes the activity quite happily. A street trader could be carrying it on in a roadway, highway or doorway. Therefore the noble Lord, Lord Ross of Marnock, has a very good point when he says that the street trader's licence describes the whole thing, whereas "street trading" might mean that it applies only in a street, although it applies to other places.

Lord Mackay of Clashfern

My Lords, with the leave of your Lordships, of course the noble Lord, Lord Mackie of Benshie, will see in the definition in Clause 95(6) that, street trading" has the same meaning as in section 39 of the said Act of 1982"— that is the section dealing with street traders' licences. If one is going to be precise about it, then one has to use the phrase which is used in the Act which sets up this whole thing—and that is in Section 39 of the 1982 Act. If you do not do that, then you run very serious risks that you will not cover properly the activities that are covered by that particular section.

Lord Ross of Marnock

My Lords, this just shows you the difficulties that you get into when you start mucking about with something in which previously there was no confusion. We all knew what street traders, street walkers, street lighting and all the rest of it was, without all this confusion of roads. Look at that section and at the number of Acts of Parliament in which the word appeared—and yet you now get rid of the word "streets" and call them "roads"; it was quite unnecessary. That is the whole point about this Bill. It has created confusion rather than anything else. I was just having a little bit of fun, and I beg leave to withdraw the amendment and not to move the next one.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Clause 144 [Interpretation]:

Lord Ross of Marnock moved Amendment No. 6: Page 93, leave out lines 14 and 15.

The noble Lord said: My Lords, I beg to move Amendment No. 6 and at the same time to speak to Amendment No. 7. Amendment No. 7: Page 93, leave out lines 18 to 20.

In page 93 is part of Clause 144, which is the interpretation clause. I thought that interpretation was something that was meant to be helpful. In lines 14 and 15, if anyone ever had any difficulty about it, is the interpretation of a "snow gate" which is described for our enlightenment as follows: 'snow gate' shall be construed in accordance with Section 32(1) of this Act". So that instead of being helpful it takes us right back to what we have already read. Clause 32(1) reads: Gates (hereafter in this section referred to as "snow gates") may be provided and maintained by the roads authority for the purpose of temporarily closing a road to vehicular traffic on any occasion when snow is rendering or has rendered that road unsafe for such traffic". Well, I understand that. But why do we need an interpretation of it? That adds nothing. It is really pointless.

The same thing goes for the next one. I have always complained about the expression "special road". We are modernising statutes. That is what we are supposed to be doing with this pig's breakfast of a Bill. I have asked before if any noble Lord being new to this Bill could tell me what a "special road" was. Nobody could answer. And you would not be able to answer when you read this interpretation. The interpretation is: 'special road' means a road provided or to be provided in accordance with a scheme under Section 7 of this Act". Section 7 of this Act is helpful, very helpful indeed, to interpret. It says: special roads, being roads provided in pursuance of a scheme made under Section 1 of the Special Roads Act 1949". That is all.

So we have an interpretation which goes back to the beginning of the Bill and that takes us back to the Special Roads Act of 1949. So we are no wiser. That is not being helpful. Of course, we discovered that mainly special roads are motorways, but they are not only motorways. If you told people that special roads were motorways it would make more approximate sense than the designation "special road". I hope that between now and another stage of the Bill the Government will look at this one and see whether they can do a little better. I looked at the Rent (Scotland) Bill, a consolidation Bill, that we dealt with today. The interpretation there was helpful and there was very little of this reference back to the use within an earlier section and then that earlier section throwing one back to an Act of 20 or 30 years before in order to find it. It really is not good enough. I do not call this modernising statutes. I beg to move.

Lord Hughes

My Lords, I should like to support my noble friend on his Amendment No. 6. If anybody reading Clause 32(1) about snow gates had any doubt as to what "snow gate" meant and if he were a lawyer, for instance, and was asked, "What is a snow gate?" his answer would be that there would be an interpretation of "snow gate" somewhere in the Act. So he would turn to the interpretation clause. He wants to find out what is a snow gate in terms of Clause 32(1). When he gets to the definition he finds that it says that it is what it says in Clause 32(1). Having said it first in Clause 32(1), why do we need, later on in the Bill, to say to somebody, "Look back to 32(1) to find out what is a snow gate"? I think that this is a case which may be perfectly sound from a lawyer's point of view, but from a layman's point of view it seems to be utter nonsense.

Lord McCluskey

My Lords, before the noble and learned Lord replies, may I say that I support this amendment for slightly different reasons from the reason given by my noble friend Lord Ross of Marnock and a similar reason to that given by my noble friend Lord Hughes. The point I am making is this. I do not believe that an interpretation section is designed to be helpful. It is designed to give precision to words used in the statute. But there is no point in defining the words "snow gate" in the interpretation clause if they are not used anywhere else in the Bill except in Clause 32. If they are used but once—as I think they are—in Clause 32, and are defined in that clause, there is no need to put them in the interpretation clause at all. If the noble and learned Lord the Lord Advocate tells me they are used elsewhere, I would not then support the deletion of the words from the interpretation clause of the Bill.

Viscount Massereene and Ferrard

My Lords, we have Bills drafted to give employment to lawyers who otherwise would be unemployed. If you take the word "reasonable", that is absolute Heaven to lawyers. You can argue about it for hours and hours. I quite agree with the noble Lords opposite.

Lord Mackay of Clashfern

My Lords, now that I have the opportunity to do so, I was wishing to say that I will accept the amendment. The reason I accept it is this. When this Bill was originally introduced, the words "snow gate" came in another clause; but we have been able to simplify that and to delete it as a result of suggestions made to us by noble Lords opposite at the earlier stage. The position is that "snow gate" appears only in Clause 32, and therefore, as the noble and learned Lord, Lord McCluskey, has said, it is not necessary to have it. Therefore, I accept the first amendment.

The second amendment is in a different case because "special roads" comes in a whole lot of clauses and therefore we have to make sure that you have a reading section to which you refer. Perhaps I could make one passing reference to what my noble friend has said. It is not my understanding that the purpose of passing Bills is to give employment to lawyers. There are much higher motives than that in passing Bills of this kind. Obviously, we wish to use words which are reasonably precise and yet not too precise for the situation. My noble friend criticised the use of the word "reasonable". I should like to hear him describe what he would like to put in place of, for example, the obligation to do what is reasonable in snow clearing. The other alternative to saying that you do what is reasonable is to lay down all the circumstances in terrific detail about precisely what you should do in every possible circumstance that you can think of. One can imagine that the result of that exercise would be to make an even longer Bill than the present one. "Reasonable" is a word which I think is perfectly intelligible but is capable of different applications in circumstances, and it is a question of what the circumstances are when you decide what is required.

Lord Hughes

My Lords, if I may speak again, the noble and learned Lord the Lord Advocate said it is not the purpose of legislation to provide work for lawyers. I think we must accept that, but he must admit that it has a frequent side effect, working that way.

Viscount Massereene and Ferrard

My Lords, I was only going to say that I had my tongue in my cheek then.

Lord Ross of Marnock

My Lords, I do not know about lawyers, but this has provided a lot of work, unpaid, for laymen; occasionally we help the lawyers. We have to be convinced that what is being said is reasonable. I did not like the easy definition of the noble and learned Lord of "reasonable".

"Reasonable" is never there on its own. It is usually, for example, something, "reasonable to the chief constable in relation to the snow gates aspects" or something that, "in the opinion of the Secretary of State is reasonable", and that gives the get-out to the bureaucrats. It is not what anyone else thinks is reasonable, but what perhaps the Secretary of State thinks is reasonable. That is the importance of that particular phrase which constantly creeps in.

We are very grateful for this earth-shattering amendment now being accepted by the noble and learned Lord. It shows once again—and he may excuse the phrase—that occasionally he is a reasonable man, or maybe he is just belatedly seeing reason. However, we are grateful for that. In view of that, I wish to hear it being put, and we shall see crowds of people coming into the Chamber to oppose the noble and learned Lord because he has taken leave of his senses and accepted an amendment from this side of the House!

On Question, amendment agreed to.

[Amendment No. 7 not moved. ]

5.43 p.m.

Lord Ross of Marnock moved Amendment No. 8: Page 94, line 18, leave out ("(3)") and insert ("144A.")

The noble Lord said: My Lords, this is another amendment which will be accepted because we are still on the interpretation Clause 144. I am sure that those people who have not provided themselves with the necessary hymnbooks for this important piece of our service today will not know that Clause 144 is interpretation—which is supposed to mean interpretation. I suggest what we have in these lines is not properly interpretation because subsection (3) begins: This Act does not confer any power or impose any duty"— as regards something or other. That is not interpretation. This really should be a new clause, and that is why I suggested Clause 144A. I am not quarrelling with what is here— being a footpath only, is a public path created … Then: being a footpath only, forms part of a long-distance route the proposals for which have been approved by the Secretary of State", and so on. That is not interpretation. Do not confuse us. Just put it on its own. Give it a new title, but do not confuse us with interpretation here, which refers to the powers imposed or not imposed, as the case may be. I beg to move.

Lord Mackay of Clashfern

My Lords, the purpose of this provision that the noble Lord Lord, Lord Ross of Marnock, seeks to separate out from Clause 144 is in fact to explain that certain roads do not attract the powers and duties contained in the Bill. The provision is a consequence of the committee under the noble Lord, Lord Stodart of Leaston, who recommended that footpaths in a recreation area should be the responsibility of the district council rather than the region. In view of its explanatory nature, it is right that it should be contained and remain in the interpretation clause. The question is obviously open to different points of view, but it seems appropriate to have it here as explaining the extent of the earlier provisions.

Lord Carmichael of Kelvingrove

My Lords, I can see the purpose of the explanation of the noble and learned Lord the Lord Advocate; but as a layman—and perhaps this is why one should always get legal advice—I can see myself looking at a footpath and taking the major definition that is within the interpretation clause and not going further on, whereas if the explanations given under subsection (3) were referred more immediately to certain sections within the interpretation clause, then to someone like myself, a layman, the interpretation clause would be more understandable. There is a genuine confusion for someone like me in finding that something was not picked up earlier, which appears to have been added at the end. I agree that it removes any danger of doubt but, as my noble friend Lord Ross of Marnock said, we are not disagreeing with the substance, but merely with the placing within the Bill of these particular clauses.

Lord Ross of Marnock

My Lords, I am disappointed that the noble and learned Lord the Lord Advocate did not go further in accepting my amendment and suggest that subsection (2) as well should not be an interpretation. The noble and learned Lord conceded one point because, if I remember rightly, Clause 145 was part of the interpretation and it does make nonsense when you confuse things by putting in this question of powers and non-powers in respect of footpaths "owned or managed". With all due respect, it is not interpretation. So between now and another place, if it is going to travel the whole road, I hope the noble and learned Lord will look at this, think again, and give us something much more sensible from the point of view of Scottish legislation.

I am very glad to see that we have so many noble Lords from other parts of Britain here today to help us in respect of this. We are very proud of Scottish legislation and we must demonstrate to them our concern that these matters are being properly looked after. I will not speak on the next stage of the Bill. We have said enough about this Bill and the noble and learned Lord knows how I feel about it. It has been a waste of effort, and I will not go over it again. But he has time between now and the next stage, which I hope may be fairly prolonged, to look into the matter again and see whether the Government can improve this. I can assure him there is considerable room for improvement. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

An amendment (privilege) made.

Lord Mackay of Clashfern

My Lords, I beg to move that this Bill do now pass. In doing so I should like to take the opportunity to thank those noble Lords who have contributed to the deliberations on this Bill. It would be invidious perhaps to try to single out those who have particularly participated, but certainly I would like to make clear my gratitude to the noble Lords, Lord Ross of Marnock, Lord Carmichael of Kelvingrove, Lord Hughes, Lord Mackie of Benshie, and to the other noble Lords who have taken part. My noble friend Lord Selkirk has taken a great interest in the Bill and has contributed to its improvement. I must not forget that my noble friends Lord Stodart of Leaston and Lord Drumalbyn have also taken an interest. Last but by no means least, I should like to mention the right reverend Prelate the Bishop of Norwich who illustrated the interest others outside Scotland have in promoting suitable legislation for Scotland.

This Bill represents a considerable and long overdue improvement in the statutory provisions relating to roads in Scotland. I believe this Bill provides a single comprehensive measure which gives a logical and clear structure to the Scottish statutory provisions relating to roads. I should like to thank those behind the scenes who have assisted in drawing up this legislation. The noble Lord, Lord Ross of Marnock, made one or two different references to them at different stages; their work has been conscientious and very hard and, I believe, very well worth while to another place with your Lordships' good wishes.

Moved, That the Bill do now pass—(Lord Mackay of Clashfern.)

Lord McCluskey

My Lords, the noble and learned Lord the Lord Advocate, in making those remarks, has failed to appreciate the innerness of the contributions made by my noble friend Lord Ross of Marnock. He gave a clue to what that meaning was when he referred to noble Lords in other parts of Britain. I think what the noble Lord, Lord Ross of Marnock, was pointing out essentially is that had we had devolution in Scotland the Bill would never have reached this House and your Lordships would not have had to listen to this kind of debate on matters that we have had today. I did not think of putting that forward as an argument for devolution at the time, but now I wish I had done.

On Question, Bill passed, and sent to the Commons.