Roads (Scotland) Bill [H.L.]

HL Deb 17 January 1984 vol 446 cc976-1037

6.46 p.m.

The Lord Advocate (Lord Mackay of Clashfern)

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD NUGENT OF GUILDFORD in the Chair.]

Clause 2 [Powers and duties of Secretary of State as roads authority: management and maintenance]:

Lord Mackay of Clashfern moved Amendment No. 22:

[Printed earlier: col. 652.]

The noble and learned Lord said: This amendment is similar to the amendment that I moved in respect of Clause 1 and was particularly introduced in order to facilitate the creation of particular roads on which cyclists could cycle. I beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 23:

Page 3, line 41, leave out ("for the time being").

The noble Lord said: I feel that in this Bill there will be a great many occasions upon which we shall be asking either for words to be taken out or for words to be put in to make the Bill more intelligible to lay people. This particular amendment to page 3, line 41, to leave out "for the time being" is one of those occasions.

I do not understand why there have been quite so many amendments to the Bill. I do not think that we can blame the draftsmen on this occasion; it seems much more as though it was the policy taken at the top level in the Scottish Office not to put down the guillotine at a certain point and say, "That is it. Finish". I am sure that with all this enormous amount of roads legislation we could go on polishing and polishing all the time.

This particular amendment seems to me to be dealing with a matter which is superfluous. I will be interested to hear the noble and learned Lord's interpretation of it. It seems to me that the Secretary of State will, in any case, be keeping a list of roads of which he is actually in control and for which he is responsible. The minute he ceases to be responsible for a road it will be removed from the list. That is why the words, "for the time being" seem to me to be superfluous. The moment he loses control of a road or he gives up control of a road, he is no longer liable to keep it on a list. It may be a small point but I feel that the wording in question is unnecessary unless there is some legal explanation which will clarify it for me. I beg to move.

Lord Mackay of Clashfern

As the noble Lord says, most of the amendments are concerned with no deep matter of policy but with just the phraseology in which these particular provisions are expressed. The purpose of using the phrase "for the time being" is precisely to emphasise the need to keep these lists up to date. In fact, at the moment the Secretary of State does have some obligation in this matter, but not in primary legislation. If we are to have a primary legislation responsibility to keep a list, it is very important that it should be a list which is up to date. It is in order to emphasise that, that the phrase "for the time being" is being incorporated.

The noble Lord, with his great experience of transport behind him, will I am sure be very much aware of the necessity for the lists—which have very important consequences—to be up to date. The informal lists have not always been easy to keep up to date. I hope that in the light of that explanation the noble Lord will feel able to agree that it is better to have these words in.

Lord Carmichael of Kelvingrove

I can see the point made by the Lord Advocate. The only point that arises is how does an individual who goes to ascertain whether a road is a Secretary of State road, or whether it is a road that should be on the list "for the time being", is actually up to date? How do we get round this difficulty of the list actually being up to date? Someone may in all honesty go to the Secretary of State, look at the list, see the list of roads and say, "Yes, this is" or "this is not under the responsibility of the Secretary of State". Then he is told, "Ah, but for the time being. It was changed yesterday" or "the day before".

It is a point that I do not want to make too much of, but having been in the position of going to official offices and being told that things have changed since yesterday, I wonder how we can make it clear that the roads will be on the list, and will be taken off the list immediately, or put on to the list immediately they become the responsibility, or not, of the Secretary of State.

Lord Mackay of Clashfern

That is precisely the purpose of these words, to put that duty on the Secretary of State, and the Secretary of State will have a responsibility to see that the arrangements which he makes through his officials have the effect that the noble Lord says. I agree with him that it is frustrating to go to one of these registers and find that they are out of date. It is misleading. The purpose of this is to ensure that the Secretary of State will have the responsibility, and it will be his job to see that it is efficiently carried out. I am much obliged to the noble Lord.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 25:

Page 4, line 2, leave out ("free of charge").

The noble Lord said: This is a probing amendment to find out from the Lord Advocate how frequently these lists are actually referred to. Is it a constant business that they are referred to? How is public time to be saved when people make unnecessary demands to look at the lists? While saying this, it struck me to ask where the lists are kept. It may say somewhere in the Bill. Where are they available other than in Edinburgh? Are they available in the roads offices in Glasgow, Aberdeen, Perth, Dumfries, and various places like that? I beg to move.

Lord Mackay of Clashfern

We have no evidence that excessive use is made of such lists as have to be kept at the moment. The Secretary of State is taking this responsibility, and it seems right that the lists should be available for inspection free of charge. Regarding the places that they are kept, the Secretary of State will keep his lists at the Secretary of State's Office, which would normally be I think at New St. Andrew's House, or where the Roads Division office is. The local roads authorities have responsibilities and they will keep the lists at the appropriate offices of the local roads authority.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3 [Power of Secretary of State to make advances to local roads authorities etc.].

Lord Hughes moved Amendment No. 26:

Page 4, line 9, leave out ("subject to subsection (2)(b)(iii) below")

The noble Lord said: Amendment No. 26 is a paving amendment for Amendment No. 36.

Amendment No. 36: Page 4, line 36, leave out sub-paragraph (iii).

I wish to say right away that the purpose of these amendments is to seek information. I would therefore go to the substance of Amendment No. 36 to leave out paragraph (b)(iii): shall be made only where it appears to the Secretary of State that the whole or any part of the expenditure in respect of which such advances could be made should not fall on the authority.

Would I be correct in assuming that this does not in any way alter the way in which the Secretary of State would be making advances for road purposes? Is it correct that it does not give him power to say in some particular case, "I am sorry, but I am not giving you anything at all on this" although the roads authority might have expected to have substantial grant towards its purpose? Am I right in assuming that this is merely a protection for the ordinary way in which grant would be paid to a roads authority? I beg to move Amendment No. 26.

Lord Mackay of Clashfern

I am obliged to the noble Lord for making the purpose of these two amendments so clear. The answer is that an advance made under this power would free the local authority altogether from the burden of this particular payment. The purpose of the particular provision is to make it clear that this power is to be used only when the Secretary of State thinks that is the way it should be. It comes exactly from the Local Government (Scotland) Act 1975 when this power was introduced, and the noble Lord will perhaps know more about that than I do. This is not changing the existing law, it is merely continuing the conditions under which under the existing law these advances may be made. I hope this answers the noble Lord's question.

Lord Hughes

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hughes moved Amendment No. 27:

Page 4, line 11 leave out ("(other than advances in respect of the acquisition of land)")

The noble Lord said: This is a series of amendments, the purpose of which is to make the clause more easily understood and to cut down a certain amount of the verbiage. It is perhaps one of the regrettable things that if you want to cut down written verbiage you have to do an awful lot of talking verbiage. The amendments which follow from Amendment No. 27 are Amendments Nos. 29 to 34 inclusive, and Amendments Nos. 36A and 38A.

Amendment No. 29: Page 4, line 18, leave out paragraph (b).

Amendment No. 30: Page 4, line 22, after ("mentioned") insert ("in subsection (1) above may include— (a) advances in respect of the acquisition of land by them where he is satisfied that the land has been or is to be acquired by the authority with a view to the construction of a new road or the improvement of a road.")

Amendment No. 31: Page 4, leave out line 23 and insert ("(b)")

Amendment No. 32: Page 4, leave out line 29.

Amendment No. 33: Page 4, line 30, leave out ("(i) may include") and insert ("(c)").

Amendment No. 34: Page 4, line 33, leave out ("(ii) may include") and insert ("(d)").

Amendment No. 36A: Page 5, line 3, leave out from ("(3)") to ("above") in line 4 and insert ("The advances mentioned in subsection (2)(a)").

Amendment No. 38A: Page 5, line 19, leave out ("(a) or (b) and insert ("or (2)(a)").

I had looked at the possibility of tabling a new amendment putting all these together and showing clearly how the clause would stand. Then I found that it was impossible because there were other amendments in the course of the consideration of this clause which are not just a changing of the way it is worded but are changes of a different nature.

We start with Amendment No. 27, which is to leave out, (other than advances in respect of the acquisition of land)". I do not understand why the Bill is drafted in this way. I could have understood it if the clause rested only on subsection (1)(a), but here we have in (1)(a) the words, advances (other than advances in respect of the acquisition of land) taken out. Then go on to (b) which puts back in the words: advances in respect of the acquisition of land". It would be better if we took out the words, (other than advances in respect of the acquisition of land) and then moved the paragraph related to advances in respect of the acquisition of land further down the clause along with the items which are mentioned where advances may be included.

If I can go through them, that is effected by Amendment No. 28, page 4, line 14, which takes out from "authority" to the word "to" in line 17. The next amendment leaves out paragraph (b), and so on. The effect of it is to simplify the reading of this clause. It would have been much easier if I could have put them all together, but because there are other amendments inside the clause I could not have rewritten the clause without then tabling amendments to alter what I had already done. It has to be done on this complicated basis.

Perhaps when he replies the Lord Advocate will make it quite clear why it has been found necessary to do it in the way in which it has been done here by, first, leaving out of account advances in respect of the acquisition of land and then putting in the phrase, advances in respect of the acquisition of land as a new paragraph. It is a complicated way of doing it and most of the amendments which follow arise from changing that particular part. I beg to move.

The Duke of Atholl

Having been a member of the Committee on the preparation of legislation I feel compelled to support the noble Lord. Lord Hughes, in moving his amendment and also the amendments that relate to it. It seems to me that this is an extremely complicated way of expressing a not very difficult idea. I hope that the Lord Advocate will agree to consider it again.

Further, I feel something of an expert on the acquisition of land for new roads; probably I have had more land acquired for new roads in the recent past than anyone else in your Lordships' House. On the whole the system has worked extremely well. But where the system reacts somewhat unfairly is when the line of a road goes through a building, cottage or a farmsteading, because it means that the building has to be replaced before the road is started. One is not paid for what is taken until the road is 90 per cent. completed, when one receives 90 per cent. of the compensation. One is therefore out of pocket for a very long time.

Personally the bank was kind to me when I had to replace a cottage. It was kind enough to loan me the money, but it was for longer than I anticipated because work on the road was delayed frequently and compensation did not turn up until about 18 months after it was originally expected. When I first saw the amendment of the noble Lord, Lord Hughes, I thought it had something to do with this and I was prepared to support it to the hilt. I now realise it does not, hut I still think it is a very good amendment.

Lord Mackay of Clashfern

I am grateful to the noble Lord for explaining his amendment so clearly. I sympathise entirely with the difficulty of making such a clear amendment under the mechanisms we have to use, which sometimes make simplicity look complicated. I understand exactly the result he wishes to achieve. There is, however, a problem which also enables me to answer the amendment in the way he suggested by explaining why we have done it this way.

The reason is that we require to treat differently advances in respect of the acquisition of land and advances which are not in respect of the acquisition of land. The noble Lord will see that in subsection (a) of the provision which deals with advances, other than advances in respect of the acquisition of land, the Secretary of State may make the advance to the authority, or—I refer to line 13 on page 4 of the Bill— make such advances in conjunction with such an authority…to any person". That is the reason why one has to treat the two separately. I hope I have followed through the noble Lord's amendment, but I think I am right in saying that he has not made that provision when one follows his amendments through. He does not distinguish between the acquisition of land and the other provision.

There is much legislation on this subject which we have compressed into this provision, but the existing legislation distinguishes in this way. I believe that this is done as simply as it can be, preserving that necessary distinction.

Lord Hughes

I do not think the Lord Advocate is doing me justice in this matter—quite unwittingly, obviously. I do not alter the language being used. Amendment No. 30 moves the wording under subsection (1)(b) down as part of subsection (2). I have used exactly the same wording. Subsection (2) would read: The advances mentioned…in subsection (1) above may include"— and at that point I bring in paragraph (b) as (a) of the second part; thus the distinction is maintained. What are included in subsection (2) are the details of the advances. The other alterations are only changes in paragraph numbers, and so on. The subsection continues: may include advances in connection with the exercise of any power…include advances for any purpose incidental, or conducive, to the purposes"— and so on. It seemed to me that if there were any reason to elaborate on or distinguish between the type of advances that should be contained in the second paragraph, with the first paragraph referring to advances generally. So I have not in any way departed from the distinction by moving it down the page.

Lord Mackay of Clashfern

As I understand the position, the only way the noble Lord is able to simplify by changing the order is by obscuring the distinction between paragraphs (a) and (b) in the way I have said. That is how I followed his amendments and my understanding is that as his amendments take effect he has not been able to make it clear how the advance to any person, in the case of a conjunction between the Secretary of State and a local authority, is available. Possibly this is a matter we can consider further. But that is my difficulty about his reformulation.

Lord Hughes

I still do not understand because that formulation remains. I have not altered subsection (1)(a); it remains exactly as worded. What the noble and learned Lord the Lord Advocate has said is reasonable. I am sorry that with the intervention of the Christmas and New Year break there has not been an opportunity for consultation, but if the Lord Advocate is saying that he would be willing to look at this with me to endeavour to improve on or to simplify the way in which this clause is laid out, I should he very happy to withdraw the amendment. In the meantime, at the next stage either the Lord Advocate will table an alternative amendment upon which we may be agreed or I may table an amendment on which we can be agreed or, alternatively, if we cannot reach agreement I will table an amendment.

The Duke of Atholl

Will the Lord Advocate also consider my point? It is a serious point that someone has to put up money for rebuilding steadings, cottages or houses when a new road is threatened to go through them and the building of the new road appears often to be postponed, sometimes for up to 18 months or two years. This means that the landowner concerned is very much out of pocket for much longer than he thinks. The reason why I support the first amendment of the noble Lord, Lord Hughes, was that I thought the advance could be made to any person on the acquisition of land when the line of a new road was definitely agreed upon.

Lord Mackay of Clashfern

As my noble friend indicated ultimately, he realised that the amendment did not cover his point which was why I did not mention it especially. I am very happy to look into the matter to see whether anything can be done to deal with the difficulty that my noble friend has experienced.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

Does the noble Lord wish to withdraw Amendment No. 27?

Lord Hughes

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.8 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 28:

Page 4, line 14, leave out from ("authority") to ("to") in line 17.

The noble Lord said: This is an amendment seeking advice from the Lord Advocate about whether these words are necessary. They seem to form one of these phrases added to Acts of Parliament: (whether or not that authority is the roads authority by whom the road is, or as the case may be will be, maintainable) to any person This is one of those points that I feel to be worth considering and testing again at to whether the words are actually necessary.

Lord Mackay of Clashfern

I believe the words in the existing legislation are necessary in the sense that it may be possible. when somebody else is constructing a road, to make an advance of money which, in the opinion of the Secretary of State and the local authority, will provide public benefit more than just to the particular person who is constructing the road—a private landowner, for example, or an industrialist who may construct a road to his factory. By putting out a little extra money public benefit may be obtained, and it is the power to do that which is here in question. I do not think it is exercised very often, but I believe it is an important power to have in such circumstances. I hope the noble Lord will feel satisfied with that explanation.

Lord Carmichael of Kelvingrove

I am pleased with the explanation except that perhaps I could raise one point with the noble and learned Lord the Lord Advocate. When he was speaking, I was thinking in terms of airports and perhaps power stations, and places like that. Would such a road, under other legislation, be classified as a public road or a private road? The noble Lord, Lord Nugent, will be aware that in the other place, during the Committee stage of my own Seat Belts Bill, one Member took an entire Committee stage discussing what were public and private roads. These were exactly the points he made. He did it delightfully, but we lost the Bill because of it. He took two and a half hours to discuss whether a road was public or a private road. If a road was helped financially by the Secretary of State in these circumstances—and an airport or a power station were two of the examples given—would that be classified for the purposes of other legislation as a public or private road, or would it, again, depend upon a lot of other quite consequential things?

Lord Mackay of Clashfern

Among other things, the purpose of this Bill is to try to deal with claims, and a public road will be a road on the appropriate list now, unless it is a special road. The conditions under which it goes on the list are set out. What used to be called "taken over" (and I will come to this later) is now to be clarified as going on the list, with consequences. The mere fact that an advance is given does not necessarily mean that the resulting road will go on the list. It will still enable a public benefit to be conferred if the Secretary of State decides to make such an advance, but he would not make such an advance lightly to any other person. These are the circumstances which might apply; but it would not necessarily mean that the road, when constructed, or the improvement that is being made, when made, would make the road a public road in the sense of its going on the list of roads to be maintained by either a local roads authority or the Secretary of State.

Lord Carmichael of Kelvingrove

With that explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hugheshad given notice of his intention to move Amendments Nos. 29 to 34:

[Printed earlier: col. 980.]

The noble Lord said: Amendments Nos. 29 to 34 were among those to which I spoke, but in view of what the noble and learned Lord the Lord Advocate said in the discussion on Amendment No. 27, I do not wish to move these amendments.

[Amendments Nos. 29 to 34 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 35:

Page 4, line 34, leave out (", or conducive").

The noble Lord said: I have put down this amendment because "conducive" seems to me to be a superfluous word. I am sure the noble and learned Lord the Lord Advocate will be able to explain the reasons for the inclusion of this word, but it seems that "incidental to the purposes mentioned in those paragraphs" would be sufficient. I beg to move.

Lord Mackay of Clashfern

The purpose of including this word is to make it a little more flexible than "incidental". Powers to spend money of this sort are apt to be fairly strictly construed. The word "incidental" is a word which is often used in this connection. For example, things like geotechnical surveys to see whether a road is feasible in a particular position might not be regarded as incidental to the road because you might not ultimately' make the road at all. It is necessary to have fairly wide powers in this connection, and we felt that the word "conducive" was an appropriate word to connote some width in this respect. Landscaping is another possible head which might not be regarded as strictly incidental to the purposes of the road itself although very conducive to having a nice road when it is finished.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 and 36A not moved.]

7.17 p.m.

Lord Hughes moved Amendment No. 37:

Page 5, line 11, leave out ("due").

The noble Lord said: Amendments Nos. 37 and 38 achieve the same purpose. On page 5, starting from line 7, we find the words: any amount by which the annual expenditure incurred by the authority in maintaining the land, during the period between its acquisition and the construction or improvement of the road in question, and in the payment of loan charges accruing due".

I cannot understand what is meant by these words. When I put down my amendment, I could not make up my mind whether to leave out the word "accruing" or to leave out the word "due". Either one or the other seemed to me to serve the purpose. I do not know; but if a sum of money has accrued, it is due. If it is due, it is bound to have accrued. This seems to me once again to illustrate the attempt to cover every possible contingency against some smart alec turning up in the courts and saying, "Yes, the money was due but had not accrued", or, "The money has accrued but is not due". I should like to know the legal reason for putting this cumbersome pair of words together.

Lord Mackay of Clashfern

The first answer is that this is the phrase that we have already. This is in the existing legislation, and we are trying to deal with that. The second point, I think, is that the phrase "accruing due" means more than just accruing, because the theory is that if you have interest on a loan it is accruing from day to day but usually the loan requires actual payments to be made on particular dates.

Let me try to give a very brief example. Suppose that the land for the road was acquired on 1st January, and let us say that the road was constructed even more quickly than is normal and was constructed by 1st April; but the loan was raised on condition that the interest on it is paid six-monthly. Now from 1st January to 1st April the interest has been accruing, but if the payments of interest are to be made only on 31st July and 31st December then interest has not accrued due during the period in which the land has been acquired but the road not yet constructed. So it has accrued but it has not accrued due, the accrual falling due on one of the term days. That is the reason for the phrase.

The noble Lord referred to smart alecs turning up in court. As the noble Lord knows very well from his experience as chairman of a Royal Commission and in other ways, the legislation has to cope with smart alecs. There are always some of these around, however undesirable they may be, and the legislation has to cope with them.

Lord Hughes

The noble and learned Lord has succeeded in convincing me that I left out the wrong word. If I had left out "accruing", the position would have been covered because, on his example, the money would have been due to be paid on 31st July. Incidentally, it would not have been so; it would have been 30th June, because that is six months from 1st January; so his law is better than his arithmetic. By the 30th June the money would be due, so it is the word "accruing" that is not necessary. I therefore hope that at the next stage when I move to leave out the word "accruing" he will than agree with me that we can save two words twice.

Lord Mackay of Clashfern

I am not certain the noble Lord will necessarily achieve simplification that way. Perhaps he will look at it again.

Lord Hughes

I beg leave to withdraw the amendment, on the understanding that I will look at it again and see if this massive alternative form of wording will be more acceptable.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 38A not moved.]

Lord Hughes moved Amendment No. 39:

Page 5, line 20, leave out from first ("by") to ("and") in line 21 and insert ("grant or loan or partly grant and partly loan").

The noble Lord said: Again this is an attempt to simplify matters. I should be interested to hear the justification for the wording that is in the Bill. If we look at the wording in the Bill, we see this: An advance under subsection (1)(a) or (b) above may be either by way of grant or by way of loan, or partly in one way and partly in the other". The effect of these amendments would be that the following wording would appear: may be either by grant or loan or partly grant and partly loan".

I do not see why it is necessary to have the words "by way of" or "partly one way", and so on, repeated. This is again an attempt to make the wording in the Bill nearer to the everyday language that people would use. If the noble and learned Lord the Lord Advocate is not going to accept this, I hope he will not tell me that this is the way it has been done before. That is of no value at all in persuading me. If it is wrong I do not see any reason for accepting that even if it has been done 20 times before. If there is a second reason why these words have to be in, apart from the mere fact that they have been in legislation before, I should be glad to hear it. I beg to move.

Lord Mackay of Clashfern

Perhaps for variety's sake I should say that it appears to me that the present wording is one way in which this could be expressed and the amendment puts it in another way. Both ways are perfectly plain ways of expressing the same idea; but it so happens, the noble Lord will not be surprised to hear, that this phrase is in the legislation that we are seeking to codify. It has been used in Section 8(4) of the Development and Road Improvement Funds Act 1909, so it has been around for a while and that is why we have preferred this particular method. The result is exactly the same.

Lord Hughes

That seems to me a perfectly good reason for accepting the amendment, if fewer words can achieve exactly the same purpose.

On Question, amendment negatived.

Clause 3 agreed to.

Clause 4 [Agreements between authorities]:

Lord Mackay of Clashfern moved Amendment No. 40:

Page 5, line 36, leave out ("(3) to") and insert ("(4) and").

The noble and learned Lord said: This is a drafting amendment to correct an incorrect reference. I beg to move.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Trunk roads]:

Lord Hughes moved Amendment No. 41:

Page 6, line 20, after ("agriculture") insert ("and industry").

The noble Lord said: I beg to move Amendment No. 41. On page 6, line 18, of the Bill it says: after taking into consideration the requirements of local and national planning, including the requirements of agriculture".

I do not object to that but I think we should include industry because very often industries can be very much affected by the way in which roads are planned. I know from my chairmanship of the New Town of East Kilbride that one of the things in which incoming industry is most interested is the road pattern. It seems to me quite reasonable that the needs of industry should be included as they need to be considered just as much as those of agriculture. I beg to move.

Lord Mackay of Clashfern

I am very happy to accept this amendment. May I suggest to the noble Lord that a similar passage occurs in Clause 7 on page 8? Perhaps he might feel able on the next occasion to put down a corresponding amendment.

Lord Hughes

May I say that there are a number of occasions where I have only dealt with the first time that some words appear. I took a rather charitable view of the Government's activities in that if they accepted the amendment they would search through the Bill for all the other places where the same thing has to be done. I am a firm believer in the doctrine, "if you have a dog, don't do your own barking."

On Question, amendment agreed to.

Lord Hughes moved Amendment No. 42:

Page 7, line 12, leave out subsection (7).

The noble Lord said: I would point out right away that this is merely an amendment for the purpose of probing what is intended. It is a rather complicated lot of wording. The amendment seeks to leave out subsection (7). The Bill says on page 7, line 18: shall become a trunk road is revoked or varied by a subsequent order made at any time before the date on which that road is opened for the purposes of through traffic, the revoking or varying order shall not be deemed for the purposes of this section to be an order directing that a road shall cease to be a trunk road.

Can the noble and learned Lord the Lord Advocate explain in simpler language what this is meant to do?

Lord Mackay of Clashfern

As your Lordships will appreciate, when it is decided that what is a trunk road should cease to be a trunk road, a lot of people have to have their interests considered and there is an elaborate procedure for that purpose. The purpose of this subsection is to make it clear that that elaborate procedure is not required if the Secretary of State changes his mind before he has implemented the proposal. Obviously in that situation one does not want to have to go through the elaborate procedure when all that has happened is that he has changed his mind, but it is necessary or desirable that matters should be made public as soon as possible because, as your Lordships know very well, to have the line of a road lying on a map can cause planning blight. The intention is to kill the planning blight at the earliest opportunity without the elaborate procedures that are required for de-trunking, as it is called.

Lord Hughes

I am quite satisfied with that explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hughesmoved Amendment No. 43:

Page 7, line 37, after ("authority") insert ("if they so decide").

The noble Lord said: This is following a point which I raised on Second Reading. As it stands at the present time, Clause 5(9) reads: A local roads authority may contribute towards costs incurred by the Secretary of State in the construction or improvement of any trunk road".

I have put down this amendment to insert "if they so decide", but looking at another part of the Bill I see that I ought to have adopted the wording which the Government have used in various places, which is "if they think fit". If the noble and learned Lord the Lord Advocate is disposed to accept the suggestion, I would beg leave to alter the wording to "if they think fit", because it is desirable when a Bill indicates that discretion might be exercised that the same form of words are used throughout. Otherwise, as the noble and learned Lord would say, you raise a doubt as to why you have used a different form of words.

The indication was given that it would be for the local authority to decide whether they were going to contribute, but, because of the number of times we have been told that in legislation "may" can include "shall", I want to make it quite certain that there is no mandatory requirement on the local authority to contribute, but that they may contribute "if they think fit". I beg to move.

Lord Mackay of Clashfern

I am extremely happy to accept this amendment and I should be very glad if the noble Lord would move it in the form of the second alternative that he used, "if they think fit". If your Lordships are prepared to accept the amendment in that form, I am happy to accept it like that for the reasons which the noble Lord has given. I hope that this is a good spirit in which to come to the dinner adjournment.

Lord Hughes

Is it possible within the working of the House to alter the wording from, "if they so decide" to, "if they think fit"?

The Deputy Chairman of Committees (Lord Nugent of Guildford)

If your Lordships wish, I could accept a manuscript amendment to change the words from, "if they so decide" to, "if they think fit".

Lord Hughes

May I put it like that?

The Deputy Chairman of Committees

I will accept it as such. I will put the amended amendment. The amendment proposed is: Page 7, line 37, after ("authority") insert ("if they think fit").

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

The Earl of Swinton

This might be a convenient time to adjourn for dinner. I beg to move that the House do now adjourn during pleasure until 8.20 p.m.

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

[The Sitting was suspended from 7.33 p.m. until 8.20 p.m.]

Clause 6 [Local and private Act functions with respect to trunk roads]

Lord Mackay of Clashfern moved Amendment No. 44:

Page 7, line 41, leave out (", repair").

The noble and learned Lord said: This amendment is designed to leave out the word "repair" because it is unnecessary in the light of the general definition of "maintenance". I beg to move.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [General provision as to special roads]:

Lord Carmichael of Kelvingrove moved Amendment No. 45:

Page 8,line 6, leave out (", and to be known as,").

The noble Lord said: It seems to me to be superfluous and slightly confusing to say: being roads provided in pursuance of a scheme made under section 1 of the Special Roads Act 1949, shall continue to be, and to be known as, special roads".

I should be pleased if the noble and learned Lord the Lord Advocate could explain whether the words "and to be known as" are really necessary. I beg to move.

Lord Mackay of Clashfern

It may be convenient to say something which bears upon a number of the other amendments which the noble Lord has tabled. As the noble Lord will appreciate, the Special Roads Act 1949 created the power to make roads which were called special roads. They have two main features. The first is that the Public Utilities Street Works Act does not apply. In other words, there is no right for public utility undertakings to put works in. The other special feature is that the classes of traffic may be readily regulated. As the noble Lord knows, the principal examples of this type of road are motorways. It is important that the roads authority should have a strong right to prevent people from putting equipment in.

We want to try to bring together as much as possible of the Scottish roads legislation. That is the purpose. We are not going to have the Special Roads Act but we are going to have to have special roads. The point of the particular matter referred to in the amendment is to allow those special roads which have already been constructed under the Special Roads Act to continue to enjoy the special features that they already enjoy under the régime in this Bill. I hope that explains the situation to the noble Lord.

Lord Carmichael of Kelvingrove

I am grateful to the noble and learned Lord the Lord Advocate for his explanation. It is important to repeat the very important point that these roads have special traffic designations and that there are no public utilities on them. Furthermore, why do we not call a spade a spade and just call them motorways? Although the noble and learned Lord the Lord Advocate suggested that motorways are the best known examples, I am wondering which special roads other than motorways have that designation. Ordinary members of the public speak in a particular way, while legally we speak in another way. It all contributes to the mystique of the legal process. I am happy with the explanation which has been given by the Lord Advocate, but I should be most grateful if he could explain why motorways cannot be called motorways.

Lord Drumalbyn

I should be grateful if at the same time my noble and learned friend could say what their abbreviated name is to be. Will some of the "A" roads be included?

Lord Mackay of Clashfern

They will continue to be named special roads. Normally they will be roads with a very high designation. The Edinburgh outer by-pass is another example of a special road. This is a matter of history. The Special Roads Act came first. The motorways were created under that Act. People called them motorways, but they were examples of special roads. It might have been possible to change the system and to describe them as motorways, but that would have required a great deal of change. We felt that it would be best to incorporate the existing statutory provisions into this Bill and to use, as the simplest form of continuation, the designation which had previously been used.

The Earl of Selkirk

What really is the difference? I found it very difficult to understand what was meant by a special road. It is referred to rather obliquely throughout the Bill. It means nothing to me except traffic control. Is there any distinctive difference between a special road and any other road, or is it simply a question of the continuation of a name because it is simpler?

Lord Mackay of Clashfern

The situation is that up to the time of this Bill the special road was provided under the Special Roads Act 1949. Motorways are the principal examples but not the only examples of roads which might he constructed under these powers. A feature of the roads which have been referred to is that you can lay down the classes of traffic which may use them. Pedestrians can be excluded, for example. The other important point is that the public utilities street works code does not apply. Therefore, there is a much stronger right for the road authority to prevent the road being dug up for the sake of public utilities. These are the features of the special road, and that legislation has been in place since 1949. The intention of the Bill is to bring together the legislation. We are not making changes for change's sake. We are trying to make it as simple as possible, but that is a special category of road which has proved its usefulness and we regard it as being important to continue that feature.

The Earl of Selkirk

Then are the rules for a special road different from those for "M" roads? Then, are special roads marked as such? Personally I have never seen such marking.

Lord Mackay of Clashfern

My noble friend has misunderstood, and I am sure that is my fault. An "M" road is simply one class of special road. The main example of a special road is what has been called a motorway. Motorways were constructed under the Special Roads Act's powers and they are the principal examples. The special roads on which the noble Lord will have travelled will almost all have been motorways. But the Edinburgh outer by-pass is another example. Strictly speaking, it is not a motorway and it does not conform with all that is required of a road to be classified as a motorway. But it is a special road. It has the features that the traffic on it is restricted to particular classes and that the public utility street works code does not apply to it.

The Earl of Selkirk

That means that the rules for the traffic are precisely the same?

Lord Mackay of Clashfern

That is true so far as the traffic's use of the road is concerned but the traffic which may use the road can vary according to what the Secretary of State thinks appropriate.

Lord Drumalbyn

I think I have understood that, but would it not be possible to take this opportunity to bring in something that the public could understand without an explanation as to what is an "M" road that is not a special road? One does come across examples of where an "M" road ceases to be an "M" road, and it is not quite clear what happens then and what the difference is; whether a cyclist can use it or not. I know that there are general notices to indicate whether cyclists or motor-cyclists can use the roads, but have we not gone long enough now to have a special classification for a special road that is not a motorway?

Lord Mackay of Clashfern

The number of these roads is sufficiently small to make it unwise to make more numerous statutory provisions than are necessary. So far as road construction is concerned and special provisions of that kind, there is no distinction between a special road and a motorway from the point of view of relevance under this legislation. So far as I can judge, what we have done is the most appropriate action in the circumstances, and I hope that my noble friend is able to agree with that explanation.

Lord Carmichael of Kelvingrove

Although I am greatly in sympathy with the noble Lords who have spoken and who hope that the name could be changed to "motorway", which seems the intelligent thing to do, I accept the argument of the noble and learned Lord the Lord Advocate. I can quote the example of the Glasgow ring road, because parts of it are not a motorway and are subject to different speed limits and other regulations. While the public may continue to call them all motorways, I can see the necessity for the legal formula in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 46:

Page 8, line 16, leave out subsection (4).

The noble Lord said: The main purpose of this amendment is to try to ascertain exactly who else but a local authority could be a special road authority, unless this is a throwback to the days when roads—particularly those in the south—were built by agencies in the form of road construction units as against the old local authority. Other than that, I find it difficult to understand how else a special road authority could be anything other than the local authority for the particular area through which the road passes. There may, of course, be a handover period during which the Secretary of State himself may be involved before the road is ultimately handed over to the different local authorities who are responsible for each section of it. I may have all this wrong but this seems to be a slightly confusing subsection and I hope that the noble and learned Lord can help me with it.

Lord Mackay of Clashfern

This is just to provide the definition of the special roads authority as being the roads authority responsible for these particular special roads. It may be the local roads authority, or it may be the Secretary of State. In the case of the motorways, it is the Secretary of State, because sometimes local authorities act as agents for him in a particular area—indeed, very often they do. But the roads authority for most of the motorways—indeed, I believe all the motorways—is the Secretary of State. That is the reason for this subsection.

Lord Carmichael of Kelvingrove

I thank the noble and learned Lord the Lord Advocate for that explanation, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 47:

Page 9, line 23, leave out first ("special").

The noble Lord said: It may be for the convenience of the committee to consider Amendments Nos. 47, 48, 49 and 50 together.

Amendment No. 48:

Page 9, line 25, leave out ("special")

Amendment No. 49:

Page 9, line 26, after ("the") insert ("special")

Amendment No. 50:

Page 9, line 29, leave out ("special")

However, after the explanations given by the noble and learned Lord the Lord Advocate on an earlier amendment,. I propose not to move those amendments.

[Amendments Nos. 47 to 50 not moved.]

Clause 7 agreed to.

Clauses 8 to 10 agreed to.

Clause 11 [Classification of roads]:

8.36 p.m.

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Hughes

In clause 11 on page 12 of the Bill, subsection (1) makes reference to a "principal road". In clause 68 there is a reference to a "main road". But I cannot find in all these descriptions of roads in the interpretation clause any statement as to what a principal road is or what a main road is. It may read very simply, but if one does not know what a principal road is, it does not make much sense. It would seem to me that Clause 11 as it stands would be perfectly acceptable if there was a definition somewhere of what a "principal road" is. Similarly, there is the description of a "main road" in Clause 68 which I could not find defined anywhere, either. I do not guarantee that those are the only two places where these words occur; having found one of each, I thought that was enough to go on with.

Lord Mackay of Clashfern

The purpose of this clause is to give the Secretary of State power to classify a road as, among other things, a principal road. I am not sure that anything more is required. It is for the Secretary of State to decide whether he calls a road a principal road. The classification is that which the Secretary of State decides should be assigned to the road. The purpose of the clause is to give proper power to make such classification both in relation of the provisions of this Bill and to those of any other enactment which refers to a road classified by the Secretary of State.

Lord Hughes

On that basis, may I ask the noble and learned Lord what is the difference between a principal road and a main road? On page 42 there is a reference to a "main road". It may be all very well for the Secretary of State if he is the only person in Scotland who knows what a principal road is and if he is also the only one who knows what a main road is—but some of the rest of us would like to be as well informed on that matter.

Lord Mackay of Clashfern

I think the distinction is that the "principal road" is a type of classification, and if the Secretary of State exercises his power to classify it as a principal road it will be that for the Secretary of State and for all of us.

So far as a "main road" is concerned, I think that is intended not as a classification of the road. That is a description of a particular function that the road possesses, and of course if a road is a main road in an important sense the Secretary of State may decide to classify it as a "principal road". This clause is for classification, and that is the reason that it is in these terms.

Lord Drumalbyn

Will the Secretary of State automatically be liable to maintain it if it is a principal road; or who will?

Lord Mackay of Clashfern

One of the consequences of classification may be the way in which the road falls to be maintained. That is one of the reasons why there is a provision for classification, and different classes of grants may arise according to whether the road is classified in a particuar way.

The Earl of Selkirk

May I as: does this make any difference to motorists or road users? Is there any need to mark it to distinguish it as a principal road, or do you behave in exactly the same way as you would on any other road?

Lord Mackay of Clashfern

Like most of the provisions of this Bill, the main function is to regulate the provision of the road rather than the traffic on the road. The Road Traffic Regulation Act is the one that deals with the use of the road by traffic. The principle purpose of this legislation is to deal with the construction, the financial arrangements for the construction and for the maintenance and so on.

Lord Hughes

On page 91 we have a definition of "private road". It is a beauty. It says: 'private road' means any road other than a public road". We have a definition of "public road". It means a road which a roads authority have a duty to maintain". Then we have a definition of "road": 'road' means, subject to subsection (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof and a proposed road". I think you are taking a "proposed road" out later on. It would not seem to me to be harmful if we had a definition of what a "principal road" is, if the Secretary of State decides that there should be such a thing, and that we should also have a definition of a "main road". If it is undesirable to define "principal" and "main" road, cannot it be defined in one of the other terms found suitable in other parts of the Bill? Why should it not just be a "private" road or a "public" road as the case may be?

Lord Mackay of Clashfern

I sought to explain that. The distinction between a public road and private road is that the public authority has a duty to maintain the public road. Any other public right of way is a private road. This clause is dealing with the classification of roads, which is a different matter and may have a bearing on the financial arrangements made between the Secretary of State himself and local authorities for the maintenance of the road. It is not a distinction of the same kind as the distinction between "public" and "private".

I find it hard to see how the Secretary of State could do more than just say that a particular road is classified as a "principal" road. The purpose of this clause is to give him that power. If it would help, I am sure one could add the definition that a "principal road" is one designated as such by the Secretary of State under Clause 11. But I doubt, with great respect, whether that is necessary.

Lord Hughes

Well, again I come back to Clause 68—the stopping up provisions. It says: to stop up any private means of access to land or premises adjoining or adjacent to land comprised in the route of the special, or as the case may be main, road". This seems to be saying, on the one hand, a special road and, on the other hand, everything else is a main road. Two terms are used, and the thing that first occurred to me was what is the difference between a "principal road" and a "main road". If there is a difference between them, what is the difference? If there is no difference between them, why cannot they be described by the same term?

Lord Mackay of Clashfern

The answer is that a main road may be a principal road if it is classified as such by the Secretary of State. So far as I can see, the principal function of that classification is to affect the burden of maintenance. The Secretary of State may pay different grants in respect of different classifications of roads, and this clause gives him the power that enables him to do that. It is a different type of distinction from the other distinctions to which the noble Lord has referred.

Lord Hughes

Well, this will be my last shot. I know that very often when one seeks to elaborate on the language used we are told that the more you define the more you endanger the general principle. But when you have these various definitions of roads which at first glance would cover everything, and then you have two other adjectives applied which are not interpreted in any way, I would suspect there is a possible case where somebody goes to the court and says, "I am not covered"; when the judges have to look at the Bill there is nothing in it to help them to say what is a "main road" and what is a "principal road". From what the noble Lord the Lord Advocate has said, it would appear to be perfectly possible to define these roads in such a way as to remove any doubt.

Obviously one of the things we want to do at the present time, in view of the mass of litigation that takes place, is to cut down any possibility of creating new sources of it. I would be content to leave it if the Lord Advocate would agree to have a look at the matter and see if it can be defined without removing one set of problems and creating another.

Lord Mackay of Clashfern

Certainly I will look at it. I have sought to explain the situation. But I will read what the noble Lord has said and look at it again in the light of that.

Clause 11 agreed to.

Clause 12 agreed to.

Clause 13 [Making up and maintenance of private roads]:

Lord Carmichael of Kelvingrove moved Amendment No. 51:

Page 14, line 9, leave out ("paving, lighting or drainage") and insert ("or paving").

The noble Lord said: This again is an amendment seeking the guidance of the noble and learned Lord the Lord Advocate. The question I would like to ask him is, under what circumstances a local authority may be liable to install lighting and drainage for a private road, which one would assume would have been built—at least the drainage would—as a necessity during construction? The lighting would be something that would be decided by the local auhority later, because they would in any case require in a populous area to provide lighting. It would appear that these words would be superfluous. Either it would need to be provided automatically or it would be provided in the course of the original construction work. I would be pleased if the Lord Advocate would clarify this. I beg to move.

Lord Mackay of Clashfern

This clause is designed to deal with the situation in which the authority is faced with a private road and in which there is a question of making it into a public road. The general situation is that under Clause 13(1) the local roads authority may by notice to the frontagers of a private road require them to make it up and to maintain it at such reasonable standard as may be specified in the notice. There are provisions about appeals.

That is the basic idea: the local roads authority may require the people whose road it is to do this. It is a private road with a public right of way over it; the ownership is private, the resonsibility for maintenance is private. There is a right of way. The local authority may require that road to be made up to a reasonable standard. We say in the Bill that "reasonable standard" may include lighting or drainage. There are some circumstances in which it might be unreasonable to require the road to be lit, but there are other circumstances in which it would be reasonable to require it to be lit or drained. If the noble Lord's amendment is accepted the local authority would be unable to require lighting or drainage to be incorporated in the road. I think the noble Lord will be the first to realise that in some circumstances it would be most unfortunate to have a road, as he envisaged, in a populous area without the authority being able to require that it be lit. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment.

My understanding is that "drainage" is covered in existing legislation. I think we have changed the word and that "channelling" was the word used in the Burgh Police Acts. But "lighting" has been added in the light of the Government's acceptance of the recommendations made by the Committee chaired by my noble friend Lord Stodart of Leaston that lighting in some circumstances may be desirable and that local roads authorities should have the power to require lighting.

8.50 p.m.

Lord Carmichael of Kelvingrove

I thank the Lord Advocate for that explanation and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 52 not moved.]

Lord Hughes moved Amendment No. 53:

[Printed earlier: col. 683.]

The noble Lord said: Clause 13(8) contains the definition of "frontager" and I believe I spoke to this on Second Reading. I draw attention to Clause 15(2) which states that "frontager" has the same meaning as that in Clause 13(8). Moving on to Clause 20, this includes in subsection (2)(b)(i) that notice be intimated to, the owners of all lands and heritages which would front, abut or be comprehended in".

In this case the Lord Advocate explained to me what was meant by "comprehended in" and I do not object to that particular phrase being there. But I have Amendment No. 134 where I propose the inclusion in the interpretation clause the definition: ("frontager' in relation to a road means the owner of any lands and heritages fronting or abutting or comprehended in that road;')".

Therefore, it takes in to the interpretation clause the various descriptions which are used throughout the Bill. If that can be accepted it would avoid the very undesirable practice of having definitions at different parts of the Bill. Amendment No. 53 would take out subsection (8) and the reference in Clause 15(2). The language in the Bill would otherwise not be altered. The different meanings that are attributed would be related to the definition of "frontager" in the interpretation clause. I beg to move.

Lord Mackay of Clashfern

I am obliged for that clear explanation. My way of looking at this is that I think the word "frontager" appears only in Clauses 13 and 15. In that situation—and it is a matter of judgment—it is not usual to have it in the interpretation clause unless the word occurs more often. It is a perfectly acceptable practice, where a word is used only sparingly, to put the interpretation in close proximity to it.

On the second point where this arises, in Clause 20, "frontager" has a different meaning. It is not right to say that it is the same, because "frontager" in the case of the actual road is as described in Clause 13(8), which is the subject of the amendment, but where there is not yet a road it is not quite the same thing. One is not "fronting" or "abutting" on a road but "fronting" or "abutting" or "comprehended in" a place which may ultimately be a road. There is a difference.

The noble Lord proposed a definition of "frontager", but his definition does not apply in the sense that it includes all the various possibilities. Stricly speaking, the meaning of the word "frontager" is not quite the same where there is a road and where there is not yet a road. I feel that it is necessary as a matter of proper drafting to have a different definition where the as yet unformed road is concerned. I hope that in the light of those explanations the noble Lord will feel able to withdraw his amendment.

May I take it, to avoid repetition, that any matter raised by the noble Lord, or any other noble Lord, will be considered by me to see whether any improvement can be made before the next stage. That applies to this amendment. However, as at present advised it seems to me that what we have in the Bill is perhaps marginally better than what is proposed.

Lord Hughes

In the light of what the Lord Advocate has said, I accept that there is some justification for leaving Clause 20 as it stands because it relates to the possibility of a road which might not come into existence. While he is quite correct in the references in Clauses 13 and 15—those are the only places with a reference to "frontager"—there are other parts which refer to "fronting" or "abutting". If one defines "frontager" in the way that I suggest, and leaving out the part about being "comprehended in", by the same token one is making perfectly clear what is meant by "fronting" or "abutting". So although the term "frontager" is not used, a definition of it including lands and heritages which front or abut, makes it perfectly clear what "fronting" or "abutting" in the other clauses mean.

Therefore, I shall ask leave to withdraw the amendment. However, it will be on the basis that at the next stage I shall come back to the matter but leaving out the phrase "comprehended in". I think it is generally agreed that if one can find all the definitions in one place it is very much easier, because the definition which is the easiest to lose is the one contained somewhere else in the Bill. On that basis I beg leave to withdraw the amendment. I shall not be moving the others which hang on it but will resubmit them in diminished form at the next stage.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 54:

Page 15, line 3, leave out ("Secretary of State") and insert ("sheriff").

The noble Lord said: In moving Amendment No. 54, it may be for the convenience of the Committee if Amendment No. 55 is discussed at the same time.

Amendment No. 55: Page 15, line 5, leave out ("Secretary of State's") and insert ("sheriff's").

This is a simple amendment suggesting that to ask the Secretary of State to adjudicate on a subject such as the making up of a private road is using a sledgehammer to crack a nut. In the belief that the Secretary of State is, or at least should be, a very busy man, we feel that, as there are many more of them, the sheriffs should be able to stand in and make the decision. We ask that "sheriff" be substituted for "Secretary of State". The same applies in both amendments. I beg to move.

Lord Mackay of Clashfern

The existing legislation dealing with this point allows an appeal to the sheriff. It was a fairly narrow balance as to whether "sheriff" should be left, or whether "Secretary of State" should be substituted. The view was taken that if the Secretary of State was the appellate tribunal, it might lead to greater uniformity. The balance is extremely narrow. In view of the argument put forward by the noble Lord, Lord Carmichael of Kelvingrove, and the feeling that he has expressed on the matter, I feel disposed to accept this amendment and the following one.

Lord Drumalbyn

I wish to express my satisfaction with that decision, which I am sure is the right one. I am sure that this is a local matter.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 55:

[Printed earlier.]

On Question, amendment agreed to.

9.1 p.m.

On Question, Whether Clause 13, as amended, shall stand part of the Bill?

Lord Hughes

I have a question. On page 14, subsection (3) (b) states: a scheme whereby the cost is to be apportioned among the frontagers (being a scheme which is equitable in the opinion of the authority and which describes for each frontager the proportion of cost to be paid by him)". On the previous two amendments the Lord Advocate said that one of the reasons for "Secretary of State" was that it was desirable to have uniformity, but as the issue was finely balanced he was content with "sheriff". I wish to ask about the question of uniformity.

Costs could be apportioned in a variety of ways. A fairly common way is to take the length of frontage and total cost, and if one man has 30 feet out of 1,000 feet he pays 30 one-thousandths of the cost of the road. Another way is simply on the number of the houses, when each house pays its share. That method is not commonly used; it could he very unfair. One person may have an enormous house with a frontage of 150 feet, and the man next door may have a little cottage with only 25 feet of frontage. There is no reason why they should pay the same. I do not think that is a starter. Another fairly common method is on the basis of rate able or equivalent value. But the most frequently used method is on the length of frontage, and that will probably continue.

If the matter is left to the discretion of authorities and no guidance of any sort is given, people in one area might feel hard done by if they learn that in another area a different method has been used and on that basis they would have been better off. People always look for comparisons to their advantage and not to their disadvantage. I do not think it is possible to state in the Bill the method of apportionment so that every authority works on the same basis, but I should like the Lord Advocate to consider this. It is common, after a Bill becomes an Act, for administrative guidance to be given to authorities on how to act. I should be content if these two methods, street frontage and rateable value, were referred to, perhaps going so far as to recommend—but not taking the discretion away from local authorities—that the fairest method is street frontage.

I do not expect the Lord Advocate now to say, "Yes, administrative guidance will be given". It is not his department that will be handling it; it will be the Secretary of State. But I hope that thought can be given to that. It would create a better sense of fairness as between one authority and another if as far as possible they apportioned on the same basis. Having said that, I am content that the clause should stand as it is.

Lord Drumalbyn

I wish to make two observations on what the noble Lord, Lord Hughes, says. If guidance were given by the Secretary of State, how easy or difficult would it be for the sheriff to interpret that guidance? How would he find out from other areas what the norm was? Would it make sense for the Secretary of State in a matter of this kind to consult the convention and get a consensus? I should have thought that was a good idea. It would not bind the local authority to a particular decision in a particular case, bearing in mind the variations in the circumstances. That seems the sensible approach, and in the end to leave the decision to the sheriff.

Lord Hughes

I do not see where the noble Lord, Lord Drumalbyn, gets his reference to the sheriff. Unless I have missed it, I do not think that there is any appeal against the apportionment. The sheriff would not come into the matter.

Lord Mackay of Clashfern

The appeal provision is in relation to the notice which is served under subsection (1); that is, the appeal provision in subsection (9). Subsection (3) states that the notice shall, without prejudice to the generality…specify". the scheme, among other things. The basis of the apportionment is a matter on which the frontager may appeal to the sheriff. That is one reason why, as I said, we thought that possibly the Secretary of State was the best person to whom to appeal, but in the circumstances your Lordships felt differently.

The best that we can do is to emphasise equity. It is a scheme which is to be "equitable" in the circumstances. Certainly the Secretary of State will consider what is being said, but I would hope that among themselves local authorities would be able to Arrange generally what they thought was an equitable way of doing this. Indeed, the noble Lord, Lord Huges, says that in his experience one method is pretty common as it is.

Lord Hughes

Yes, I agree. Whatever method is adopted will be equitable in the area in which it applies. But what I was concerned about was that if different methods were adopted, some people would say, "This isn't equitable. They have done it the wrong way. I am paying an awful lot more than I should have done, because in the adjoining region they have done it another way and on that basis I would have been paying X pounds rather than what I am paying". So I think that there is a point to consider here.

I rather like the suggestion of the noble Lord, Lord Drumalbyn. Perhaps the convention can discuss the matter and agree what is to be the preferred method, but with an alternative method in exceptional circumstances. I think that that is the most that can be expected. If that were done, and if every attempt were made to achieve the greatest degree of uniformity, it would certainly diminish any grievance which an individual might have that he had not been dealt with under the other method. If when the Bill becomes law the Scottish Office ensures that this is one of the matters to be discussed with the convention, that will certainly meet my point.

Clause 13, as amended, agreed to.

Clauses 14 and 15 agreed to.

Clause 16 [Security for private road works relating to housing]:

The Deputy Chairman of Committees (Lord Hayter)

I am instructed that if Amendment No. 56 is agreed to, I cannot call Amendment No. 57

9.10 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 56:

Page 16, line 11, leave out from ("obtained") to end of clause.

The noble Lord said: This amendment is meaningless unless we take with it Amendment No. 57: Page 16, line 12, leave out paragraph (b).

The purpose here is to elicit from the Government as much information as is possible on the question of what has become popularly known as the road bond that will be required before builders commence a new development. The Scottish Housebuilders' Association is particularly concerned about this matter, and at another level the population in general is concerned because it increases the cost of the house to the ordinary buyer. Nowadays in many cases this applies in particular to the first-time buyer, who in the initial stages is looking for as low a cost as possible. While the Scottish Housebuilders' Association wishes to have the cost reduced as a selling point, we wish to have it reduced principally because it is an unnecessary additional cost to the purchaser in which he should not need to become involved owing to any mistakes which we might have made in this House or in another place.

So we are concerned to ensure that the cost of providing the bond is kept to the absolute minimum. The belief is that this could be achieved by ensuring that the bond is not required prematurely, and, further, that it is released at the earliest opportunity once the roads have been satisfactorily completed. In this connection there is concern that in certain cases local authorities might use delaying tactics, though I do not think that my own local authority or that of my noble friend Lord Hughes could be accused of that. Therefore, Clause 16(4), which enables the local authority, the builder, or anyone involved in a dispute, to refer the matter to an arbiter is of vital importance.

It is important that we straighten out such questions as the date from which a bond should be required. I believe that in Scottish law at any rate no purchaser is at risk until a missive has been signed and work on the dwelling house has commenced, or perhaps in many cases work has actually been completed. Clause 16(2) states that the erection or alteration shall not commence until a bond has been obtained. It is not clear that that concerns only work on the dwelling house itself, and it may be interpreted that the bond is required even before the road work commences.

I am slightly nervous about the whole question, since I recall that when I was much younger, when many private housing estates were built between the wars, the roads were not made up until many years afterwards. There were one or two cases in which occupiers were left to fill in the roads, and there were appalling conditions. Bottoming was impossible, and tons of stuff were thrown in so as to form a surface.

I understand that a working party involving the department and the builders is active in this matter. That is good. The date of the bond is important. It is necessary that there should not merely be an assurance but some sort of statutory assurance that the bond will be surrendered to the builder and therefore, at second-hand, to the owner. We hope that the savings will be passed on to the new mortgagor as quickly as possible.

This is largely a probing amendment. I recognise that there is a long way to go. The best course, following what the Lord Advocate has to say, may be to discuss the matter again on Report. I would, however, be pleased to know whether the Lord Advocate can give some idea of how he proposes to tackle what is an extremely difficult and thorny problem.

Lord Mackay of Clashfern

The noble Lord, Lord Carmichael, has explained that the purpose of the amendment is not really to delete this part of the Bill but to inquire into our more detailed thinking about it. As the noble Lord said, a power of this kind is extremely important in order to prevent the kind of serious difficulty to which he referred where people have purchased houses and are possibly living in the houses but the roads are never made up, even when there is an obligation in the missive to make them up, because the developer has gone bankrupt or something else of that nature has happened. That is a serious risk. These provisions are intended to provide for regulations whereby the risk may be obviated.

The details of the regulations, as the noble Lord said, are being considered by the Scottish Office in discussion with house builders, COSLA, building societies and others. The work on the detailed regulations will continue. I can assure the noble Lord that the Secretary of State wishes to make regulations that secure that the kind of difficulty to which he has referred does not arise, making the minimum of interference with what otherwise would go on; in other words, he will do his best to secure that the regulations are as free as possible from any unnecessary burden on the developers or the house buyers. The idea is to secure for the house buyers what they need in the way of road construction—that and nothing more. The points that the noble Lord has made will be taken fully into account in framing the detailed regulations.

Lord Carmichael of Kelvingrove

I am grateful to the Lord Advocate for his explanation, knowing that he will do what he can to try to meet the points that I have raised. They were raised with me by local authorities and by the building industry in Scotland. On the promise that he will look at the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Hughes

Subsection (3)(b) deals with the consequences of committing an offence and states, is liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine". I think that I am right in assuming that where the subsection mentions a fine, it is without a limit being fixed. However, in Clause 21, dealing with offences in relation to the construction of new roads, the terms used are a person who, commits an offence, which shall be triable either summarily or on indictment". So far as I can see, this would accomplish the same end as the language used in Clause 16—up to the statutory maximum or, on indictment, to an unlimited fine. Why, in these two clauses, are the references to the penalties attaching to the committing of an offence, described in these different ways? Would it not be desirable that either one or the other should stand in both cases?

Lord Mackay of Clashfern

I think the situation is that the provision to which the noble Lord has referred in Clause 16 is one that does define the penalty. The provision in Clause 21 does not fully define the penalty. It only makes available the two modes of trial, either summarily or on indictment. Then, the situation is provided for in Schedule 7, under the head, "Penalties for Offences", that, on summary conviction, it will be the statutory maximum, and upon conviction on indictment, a fine. So the extra words that he is looking for so far as Clause 21 is concerned are provided by Schedule 7. There might be something to be said for doing the same so far as the clause which we have just been looking at is concerned, and I shall certainly be happy to consider that.

Lord Hughes

From the way in which the noble and learned Lord has explained what would happen under Clause 21 we are brought back to the wording where the maximum would be the maximum statutory penalty and on indictment an unlimited fine. I think that there is merit in using them both. Incidentally, is there such a word as "triable"?

Lord Mackay of Clashfern

I am certainly under the strong impression that there is such a word, and your Lordships House has certainly passed a considerable amount of legislation in which that word has been used. If it did not exist before, it certainly exists by now.

Clause 16 agreed to.

Clause 17 [Power of local roads authority to take over footpaths associated with development]:

[Amendment No. 58 not moved.]

Clause 17 agreed to.

Clause 18 [Construction of new roads by Secretary of State as roads authority]:

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 59:

Page 18, line 12, leave out subsection (3).

The noble Lord said: I think the noble and learned Lord the Lord Advocate has already dealt fully with the special roads, and, therefore, I shall not move this amendment.

[Amendment No. 59 not moved.]

Clause 18 agreed to.

Clause 19 [Construction of new roads by local roads authority]:

Lord Carmichael of Kelvingrove moved Amendment No. 60:

Page 18, line 16, leave out ("requisite") and insert ("necessary").

The noble Lord said: This is one of those amendments to which we are becoming accustomed. It is to leave out "requisite" and insert "necessary". It seems that "requisite" is unnecessary in the context of the Bill, and unless there is some very obscure legal requirement I cannot see the reason for using a word that is slightly less common, in the circles in which I move, than the word "necessary". I beg to move.

Lord Mackay of Clashfern

The word "requisite" is the word that has been chosen. I think it is a common word. It may not be quite so common in the circles in which the noble Lord moves as the word "necessary", but it is a perfectly common word, and is well understood. The fact is—and this is the second reason—it is the word which has been used in the corresponding section of the Roads and Bridges (Scotland) Act since 1878. I could well see that if the noble Lord was drafting the Bill he might have chosen "necessary" and I would not feel able to press for "requisite" as an alternative. But having chosen "requisite", perhaps the noble Lord will allow us to retain it.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

The next amendment is No. 61. I have to point out that, as printed in the Marshalled List, in the penultimate line, after the words "the local roads", the word "authority" should be added.

Lord Mackay of Clashfern moved Amendment No. 61:

Leave out Clause 19 and insert the following new clause:

Construction of new roads other than special roads by local roads authority; and entry of such new roads and of special roads in list of public roads.

("19.—

1. (1) Without prejudice to section 7(3) and (5)(a) of this Act, a local roads authority may construct in their area any new road, other than a special road, which they consider requisite.
2. (2) When such construction by them as is mentioned in subsection (1) above or in the said section 7(5)(a) is completed, the local roads authority shall enter the road (or as the case may be special road) in their list of public roads.

")

The noble and learned Lord said: I am obliged to the Lord Chairman for pointing that out.

This is a rewrite of the existing Clause 19 to make it clear that, in the same way as special roads are excluded from the Secretary of State's powers to construct roads under Clause 18, so it is necessary to exclude special roads from local roads authorities' powers to construct roads under Clause 19. So this corresponds to the one to which we looked a minute or two ago. I beg to move.

On Question, amendment agreed to.

Clause 20 [Requirement of consent for new roads built other than by roads authority]:

Lord Hughes had given notice of his intention to move Amendment No. 62:

Page 18, line 28, leave out from ("the") to ("in") in line 29 and Insert ("frontagers")

The noble Lord said: This amendment was covered by points we have discussed and which the Lord Advocate and I shall be considering. I do not wish to move the amendment at this stage.

[Amendment No. 62 not moved.]

9.26 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 63:

Page 19, line 5, leave out from ("heard") to end of line 6.

The noble Lord said: Whenever I see this phrase "by them as regards his application" I always think of a famous series in Private Eye. It seems quite superfluous when we are really considering that "the authority shall allow the person applying for the consent an opportunity to be heard". I am sure he would be ruled out if he tried to speak about anything else other than the subject for which he had asked to be heard, which is about his application. It is a small point, but one of the little points that make the law more wordy and terrifying for people like me who have occasionally to read it. I hope that the Lord Advocate will make what is a minor but a helpful concession. I beg to move.

Lord Mackay of Clashfern

We are anxious naturally to reduce the volume of the legislation consistent with clarity. But it is important that the right to be heard is a right to be heard by the roads authority and nobody else—not a deputation or an official of the roads authority. It is a right to be heard by the roads authority, and I regard that as important. The fact that the Bill says, "as regards his application" is possibly wise having regard to how far in advance the phrase is used.

If the noble Lord feels able to accept that, I should be happy. Obviously how far one has to go to obtain precision is a matter of judgment. I have discussed this amendment with the draftsman because I had sympathy with the noble Lord's desire to shorten the subsection. I thought possibly the words "as regards his application" might be deleted. Having considered it carefully with the draftsman, I think it is better to have the phrase in. But the words, "by them" are important, so I hope in the light of this explanation that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

I thank the Lord Advocate for that explanation. I agree that the amendment would have been better had it been only to delete "as regards his application". "By them" is rather important. I still feel that "as regards his application" is superfluous and almost lumber. It is not a point that is worth taking any further. With the hope that the Lord Advocate will feel able to do a little tidying up and to make a few concessions by the next stage of the Bill, I would beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Clashfern moved Amendment No. 64:

Page 19, line 21, after second ("the") insert ("local").

The noble and learned Lord said: This is a drafting amendment to make it clear that it is a local roads authority, because construction consent applications are made only to local roads authorities, and for accuracy it is better that we should put this in. I beg to move.

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 agreed to.

Clause 22 [Power to stop up or temporarily close new road where construction consent absent or not conformed with]:

Lord Mackay of Clashfern moved Amendment No. 65:

Page 19, line 39, after ("person") insert ("(other than a roads authority)").

The noble Lord said: This amendment is necessary to make it clear that the local roads authority's powers in Clause 22 cannot be exercised in relation to a road built by the Secretary of State who, as a roads authority himself, does not require construction consent. It makes Clause 22 consistent with Clause 20. I beg to move.

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 [Alterations of levels of public roads]:

9.31 p.m.

Lord Hughes moved Amendment No. 66:

Page 20, line 13, leave out ("raise or lower or otherwise").

The noble Lord said: The heading before Clause 23 concerns "levels". The clause says: Subject to any order under section 9 or 12 of this Act, the roads authority may raise or lower or otherwise alter, as they think fit, the level of a public road".

My amendment seeks to leave out everything after the word "alter". I think that covers everything. I cannot think of much that can be done to alter the level of a road other than by raising it or lowering it, although it was pointed out at an earlier stage that the alteration might include doing both. It may be raised at one point and lowered at another. That happens often, if one takes the opportunity to eliminate unnecessary rises in a road, it may be accomplished by filling up the adjoining bit as well. However, that would be altering the road. This is part of the campaign upon which we are unashamedly embarking. We shall continue to try to cut out unnecessary language. The next stage is to put it into readable English, but that is too big a hurdle to attempt at this time. I beg to move.

Lord Mackay of Clashfern

The purpose of the phrase which is attacked in the amendment is to make it clear that the clause includes powers to change the banking or camber of a road as well as raising or lowering the full level of the road as a whole. This is based on a modern provision, the Roads (Scotland) Act 1970. The danger is that if one misses this out at this stage comparison might be made with the previous fairly modern legislation and it might be thought that the intention was somewhat to restrict the power of the road authority.

Altering the camber of a road may be of critical, importance in some situations. If there was any doubt about the power of the authority to alter the camber or banking of a road that would be rather unsatisfactory. This is the sort of thing that is contemplated and I hope that the noble Lord will feel that his campaign may be well directed otherwise, but perhaps in this situation he may feel able to allow the words to stand.

Viscount Hanworth

Time and again—I think it was on another occasion about this time of night—we come to a conclusion that there was possibly something in a Bill which was unnecessary. But in the main we criticise Bills because they are not clear. We cannot have it both ways. If there is a certain redundancy and it might make it a little clearer we should leave the Bill alone. With the number of amendments we have to deal with, I do not think it is very profitable to raise this sort of amendment.

Lord Drumalbyn

I am sure that the Lord Advocate is absolutely right in leaving room to alter the camber of a road, but I wonder whether he has thought just how far the words, otherwise alter, as they think fit could go. We have had legislation about bumps in the road and things of that sort. I wonder whether we have got it quite right and have not made it possible for a local authority which has some unusual ideas to exploit them to the public detriment—not intentionally, of course.

Lord Mackay of Clashfern

This legislation has been in place for some time. These words, as I have said, were in the Roads (Scotland) Act 1970 and no such difficult consequences have arisen. It seems to me a reasonable provision and local authorities are given powers to use reasonably. The courts certainly would be prepared to curb unreasonable use of statutory powers.

Lord Hughes

When the noble and learned Lord was making his first reply, he gave as an example altering the camber of the road. I must stress the word "altering". If you alter the camber of a road, will that be included in a definition "altering the road"? Surely, no one could possibly say that altering the camber of a road was not altering the road. If in this Bill the banking is part of the road—because, if it is not, this would not apply even within the meaning of the word "otherwise"—then, if they change the banking, they are also altering the road.

I agree with the noble Lord who spoke from the Alliance Benches that if there is any doubt about the matter it is better to use more words to make it perfectly clear. That is a doctrine to which I would subscribe. But I do not subscribe to the doctrine that you put more words in where there is no necessity for elaboration. I fall back on what Ministers say so often, "The more you specify, the more you destroy the generality". I think that the word "alter" covers everything. If you raise the level of a road, you alter a road. If you lower the level of a road, you are altering it. If you both raise and lower it at different parts, you alter it. If you change the camber of a road, you are altering it. If you change the banking, if the banking is part of the road, you are altering the road. I ask the noble and learned Lord to give some more thought to this matter.

We have had sometimes some funny decisions from sheriffs who are no longer on the shrieval Bench, and I am not criticising any of the present occupants. But I doubt whether even the ones who have made the most peculiar decisions could argue that altering the camber of the road was not covered by legislation which allowed the local authority to alter the road. I am content to leave it that the noble and learned Lord the Lord Advocate will have another look at this aspect, provided that he lets me know whether he is going to do anything about it in time for the next stage of the Bill. This is not the first place where this sort of thing arises. If we cannot find a simpler way of dealing with the matter then I should be anxious to test the feeling of the Committee, but it would be ridiculous to do so tonight. If it is possible to reach agreement on the matter, so much the better.

The Earl of Selkirk

I am a little disturbed by what my noble and learned friend the Lord Advocate has said. This is a Bill which is said to, codify in modern terms provisions on the road". That is to be found in the Explanatory Memorandum. If we are going to be tied by the words of former statutes then the words that I have just quoted will mean nothing. My noble and learned friend has said that because these words have appeared in previous statutes it is therefore out of place to alter them. I know that it is a late hour, and of course we can all go to bed and we all want to go to bed; I quite appreciate that. But I think it is a little bit hard to say that better words cannot be used because they differ from the words of previous statutes. That applies all through the Bill. We are trying to make the Bill a little better. I think that we should have a little more consideration from my noble and learned friend.

Lord Mackay of Clashfern

I am sorry that my noble friend feels he is not getting full consideration. I am giving the fullest consideration to every suggestion. The mere fact that something was in a previous Act does not in any way tie our hands, but where the choice between two sets of words is a very narrow one then I feel that the fact that it was in previous legislation is of some importance. It was in that light that I used that expression. This particular expression is used in what I said was a modern statute, the Roads (Scotland) Act 1970. The more modern the statute, the less necessary it is to change for the sake of modernisation; but we are engaged in the exercise of trying to simplify the whole of our roads legislation. It is quite a big task but I am not ruling out anything. I think I have made it clear that I will consider all matters that have been raised, and this is no exception.

Lord Drumalbyn

I could not help thinking, when the noble Lord opposite was arguing this case and kept leaving out the words "altering the level of the public road", that that is not the same as "altering the road". Altering the road would go very much further than that. But in spite of what I said earlier, I would strongly support what the noble and learned Lord the Lord Advocate has said.

Lord Hughes

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

Clause 23 agreed to.

Clause 24 [Provision of footways]:

9.42 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 68:

Page 20, line 18, after ("sufficient") insert ("footpaths or").

The noble Lord said: The purpose of this amendment is to make it more explicit that a roads authority shall provide, wherever it appears to them necessary or desirable for the safety or convenience of pedestrians so to do, proper and sufficient footpaths or footways for public roads.".

I am reinforced in moving this amendment by the fact that the Government Amendment No. 70 specifically mentions footway, footpath, cycle track and carriageway individually. So obviously, in the Government's interpretation of the terms of the Bill, a footpath and a footway are two different things. Therefore I hope that this is one amendment which the noble and learned Lord the Lord Advocate will be happy to accept as being a clarification of something that he has down later in Amendment No. 70. I beg to move.

Lord Mackay of Clashfern

This clause has its origins in the 1930 Road Traffic Act and is primarily aimed at pedestrian safety. A footway, as defined in Clause 143, is that element of a road which is associated with a carriageway and whose provision enables pedestrians to keep out of the way of traffic. Footpaths are places for pedestrians which are not associated with carriageways. While it is not appropriate to extend the duties of road authorities under this clause to footpaths, these authorities will still be able to construct footpaths where they consider them to be requisite under their powers in Clause 19 of the Bill. I would have thought, with great respect, that to insert "footpaths" here is inappropriate. "Footways" are the correct provision for pedestrians, in association with the public road.

Lord Carmichael of Kelvingrove

I understand the drift of what the noble and learned Lord has said. I wonder whether there is another part of the Bill—I think possibly there is—where they talk about cycle paths and cycle tracks, where there is a space between the road and the cycle track, and then presumably there would be another space between the cycle track and the footpath—or would it be a footway? And where would the difference be? I cannot see that a great deal would be lost by including "footpaths" as well as "footways". I am not very sure whether in Scottish nomenclature we normally say "footway" rather than "footpath". It is more normally "pavement", of course. I should have thought that the juxtaposition was wrong here; but we are splitting hairs.

I know that the Lord Advocate means a road over, perhaps, part of the meadows in Edinburgh, through Kelvingrove Park. A local authority would have power to provide that, yet it would not be a footway; it would be a footpath. It is not a big point, but the noble and learned Lord specifically spells it out in Amendment No. 70, and I understand his reasoning. It is not something about which we would willingly wish to go to the wall, but I hope that the noble and learned Lord will at least give it consideration before Report stage and see whether there is any possibility of accommodating this amendment.

Lord Mackay of Clashfern

Before the noble Lord says what he is going to do about this amendment, may I say that the important point is that we are talking about public roads, and a footpath, by definition—and we have tried to define these for consistency—is a place for pedestrians. It is, as it were, by itself, and is not associated with anything else. It is not appropriate to put it in here because it is not for a public road. In the case of a footpath, the footpath is the public road.

Lord Carmichael of Kelvingrove

I take the noble and learned Lord's point, and I will withdraw the amendment, but I will certainly give it some thought before the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clauses 25 and 26 agreed to.

Clause 27 [Fences etc. to safeguard persons using public roads]:

Lord Mackay of Clashfern moved Amendment No. 69:

[Printed earlier: col. 652.]

The noble and learned Lord said: I spoke to this amendment and to No. 70 earlier. Amendment No. 69 is designed to make it easier to provide cycle tracks by making provision for either fences or barriers, and Amendment No. 70 provides for divisions between the various matters that are there specified. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 70:

[Printed earlier: col. 652.]

On Question, amendment agreed to.

Clause 27, as amended. agreed to.

Clause 28 agreed to.

Clause 29 [Works for protecting roads against hazards of nature]:

Lord Carmichael of Kelvingrove moved Amendment No. 71:

Page 21, line 32, at end insert ("in the road or in land adjoining or lying near to the road")

The noble Lord said: This, again, is an amendment which seeks to find out whether a local authority has power to go out with the contours of the road to build barriers or other works which are necessary to keep out snow or other obstructions. I do not know whether it is implicit in the Bill, but I think it is something which should be made explicit, because in certain areas a little part of the adjoining land lying near the road may be needed in order to protect the road itself. I should be pleased if we could have clarification on this point. Even if the amendment is acceptable, I am sure that the wording is not the best, but I hope that the Lord Advocate will take the amendment in the spirit in which it is proffered. I beg to move.

Lord Mackay of Clashfern

We are absolutely at one about what is wanted here. The only question is whether there should be some restriction on the distance from the road that one should go. What we have provided is that the roads authority should be allowed to go as far as may be necessary from the road to provide the necessary protection. For example, to provide effective protection from flooding or landslide, works may have to be carried out at a considerable distance from the road. It would be imprudent to restrict it to land adjoining or near to the road. We have tried, therefore, to make it as free as possible. I would point out in particular that Clause 106(3) excepts protective works from the distance limits applied by Schedule 5 to the Bill. We have sought to achieve exactly what the noble Lord is putting forward in this amendment without restricting it to being near the road. The local authority will be able to go as far from the road as is necessary to provide the necessary protective works.

Lord Carmichael of Kelvingrove

After that explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30 [Drainage of roads]:

Lord Carmichael of Kelvingrove moved Amendment No. 72:

Page 22, line 8, leave out subsection (2).

The noble Lord said: Again this is a subsection which appears to me to be unnecessary. It reads: Without prejudice to subsection (1)(c) above, where any drain referred to therein was constructed or laid by the roads authority, they shall scour, cleanse and keep it open".

My reading of the subsection is that this is implicit in the wording of subsection (1). Therefore, subsection (2) is superfluous. I hope that the noble and learned Lord the Lord Advocate will agree with me that subsection (2) is not required. I beg to move.

Lord Mackay of Clashfern

The earlier words are permissive, enabling a local authority to provide these various facilities. It is very important that the roads authority should have a duty to cleanse and keep open any road drains which are provided by them. The noble Lord's amendment would remove that duty. We regard that duty as important. Therefore, we feel that the provision should remain. This is the distinction between "permissive" and "mandatory" to which the noble Lord, Lord Hughes, has already referred. We are trying to make the position absolutely plain. We regard it as important to have both aspects in the clause.

Lord Drumalbyn

They have no duty unless they themselves have constructed or laid the roads.

Lord Mackay of Clashfern

That is so, under this clause.

Lord Drumalbyn

There is another reference under which they would have a duty, even though they had not laid or constructed the road.

Lord Makay of Clashfern

The situation is that the drains are to be provided by them as part of the road. Obviously they have the right to provide the road with its drainage up to the proper standard. The purpose of this clause is to impose upon the roads authority the duty to cleanse all the road drains that they have provided for the purpose of draining the roads.

Lord Hughes

If that is the case, and I accept the explanation which the noble and learned Lord the Lord Advocate has given, what is the meaning at the beginning of subsection (2) of the words: Without prejudice to subsection (1)(c) above …"? If subsection (1)(c) is only a permissive power to scour, cleanse and keep open all drains in the road or in such land as aforesaid and if it is followed by a mandatory requirement that they should do so, it does a lot more than prejudice something. It knocks it out of the window.

Lord Mackay of Clashfern

With great respect, it does not in any way knock out our power to scour all sorts of drains; we then have a duty to scour our own drains. There is no conflict between the two.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hughes moved Amendment No. 73:

Page 22, line 20, leave out paragraph (a) and insert— ("(a) if the roads authority is the Secretary of State he shall not carry out the proposed works without having considered the objection;").

The noble Lord said: The existing wording in the Bill is, (a) if the objection is to works proposed to be carried out by the Secretary of State, he shall consider the objection before carrying them out".

One could say that on a strict reading of that language, the Secretary of State receives the objection, considers it, but just goes ahead as he originally intended. I will now refer the Committee to Clause 75(4)(a) on page 48, which states, (a) if the roads authority is the Secretary of State, he shall not carry out the proposed works without having considered the objection".

That second form of words implies that the Secretary of State may not carry out the works he originally intended because he shall not do so without having considered any objection. My amendment proposes that instead of the words on page 22 of the Bill, we use those on page 48.

That second form of wording makes it quite clear that the Secretary of State should give due consideration to any objection and that he will not just carry on as if nothing had happened. In view of the way the words are used elsewhere, I am sure it is not intended that the Secretary of State should only pay lip service to consultations. I feel that the Government's second form of words is a better way of dealing with the matter. I beg to move.

Lord Mackay of Clashfern

I accept that there is a point here. The words proposed by the noble Lord, Lord Hughes, may not exactly fit this context either; but if he will leave this matter with me, we shall bring back an amendment at Report stage to cover this.

Lord Hughes

I am quite content with that and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 agreed to.

Clause 32 [Snow gates):

Lord Carmichael of Kelvingrove moved Amendment No.74:

Page 23, line 11, leave out ("a precipitation or accumulation of").

The noble Lord said: This amendment questions whether it is necessary to include in the Bill the words: a precipitation or accumulation of".

We are all trying to cut out unnecessary verbiage in Bills and I hope that the noble and learned Lord will agree that the words, temporarily closing a road to vehicular traffic on any occasion when snow has rendered that road unsafe for such traffic"— and this is very topical just now—are really sufficient without having to worry about, a precipitation or accumulation of snow".

Unless there is some great mystery, I hope that I can get the noble and learned Lord to accept the omission of those words.

Lord Mackay of Clashfern

There is a point here of some importance. It is desirable that the authority with the power to close these gates should have the power to do so not in relation only to a danger which has already been created but which that authority anticipates may arise in the immediate future. The clause as drafted is not very satisfactory and I am obliged to the noble Lord for moving this amendment as it has drawn my attention particulary to the drafting of the clause.

We should wish to reconsider this clause in the light of the amendment, but I should certainly want to try ultimately to produce a clause that has those two elements in it. Therefore, I am not absolutely happy with the rather simpler form of wording which the noble Lord proposes because I believe it is quite important that both aspects of the matter are considered when a decision to close is taken. One can appreciate that the decision to close a public road is quite an important one and we must be certain that all the considerations are properly set out. In the light of that, perhaps the noble Lord will withdraw his amendment and give me a chance to consider it in the future.

Lord Hughes

The noble and learned Lord has been very fair and I shall certainly look with great care at the words he puts down in place of those which appear in Clause 32(1). I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clause 33 [Clearance of snow and ice]:

10 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 75:

Page 23, line 24, after ("pedestrains") insert ("over footways and in pedestrian ways")

The noble Lord said: I have been asked about this aspect by a surprising number of people, and there have been notes in the press and letters to the newspapers recently. I am asking for information; I am sure the wording of the amendment would not be exactly what the Lord Advocate would accept, but even he would agree with the sentiment of it. What I am concerned about and the people who have approached me have been concerned about is what are the duties on the owners or tenants who are fronting the road as regards the footways or pedestrian ways in front of their premises during periods of heavy snow?

I am informed that there were many old byelaws or perhaps Burgh Police Acts which made it a duty to clear snow away from the front of shops and residences. This seems to have been neglected and is certainly very seldom done now, unless they are very energetic people who occupy the premises. This amendment is an effort to get clarification on what is a very topical subject: what obligations there are on owners or occupants of premises adjoining a road to clear the snow. I should be very pleased if the Lord Advocate could help me. Perhaps he could get the information and pass it to me at a later stage. I beg to move.

Lord Stodart of Leaston

I wonder whether I may put a point to my noble and learned friend. I apologise for my voice; it has an affliction not uncommon at this time of the year. I think the point I wish to raise does deal with the amendment which has been moved. The clause, as I undestand it, deals with preventing snow from endangering pedestrians and vehicles on public roads. Because of the definition of a footway—which I prefer to describe as a pavement—this covers the endangering of pedestrians on the pavement. In the committee which I chaired some two or three years ago we reported that a good deal of confusion had been expressed to us about the responsibility of keeping up public footpaths, as opposed to footways. To my mind, a footpath is probably what the noble Lord, Lord Carmichael, is describing as a pedestrian way, which does not, I have ascertained, feature in the interpretation clause; a footpath does but a pedestrian way does not.

My noble friend the Lord Advocate can probably well imagine a case in which there is a housing scheme or a housing development—it may be private or it may be public—through which there is a public road. If it had been a private road it might have been taken over by the road authority. But because the road happens to take a slightly circuitous route there may well be what I would describe as a short cut in the form of a footpath from the housing scheme or development leading to the main shopping centre which is used by pedestrians. That is, of course, a footpath.

So far as I have understood Clause 17,this is dealt with, to a certain extent, with the taking over of a public footpath by the roads authority, if it wants to. I put to my noble and learned friend that it would not be unreasonable, and would perhaps avoid confusion, if it were made clear in this clause, as we certainly thought it should be, that the kind of footpath I have described should be included in the responsibility of the roads authority so far as the clearing of snow and the endangering of pedestrians on it is concerned.

Lord Mackay of Clashfern

This clause as it stands provides that: A roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians over public roads". Public roads includes everything that is under the responsibility of the roads authority to maintain, whether it be a footpath or a footway which is part of a public road, or otherwise.

The noble Lord's amendment would insert after "pedestrians" the phrase: over footways and in pedestrian ways". That would be a little unfortunate because it would mean that in the road clearing responsibilities the authority would have to take no thought of the safety of pedestrians crossing the carriageway. In other words, this amendment is limiting the responsibility which the clause puts on the roads authority. Therefore, the clause is better as it is without the amendment.

As regards the observations of my noble friend Lord Stodart of Leaston, I think that the important matter is whether or not the footpath to which he refers is a footpath over which there is a public right of way. One may have a trodden path which people choose to tread down because it is a short cut, but unless it is a public right of way there will not be a responsibility to keep it clear. If people care to use a short cut when a provided road is a series of hairpin bends down a slope, minimising a slope that one has to negotiate, the person taking the short cut does so at his own risk. It would be very difficult to impose upon the roads authority an obligation to deal with anything that is not a public right of way. So long as it is a public right of way and a public road in the sense of this Bill, it will be covered.

The noble Lord did not so much speak to his amendment as ask me a question. My understanding of the position is that in the cities—I think in Aberdeen, Edinburgh, Glasgow and Greenock—local enactments provide that the frontagers have a responsibility for snow clearing. When this Bill comes into force, as I hope it will, those provisions will be superseded and it will be the roads authority which will have the obligation to do the snow clearing. Of course, it will be open to frontagers to do what they wish in the way of helping to clear away snow but it will be the roads authority that will have the obligation.

Lord Stodart of Leaston

I wish to ask my noble and learned friend for clarification. The heading of Clause 17 is: Power of local roads authority to take over footpaths associated with development". Suppose that a roads authority comes to an agreement, takes over the footpath and therefore agrees to maintain it, will such a footpath be cleared of snow, even if it is not a right of way?

Lord Mackay of Clashfern

As I understand my noble friend's example, that sort of footpath will come within the obligation but it will also in the light of the example have a public right of way over it. When I say that the footpath will be cleared of snow, I should perhaps be careful to say that the authority has to, take such steps as they consider reasonable to prevent snow and ice endangering those who pass over it. That might not require complete clearance. It depends on the circumstances. The authority might not be able completely to clear the snow and ice. It may have to take other steps, such as gritting, and so on. As I understand it, such a piece of footpath would be covered by the obligation.

Lord Carmichael of Kelvingrove

I am grateful to the noble and learned Lord the Lord Advocate for that explanation. I understand the points that he is making and accept most of them. The Bill is largely non-political, but one of the few political points that the Bill brings up is this. If local authorities are now to be responsible, even in the cities that the noble and learned Lord mentioned—Aberdeen, Glasgow, Greenock and Dundee—for clearing snow from in front of commercial premises (which has previously been done by owners or occupiers), it will involve the authorities in considerable additional expense at particular times of the year. But that is a political point which can be taken up at a later date. In the meantime, I am happy with the explanation given by the Lord Advocate and beg leave to withdraw the amendment.

The Earl of Selkirk

Clause 33 is an entirely new provision. I think it is a very' good clause. But when the precipitation is snow the clearing up falls to the region, whereas when the snow turns to dirt it falls to the district. Can the Lord Advocate give us some picture of how he distinguishes between the two? Two authorities are responsible for cleaning up the roads. Snow when it turns to dirt can also endanger people. It is not easy to see the distinction. Do the Government have a clear distinction in mind between the two duties, which are very similar?

Lord Mackay of Clashfern

In so far as snow and ice constitute dirt—which I suppose is matter out of place or something of that kind—the district has a duty to take proper steps to remove it. That is a duty which obviously cannot be performed at the same rate in every situation. It might take a long time fully to remove all the dirt. The cleansing function is on the district, or islands, authority, but where there is snow and ice in question—and, as I say, there may be an overlap here—the obligation to take reasonable steps to prevent them from constituting a danger is on the roads authority. That is in accordance with the recommendations of the committee presided over by my noble friend Lord Stodart of Leaston. As I said earlier, that does not necessarily mean that the snow and ice will be removed. It may add to the dirt by putting on grit, and so on. I should not like to attempt to analyse the point at which the obligation passes from one authority to the other. Both obligations can exist together. That is the position that we have adopted.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

10.15 p.m.

The Earl of Selkirk moved Amendment No. 76:

After Clause 33, insert the follwing new clause:

("Provision of signposts. Signposting

.—

1. (1) A roads authority shall take such steps as they consider reasonable to ensure that all roads and footpaths for which they are responsible are adequately signposted in order to facilitate the pasasge of motor vehicles and pedestrians.
2. (2) District authorities shall encourage all identifiable communities to display signs showing the name of their community for the benefit of pedestrians and motorists using the footpaths and the roads.").

The noble Earl said: This is a Bill to deal comprehensively with the management of roads, yet there is nothing at all in it dealing with signposting, which is an integral part of the management of roads and without which roads could not properly be used. To my mind this is a very important element. If there are no road signs, there is great additional traffic congestion. The point becomes still more important when we increase the number of one-way traffic schemes, bypasses and M-roads, since if one gets on to the wrong road one might have to go a long way round to get back on to the right one. Further, signposting is extremely helpful to tourists in this country who want to find their way from one place to another.

It seems to me very strange that while the Bill is said to codify and modernise the whole of road management, hose who are responsible for and charged with looking after roads are told nothing whatever about signposting. I do not suppose that the words of my new clause will be particularly appreciated by the draftsman, who has very much had his own idiosyncratic way of writing the Bill, but I think we should not go through our consideration of the measure without emphasising the extreme importance of proper signposting. I agree that signposting has been greatly improved in recent years, but I believe that its importance cannot be over-estimated.

My amendment contains a second point which deals with the identification of small communities. In this regard signposting has improved in certain places, though not in all places, and the only people who can improve it are those who manage the roads.

Quite recently the British Tourist Authority made a statement on what it has in mind for the coming year. I should like to read to your Lordships' Committee part of a report on that statement because it emphasises very clearly the authority's intention. The report states: The British Tourist Authority, keen to promote the trend, is emphasising its Heritage '84 theme"— by which it means areas outside the centres— to coax visitors beyond London, Oxford and Stratford-upon-Avon".

In other words, it wants people to go to the small communities in the country, outside the large centres. I think that that is right. Personally, I have always advised foreigners who visit this country not to stay in London. London has its greatness and its smallness, but it has a certain resemblance to all other capitals. If people want to see our heritage, they must go out into the country. Very often they go by car, and if they are to know where they are they must see well-marked signs showing the name of the small villages, which in many cases are unique. Signposting is of very great value in regard to the movement of traffic, and there should be incorporated in the Bill provisions relating to the signposting of centres and villages. I am quite sure that the noble and learned Lord will not like the words of my amendment, but I believe that this is an important matter and I would ask him to consider it very carefully. I beg to move.

Lord Mackay of Clashfern

I entirely agree with the noble Earl in relation to the importance of signposting. However, I earlier sought to explain that the Bill is concerned more with the construction of roads and the financial arrangements in regard to that, as well as the responsibilities of the road authorities regarding construction, maintenance and so on, than with management.

There is another area of road traffic regulation which is important, and that is the area of administration controlled by the Road Traffic Regulation Act 1967. In 1981 there was made under that Act a series of regulations and general directions concerning traffic signs which prescribed the signs which may be used by road authorities. Under Section 84 of the 1967 Act, roads authorities have a duty to secure expeditious, convenient and safe movement of vehicular and other traffic, including foot passengers. In fulfilment of that obligation, they have powers under Section 55 of the Act to take such steps as they consider reasonable to ensure that roads for which they are responsible are appropriately signposted. I am therefore glad to assure my noble friend that the first part of the amendment is covered by the 1967 Act and the regulations made under it which is the appropriate place for dealing with road traffic signs.

As regards the second part of the amendment. I should explain—as indeed I think my noble friend pointed out—that it is appropriate that road signing should be exclusively a function of roads authorities, and we certainly think that it should remain so. It would be dangerous to allow anyone other than a roads authority to erect signs on roads and quite wrong for anyone else to be encouraged to do so. The traffic signs regulations to which I have referred prescribe signs for the naming of towns, villages, regional boundaries and even rivers and inland waterways. I am not aware of widespread complaints that such signs are not being provided. The report of the Committee chaired by my noble friend Lord Stodart in effect recommended, as my noble friend Lord Selkirk has also stated in explaining the amendment, that the provision of such signs should remain with the roads authorities.

Obviously, anyone who can obtain the necessary planning consent may be able to erect signs out with the confines of the road. The same applies to signs on those footpaths excluded from the meaning of "road" in Clause 143, covering cases like countryside paths. These would not he road signs, however, and it would be inappropriate to have in the Roads (Scotland) Bill a provision such as that proposed here relating to particular signs of that kind. The main answer that 1 give to my noble friend is that I share entirely his concern. I appreciate entirely the importance of the matters that he has raised. But, as he says, it is a matter primarily related to the traffic on the roads, and the Road Traffic Regulation Act is the correct place for that. We have not sought to bring into this Bill anything that is primarily related to road traffic. It is construction of the roads and related matters that are the province of this legislation.

Lord Hughes

I was much impressed by what the noble Earl, Lord Selkirk, said. The noble Lord will probably agree that what the Minister has said about the other piece of legislation is helpful. But it is only helpful to the extent that the roads authorities take a reasonable view. The places where purpose signposting is most necessary are the roads that bypass existing communities. These communities have existed for centuries, but suddenly find, due to the policy of the roads department, that their very existence is imperilled. I recall, for instance, the row a year or two ago, when the village of Blackford—I then lived only a few miles away—was by-passed. Within a matter of months, the jobs in that community were almost destroyed.

A great deal of money had been spent on modernising and extending the hotel there. But people travelling along the by-pass had no indication that there was anything there at all. The attitude of the roads authority, when judged from the point of view of making the roads safe to travel along, was perfectly reasonable. It wanted the fewest possible signs so that drivers did not have their attention distracted. However, enabling people to move safely and as fast as safety will permit. is one function of roads. The primary function of roads is to take people to places. If signposting is cut down, tourists to Scotland in the summer can suddenly find that they are past the place where they can have a meal, obtain petrol or go sightseeing. I can well imagine that people had in mind a visit to Blackford but they were not aware that they were past any possibility of getting there. So the roads authorities should keep it in mind that, apart from providing a road for fast, safe moving traffic, there is also the purpose of it leading to communities. I have mentioned Blackford but I could just as easily have mentioned a dozen other places. Years ago Dunblane was complaining about what might have happened.

It should be kept in mind that these are communities which have existed not for decades but for centuries. I can imagine them not paying much attention to something which has just sprung up overnight. Indeed, perhaps there would be a justification for it being ignored. But too often the attitude of the roads department has been that what the road has brought, the road is entitled to take away. That was the argument put forward when people complained that the by-pass would cause them to lose money. The by-pass is desirable and most of the shopkeepers and traders have accepted that it is in the best interests of everybody to by-pass communities with narrow streets and which have vehicles perhaps parked on one side or the other of the street. That is not a safe place for fast traffic to be moving.

Nevertheless, there should be every possible encouragement, consistent with road safety, to let people know that they can go to these places. I suggest that the noble and learned Lord the Lord Advocate should convey to his friends in the Scottish Office that a more liberal interpretation of signposting on main roads would be very desirable. If they do that there may not be any need for additional legislation. However, at present I doubt whether anybody in Scotland would agree that the signposting policy which is carried out is entirely satisfactory.

Lord Drumalbyn

There are certain respects in which I agree very much with what the noble Lord opposite said. However, there is one aspect which must always be kept prominently on people's minds when they are planning road signs, and that is prompt advance information so that people will not stop in the middle of the road and start looking for their destination. It is very difficult for people constructing roads and road signs and who know the district, and so on, to put themselves into the minds of people who do not know where they are but who are trying to get to their destination. I put some stress on that aspect. It is particularly important when one is driving on fairly poor roads—that is, poor in comparison with others. Road surfaces have improved greatly in recent times and that has meant that vehicles go faster.

What chance has a person looking for the way to reach his destination, when he is competing with a fairly narrow road with a good surface and inadequate road signs? That is one side of the matter. The other side is to try and anticipate the gaps in the motorist's knowledge. So often the person journeying finds marked only one of the places that he seeks. It is important to try to retain the tradition of showing a number of places all clearly marked on the sign and to try to get them all together so that people will not make mistakes and cause accidents through dithering, as we normally say, through failing to find their way and then getting fussed, and all the rest of it.

There is a science in this which I believe we have not mastered to an extent comparable with the sheer making of the roads. The roads are made for use by people, and it is the people and the places they want to get to which have to be borne in mind. I would add that particular aspect of the problem which I hope my noble and learned friend will consider.

The Earl of Selkirk

I must admit that my noble and learned friend gave me the answer that I expected, but I do not think it answers the point which the noble Lord, Lord Hughes, made with great force and clarity. The Ministry of Transport is responsible for safe driving, but they do not help me to get to Little Puddleton-on-Sea. They do nothing to help me in that way at all. It is nothing whatever to do with them on that side. This is a matter which concerns the convenience of the public and particularly the value to the tourist trade, which we must not underestimate. As the noble Lord said, with the variety of one-way traffic today, and with bypass roads, you can make mistakes which cause you to take hours longer to get anywhere, besides missing points of particular interest in certain villages which may be off the bypass roads.

I am not going to press this matter any further, but I should like to ask my noble and learned friend to look at this carefully. When you come to the naming of places it is the road authority's business; it is nothing whatever to do with the Ministry of Transport. They are looking at it through a different set of spectacles altogether. I do not want to press this matter, but I should like my noble and learned friend to look further at it.

I believe this is important, and that more could be done under the heading of management of roads. This is the responsibility of somebody who manages the roads: it is not the responsibility of the traffic code, or of the Ministry of Transport. I am only asking my noble and learned friend to look a little more closely at the points I have sought to raise. Unless he wishes to say something, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.32 p.m.

Clause 34 [Provision of lighting by roads authorities]:

[Amendment No. 77 not moved].

On Question, Whether Clause 34 shall stand part of the Bill?

Lord Hughes

On lighting, A local roads authority shall provide and maintain lighting for roads, or proposed roads, which are, or will be, maintainable by them and which in their opinion ought to be lit". I do not think I have ever heard of anybody objecting to a local authority deciding to light a road, but what I have heard more than once are objections to a local authority refusing to light a road where people consider it is dangerous. In this clause, however, the matter is left entirely in the local authority's hands, and no matter how dissatisfied people may be there does not seem to be any chance of a second go at it.

Am I correct in thinking that there is no appeal procedure of any sort against a local authority's decision not to provide lighting? Say, for instance, all the residents in a street say that their street is dangerous for a variety of reasons—a child may have been knocked over, somebody may have been attacked in the dark, somebody may have been mugged, and so on—and yet the local authority, perhaps for what may seem to them sound reasons, say, "We have spent all the money we had available for lighting, and we do not have any to do that". There does not seem to be any way of overturning a refusal to provide lighting. Am I right, and is it the Government's intention that this is a case where it must be left entirely to the discretion of the local authority?

Lord Mackay of Clashfern

There is no appeal provision or anything of that sort. It might be going too far to say there are no circumstances in which it might be possible to challenge a decision of a local authority in court; an entirely unreasonable decision exercised under statutory powers might be challengeable. That is not necessary to provide; it is already there under the general law. But it is thought that this is a matter which can reasonably be left to the wise judgment of the local authority.

Lord Hughes

In a way that is quite a satisfactory answer, not from the point of view of lighting the road, but to have this statement from the Lord Advocate that there are some cases where the Government are prepared to admit that a local authority can be a good judge in its own case. In recent years there has not been much evidence of the fact that the Government thought that the local authorities had that power to make a proper decision.

The Earl of Selkirk

At one time there was a connection between restricted speed and lighting. Is it still the law that if one does not have lighting one cannot have restricted speed? This adds a further point which should be borne in mind. Does my noble friend know the answer to that?

Lord Mackay of Clashfern

My recollection is that the power to impose the 30 mph speed limit is related generally to lighting, but I do not think it is absolutely so. I would need to look into that more fully.

In relation to the last point made by the noble Lord, Lord Hughes, the Government have always taken the view that there are many matters which are properly committed to the wise discretion of local authorities. Parliament has never given an absolutely free hand to local authorities to do exactly what they like. That may be the matter to which the noble Lord, Lord Hughes, is referring.

Lord Hughes

We shall not agree on this because it is a matter of Government policy—local authorities are free to do as much as they like, provided that they do not spend money on it.

Clause 34 agreed to.

Clause 35 [Construction of road humps by roads authority]:

Lord Carmichael of Kelvingrove moved Amendment No. 78:

Page 24, line 10, leave out ("30") and insert ("20")

The noble Lord said: I am sure that the Lord Advocate realises that this is an amendment merely to allow me to ask a number of questions about road humps. I can clearly see that the amendment is, in many ways, out of place because there must be very few places—I can think of only two or three rather special cases in the City of Glasgow—where there is a 20 mph limit, far less a 30 mph limit.

My noble friends and I are concerned about the use of road humps, and, should road humps come, what speed limits should be authorised on roads that contain road humps? So far as I am aware, there are no statutory road humps in Scotland, although they have been operating south of the border for some time. The only road humps I am aware of are those in one or two colleges and hospitals and such places. As a motorist with some enthusiasm, I admit that seeing a road hump is about the only thing to make a motorist reduce his speed—the safety of his car is involved—and nothing done about signs will affect him as long as the road appears to permit a speed well within the capabilities of his car.

We are concerned to ask the Lord Advocate for more information about road humps. Will there be full consultation? I know that this is dealt with in the next clause, but I should like to know how full the consultation will be. How will the House be consulted? It is quite a big breakaway and I do not think that many of the motorists in Scotland really appreciate what is likely to be happening in the next few years. I wonder if the noble and learned Lord has any idea from the department of how urgent is the question of road humps and what speed limit there will be on roads with them. As mentioned in a later amendment, No. 69, will the signs need to be illuminated?

Generally speaking, we feel that this is such a big matter that the House should be given separate opportunity when the regulations are ultimately formulated to discuss them at some considerable length. I should like to have these assurances from the noble and learned Lord, the Lord Advocate. From a purely legalistic point of view, this amendment may appear a nonsense, but I think it provides the only opportunity we can get to ask the Government to make their intentions clear. I think I should emphasise that we agree with the necessity and success of road humps in England; but there will be a lot of questions from the motorists in Scotland that we shall have to answer when humps are introduced. I hope we can have the assurance of the noble and learned Lord that they will be thoroughly discussed, both here and outside, with the various organisations and with the public at large. I beg to move.

The Earl of Selkirk

I wonder if I might support what the noble Lord, Lord Carmichael, is saying, This is an entirely new innovation. I believe I am right in saying. I think that the manner in which it is introduced is extremely important and that what the innovation is exactly should be fully explained. Humps can be extremely dangerous. I personally would not drive over a hump at a speed of over ten miles an hour. They should never be on a road with traffic of more than 30 mph. It will mean that cars will have to slow down to a very low speed. It is extremely important that Parliament should have a very full opportunity of considering what is intended and the public should fully understand the nature of what is contained in Clause 37.

Lord Mackay of Clashfern

Your Lordships are aware that the Secretary of State would require to make regulations in relation to the authorisation of road humps and to their construction and maintenance. The regulations which are presently in place in England and Wales provide requirements as to lighting, location and spacing of the humps. They also require there to be on the road leading to the hump, and near to it, at least one obstacle such as a bend or junction which will have the effect of reducing traffic speeds. It would be the Secretary of State's intention that equally rigid regulations would be applied in Scotland and it is obvious that, in considering these regulations, he would want to take account of as full a view as he could have of what was appropriate.

I also very much take the point of my noble friend Lord Selkirk about the need, if and when road humps are introduced, to explain the situation. I was also asked a question about the procedure for such regulations. The procedure is the negative resolution procedure which will apply to regulations made under this provision in terms of Clause 135.

Lord Carmichael of Kelvingrove

While I appreciate the answer given by the noble and learned Lord, I was disappointed when he said that it was the negative resolution procedure. This procedure, I believe, allows for no amendment. I reiterate the point made by the noble Earl, Lord Selkirk. This has been used in the South but it is absolutely new to Scotland; and anything associated with roads and motor cars is something that raises a great deal of public interest, as I am sure the noble and learned Lord is only too well aware. I hope that great delicacy and great wisdom—which is not always the case with any Government—are used before this innovation is brought before the Scottish people. I hope, for instance, that there will be opportunity for your Lordships to look at draft provisions before final regulations are brought in for a once-and-for-all yes or no in this Chamber.

I am personally enthusiastic about the necessity of road humps but I believe that we should all be giving ourselves a great deal of trouble unless we proceeded with care in the introduction of them. They are something which people are afraid of, to begin with at least, and therefore they have to be treated with great care. I should like people to have the opportunity to study the situation and write to their Member of Parliament, if necessary. I hope that both Houses will make it possible for a wider appreciation of the importance of road humps and of the reasons why they are being put in certain places. We should try to give them a good send-off and I hope that the Lord Advocate will take note of these things. I had a little experience in the other place when the legislation was introduced originally; and it is important to get the public on your side at the beginning, which is not always easy. I think that most people now appreciate the situation when road humps are used wisely and well, and they are accepted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Regulations concerning construction and maintenance of road humps]:

[Amendment No. 79 not moved.]

Clause 37 agreed to.

Clauses 38 to 42 agreed to.

Clause 43 [Exercise of powers in respect of cattle-grids etc. by agreement between neighbouring authorities]:

Lord Carmichael of Kelvingrove moved Amendment No. 80:

Page 29, line 9, leave out ("by the Court of Session; or")

The noble Lord said: This is a very simple point, as I suggested earlier, about the Secretary of State or the sheriff taking responsibility for certain things. It does seem almost pompous to ask the Court of Session to adjudicate or make appointments of this nature. I feel it is unnecessary, as the sheriff would be quite capable of making a decision or disposition on this matter. I beg to move.

Lord Mackay of Clashfern

The reason for inserting reference to the Court of Session is that these cattle-grids might come at the boundaries of estates, and the boundaries of estates sometimes come at the boundaries of sheriffdoms. To have the grid exactly on the boundary of a sheriffdom means that there is no particular sheriff court to apply to. It is to cover that possibility that the Court of Session is involved. There is no problem in going to a sheriff's court, which is where you would normally go if the sheriff is available. It is only in that event that one would think of going to the Court of Session, and in these circumstances it seems reasonable.

Lord Carmichael of Kelvingrove

I can see the point which the Lord Advocate is making. It is an "either/or" situation. If it is on a boundary, it will go to the Court of Session, but if there is a sheriff available it will go to him to determine.

Lord Mackay of Clashfern

We do not need to provide that, because that would he the practical way in which it would operate. Nobody would go to the Court of Session if he could go to the sheriff in the ordinary circumstances. That is the practical way in which it would happen.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

Clauses 44 to 47 agreed to.

Clause 48 [Planting of trees, shrubs and grass or other plants by roads authority]:

[Amendments Nos. 81 to 83 not moved.]

Clause 48 agreed to.

Clauses 49 to 52 agreed to.

Clause 53 [Provision of picnic sites for trunk roads etc.]:

The Deputy Chairman of Committees (Viscount Simon)

I understand that Amendments Nos. 84 and 85 are alternative amendments.

10.52 p.m.

Lord Hughes moved Amendment No. 84:

Page 33, line 28, leave out ("other than a regional, islands or district council")

The noble Lord said: I suggest that I speak to Amendments Nos. 84, 85, 86 and 87 together, because Amendments Nos. 84 and 86 are one pair of amendments and Nos. 85 and 87 are another pair.

Amendment No. 85: Page 33, line 28, leave out ("other than") and insert ("or")

Amendment No. 86: Page 33, line 30, at end insert ("or council")

Amendment No. 87: Page 33, line 30, at end insert— ("( ) A regional, islands or district council shall not provide meals or refreshments on the picnic site without the consent of the Secretary of State")

The Bill, as it stands, places an absolute embargo on a regional, islands or district council providing meals or refreshments on a picnic site, so that is one extreme method of dealing with the matter. Amendments Nos. 84 and 86 remove the embargo entirely, so that a regional, islands or district council would have total freedom to provide refreshments at picnic sites. I suggest that Amendments Nos. 85 and 87 are an alternative form and are a halfway house. They take out the embargo, which is contained in the Bill as it stands, but then Amendment No. 87 adds a new subsection which states: A regional, islands or district council shall not provide meals or refreshments on the picnic site without the consent of the Secretary of State".

So my suggestion is that it is not necessarily reasonable to prevent these local authorities from providing, because there may be very desirable places where refreshments would be desired, but nobody in the area was interested in taking it on. But a local authority may see considerable advantage for their areas in doing so, even although that might involve them in taking it on at a loss, because I am quite certain that if there was a profit to be made, there would be no difficulty in finding somebody outside to do it.

But the Government, if they were prepared to depart from the terms of the Bill, would probably not be enthusiastic about the possibility of an authority embarking on such a project without proper consideration and would want to have some control over it. So on this basis I suggest that our alternative, less radical, proposal makes it possible for this situation to develop.

A picnic site is being created. It is desirable, if it is at all possible, that there should be eating facilities there. The local authority invites tenders for the job. One possibility is that people will expect to be paid something to enable them to provide the service. The Secretary of State would want to know what opportunities had been given to the private operator to provide these facilities. He might come to the conclusion that it was more desirable for the local authority to provide the facilities than to have no facilities at all. If I were to take a dogmatic view I should prefer to give complete freedom to the local authority, but given the extent to which that freedom is restricted in the Bill I would suggest that the Government should at least open the door, provided that the Secretary of State agrees that the door should be open. Therefore, I beg to move, technically, Amendment No. 84.

Lord Mackay of Clashfern

Our approach to this matter is that local authorities should not be in the hot-dog and coffee stall business. No doubt some of them are capable of providing very good hot-dogs and very good cups of coffee, but we do not consider that that is what they were elected to do. This is a field where the private sector can do at least as well—indeed, better, because of their greater awareness of competition and of the link between customer satisfaction and profitability. In our view, local government should be left to get on with the many activities which only it can perform and should not be distracted by venturing into the snack-bar business.

While I appreciate the spirit in which the noble Lord has put these amendments together, I am afraid that I must advise the Committee not to accept them.

Lord Hughes

This is probably one of the few amendments which would affect the principles contained in the Bill. It would be futile to call a Division on it at this stage. However, in withdrawing the amendment and in not moving the other three I give notice to the Committee that I intend to return to the matter at the next stage of the Bill. It may then be possible to deal with it at an earlier stage in the proceedings.

I am amused by the touching faith which the noble and learned Lord the Lord Advocate puts in the ability of private enterprise to provide satisfactory facilities. The facilities provided on the motorways do not always meet with the unanimous approval of those who are unfortunate enough to pick the wrong ones, where the food can be atrocious and the service worse. There is no guarantee that private enterprise will always do it better. If there is the possibility of a great deal of business being done, private enterprise will be interested, but I am thinking about such areas as picnic sites. Private enterprise may not be interested in picnic sites, although there may be a demand by the public for facilities to be provided. As the Bill stands, local authorities would be denied the opportunity to provide those desirable facilities. Therefore, the Government ought to consider opening the door.

I hope that the Scottish Office will give a little more thought to the matter. By saying that it should be only with the consent of the Secretary of State I know that I am giving a hostage to fortune, but I cannot believe that the Secretary of State would allow money to be spent on a picnic site and then, because of a very tight provision in the Bill, would prevent proper use being made of the facilities.

I agree that in almost every case, if not in every case, the first approach would be to try to get the private caterer to take it on. I am seeking to make provision for those cases where that would not be the result, but where there is a desire for something to be done. After all, most of the authorities concerned do have facilities in their school meals provisions, and so on, which could quite easily take on simpler meals. People who stop at picnic sites are not expecting a place having four stars from Egon Ronay, or anything of that kind. They are expecting something quite simple, and it would not be beyond the bounds of some local authorities to provide it.

I hope that the Scottish Office will consider this matter further; but if they do not do anything more about it, then we shall return to this point at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85 to 87 not moved.]

Clause 53 agreed to.

11.2 p.m.

Clause 54 [Control of works and excavations]:

On Question, Whether Clause 54 shall stand part of the Bill?

Lord Hughes

I notice that in the heading to Clause 54 the words "works" and "excavations" both appear in the plural. Then, throughout the clause "works" is always in the plural but in all cases except one "excavation" remains in the singular. The one instance where it is shown in the plural is in subsection (3), where it states This section does not apply to works or excavations". I do not care which way it is done—whether it is in the singular or the plural—but will the noble and learned Lord ensure that it appears in the same form throughout the clause?

The word "excavations" is to be preferred in view of the fact that "works" is in the plural throughout and that the heading of the clause is "works and excavations". I draw this point to the attention of the noble and learned Lord, and perhaps he will make the necessary minor adjustments at a later stage.

Lord Mackay of Clashfern

Subject to the appropriateness of the context. Sometimes it is not absolutely clear that it would be right to do so, but I shall certainly look at that point.

Clause 54 agreed to.

Clause 55 [Dangerous works]:

Lord Carmichael of Kelvingrove moved Amendment No. 88:

Page 35, line 37, leave out ("street") and insert ("road").

The noble Lord said: This is a very small amendment which, as the Bill itself now designates everything as a road, attempts to question the Minister why the word "street" has been reverted to in the phrase "street works code" when it is not even "Street Works Code" in capital letters. It appears that in order to keep that subsection in balance with the rest of the Bill it would be easy to replace the word "street" with the word "road". I beg to move.

Lord Mackay of Clashfern

It would of course be desirable, if one could do it, to make the word "road" prevail completely, but the phrase "street works code", to which the noble Lord has referred, comes within the Public Utilities Street Works Act 1950, and we cannot really amend the title of that Act. The code comes from that Act, and therefore I would suggest that it is appropriate to leave that phrase as it stands.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Clause 56 agreed to.

Clause 57 [Control of obstructions in roads]:

The Earl of Selkirk moved Amendment No. 89:

Page 37, line 10, after ("road") insert ("or on the verge").

The noble Earl said: The greater part of the safety regulations regarding the obstruction of roads concerns what is deposited on the road and what people do who own the land on each side. I am taking a different example here which I believe requires to be covered. It is: what happens on the verge of the road; and, in particular, what happens with the digging of a ditch and the placing of the scourings from that ditch? This can take over the years quite a high level, and in a narrow road with turnings off it, it can very seriously obscure the view.

There is no obligation here on the landowner—because this is the verge of the road, which must belong. I take it, to the road authority. There is very little duty put upon the road authority, in fact there is none, about keeping the verges of roads clear. There are some cases in open land where that does not matter, but in other cases where the roads are narrow this is extremely dangerous and should be put right.

I am suggesting, in this amendment and my following amendment, that in cases where the scourings from a ditch reach a stage where they seriously obscure the vision down the road the road authority should have a duty to deal with it. Although this Bill goes into very great detail on all sorts of subjects, this is an important aspect which is omitted. I ask the noble Lord either to accept these words or to undertake to look very carefully to see that this particular aspect is covered by this very comprehensive measure. I beg to move.

Lord Carmichael of Kelvingrove

Perhaps I may support the noble Earl, Lord Selkirk, on this point. I have had communication on a very similar point which I would imagine would be included in this particular clause by this amendment. It appears that there is an omission, apparently a gap in the Scottish law, which may be able to be corrected in this Bill. The story I have been sent is that a hedge-cutting machine threw thorns across a road and they burst the tyres of a vehicle; the owner had very great difficulty in getting any recompense from the farmer or in persuading the police to take any action. That is bad enough, but of course there also could have been considerable personal injury; there was none in this case, I am glad to say—but there could have been.

I understand that in England and Wales the position is clearly covered by the Highways Act 1980, Sections 148, 149 and 161. I can summarise these; they provide that if without good reason a person deposits anything whatsoever on a highway to the interruption of any highway user he commits an offence, as he does if a highway user is injured or endangered in consequence of such deposit. Under Section 161 a highway authority has power to remove a deposit which constitutes a nuisance, charging the cost to the person who made the deposit.

I understand that there is a comparable provision in Scottish law in Section 24 of the Roads (Scotland) Act 1970, but this is not carried on to the Bill we are discussing. According to my information, the words in the Bill appear not to contain anything like the existing Section 24. Accordingly, it seems desirable to incorporate into this Bill provisions modelled on the Highways Act 1980 by way of new clauses. I wonder whether at a later stage the Lord Advocate, having considered the points made by his noble friend and myself, would consider adding new clauses, unless he can explain that Section 24 of the Roads (Scotland) Act 1970 is in some way covered in the present Bill.

Lord Mackay of Clashfern

My impression is that the situation to which the noble Lord, Lord Carmichael of Kelvingrove, referred is covered, but since it is a particular case I should like to look at it in more detail and deal with it later.

As regards the amendment of my noble friend Lord Selkirk, the position is that in Clause 143 we have defined "roads" to include the verge because we entirely agree that it is extremely important that matters of road safety are not confined to the carriageway in the situation to which he referred. Therefore, in the interpretation clause, to save repeating it in every case, the definition of "road" expressly states, on page 91, line 15, of the Bill, that this includes the road's verge. That is intended to cope with the problem to which my noble friend referred. It is not necesssary to state every time that the verge is included.

The Earl of Selkirk

Is it clear from this that there is a duty on the road authority, within the meaning which my noble and learned friend says, to clear it away? Under what sanction can that duty be brought into play?

Lord Mackay of Clashfern

Clause 57 makes it an offence to cause an obstruction except with the consent, in writing, of the road authority, and there is no question of the road authority consenting to something that constitutes an obstruction. Anyone who contravenes that clause commits an offence. The situation would be that if a contractor or employee, or someone of that sort, deposited something on the verge and created an obstruction that person would be committing an offence unless he did so with the authority, in writing, of the road authority—and there would be no question of that.

The Earl of Selkirk

May I put a direct question to my noble and learned friend? Supposing an employee of the road authority does exactly that, and someone using the road wishes to get that obstruction removed. How can he do so? Can a user of the road sue the road authority? I happen to know of a case in point where the local authority has declined to take away something of that nature. Can an action be brought against the road authority?

Lord Mackay of Clashfern

The situation is that if it is done without the consent of the road authority, an offence is committed. If a danger is created by the actions of the road authority that would certainly be actionable. But the main sanction is a direct one. It is a criminal offence if a person puts an obstruction on the verge without the consent, in writing, of the road authority.

The Earl of Selkirk

I shall not pursue this, but clearly he will be an agent of the local authority and, as such, will be acting on behalf of the local authority. The local authority will therefore be responsible for his actions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Selkirk moved amendment No. 90:

Page 37, line 10, after ("obstruction") insert ("or seriously restrict the view of on-coming traffic").

The noble Earl said: There is not a great deal in the Bill about obstructing views as such but more about obstructing passage. I do not say that this part of the Bill is the only place for such a reference, but there is nothing in this clause which deals with this point. It is an important point, and just as important as the actual obstruction of the road. I suggest to my noble and learned friend that it should be better emphasised. Whether or not this is the right place I am not sure, but a view that is obstructed is a matter of importance on any road. I beg to move.

Lord Mackay of Clashfern

I think that the provisions that particularly relate to the obstruction that my noble friend has in mind are adequately covered by Clauses 80 to 89. But I shall certainly look again at the matter in the light of what he has said. However, that is my impression having looked at his amendment and the Bill.

The Earl of Selkirk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.16 p.m.

On Question, Whether Clause 57 shall stand part of the Bill?

Lord Hughes

I take the opportunity of the debate on whether the clause shall stand part of the Bill to ask the Government what their intentions are for further debating the Committee stage of the Bill. We had an informal discussion about what would be a reasonable time to adjourn. No one can say that we have delayed the legislation. We have been exceedingly co-operative. But with all the remaining amendments there is no way that we can sensibly conclude proceedings on this Bill tonight. Many of the remaining amendments are Government amendments in the name of the noble and learned Lord the Lord Advocate and at least one could be the subject of a major debate. There are large amendments to the schedules and all the amendments to the schedules are Government ones.

I was asked how long we might take if the debate went over to another day. I cannot possibly give an undertaking that we shall finish within a certain time because I do not know how long the Lord Advocate will take on his amendments. It is not in the traditions of the House that we should go on unreasonably. If the Government wish to continue and attempt to finish the Bill tonight, we shall play along, but I cannot guarantee that we shall continue to be so co-operative if there is no co-operation from the Government.

Lord Lyell

As the noble Lord knows, I have borne the heat of the entire afternoon in two previous debates. I have no instructions. The noble Lords, Lord Hughes and Lord Carmichael of Kelvingrove, could perhaps continue until instructions are obtained through the usual channels. I yield my position to my noble friend Lord Denham to see what he has to say.

Lord Denham

This is the second day that we have spent on this Bill. I hesitate to keep your Lordships short of time on this important Bill. Of course your Lordships must consider it to the fullest extent that you feel necessary. On the other hand, I do not think that it is possible to say that we must have as much time as we want to consider the Bill; but, equally, that we must rise at quarter past eleven in the evening. This is the second day. I remind your Lordships that on the first day we got through 21 amendments in quite a long time.

Lord Underhill

Three and a half hours.

Lord Denham

No, more than that. I then suggested that the House rose at, I think, a quarter to eleven rather than asking your Lordships to stay longer in the hope that we should be able to finish today. We have not made very good progress today, when one considers that we got through 21 amendments on the first day, we have just completed Amendment No. 90 now and there are over 170 amendments. Of course I should not ask your Lordships to sit for long if we could have a reliable indication as to the amount of time longer that we need on the Bill. What is the point in adjourning the House at twenty past eleven, coming back for a third day and having to sit until three o'clock in the morning?

Lord Hughes

The noble Lord says that on the last occasion we debated only 20 or so amendments. I remind him that tonight we did not start consideration of the Bill until ten to six, and we adjourned for 40 minutes for dinner, which is the equivalent of starting at seven o'clock. We have been debating the Bill for four hours and twenty minutes and have dealt with 60 amendments. We are working at least two and a half times the speed that we did on the first occasion.

I was asked whether I could give an undertaking that if we adjourned at a reasonable time we could finish the Bill in two hours. I could not possibly do that. I thought three hours might be possible, but I cannot give undertakings. I am not in charge of the Bill on this side of the Committee. I am playing this part today because my noble friend Lord Ross of Marnock is unable to be here, but any undertaking which I give would not be binding on him. To suggest two hours is quite unreasonable. I would say to the noble Lord: has he looked at the amendments, has he asked his noble and learned friend how much time he is going to take to handle his amendments, because all the amendments to the schedules are Government amendments?

I know that it is not right to quote what has been said, and I am not going to do it. But I shall remind the noble Lord the Government Chief Whip of what he said to me at the close of the last proceedings and of the threat which he made to the Opposition, because of his displeasure at what had taken place the first time out. If this is in fact the carrying out of a threat, then we shall have to work on the basis that we are being threatened—and threats have a very nasty habit of rebounding on those who make them.

Lord Denham

It seems to have rebounded on me tonight, if I may say so. But this is not the way that we normally decide things in this House. We normally work through the usual channels and decide how far we should go on a certain occasion on a particular Bill. I hope that the noble Lord, Lord Hughes, will in future leave it to the usual channels, because this is the way it is normally done.

I have had consultations with the noble Lord the Opposition Chief Whip, and I hope that I shall continue to do so. But if the noble Lord, Lord Hughes, wishes to raise the matter on the Floor of the House, then I must reply as best I can. The noble Lord will realise that in any Administration the difficulty of getting the Government business through is constant. In this House we have to proceed by consent, we have to work through agreement, and we have to come to some kind of arrangement. The noble Lord, in his time as a Minister, will have appreciated that we talk to the other side. As Opposition Chief Whip I have given undertakings to the Government Chief Whip of the day that if we were to rise at a certain time, I would get the business through by a certain time.

The noble Lord says that he cannot give undertakings for one of his noble friends. When the noble Lord is speaking from that Dispatch Box he can give undertakings, because he is giving an undertaking for Her Majesty's Opposition, just the same as I can give undertakings from this Dispatch Box that are binding on my noble friends here.

Let us go on a little longer. The noble Lord the Opposition Chief Whip and I will have a few words about it and see where we can get, but I would ask your Lordships not to feel that I am trying to gag the House in any way about this. We have to work by mutual understanding and mutual agreement here. Time is limited, and we have to ration it out for the business that is to be done.

The Earl of Selkirk

May I make just one observation—

Lord Hughes

If the noble Earl will, permit me, I would say that I do not want to alter the arrangements. As the Chief Whip has said, normally the arrangements work perfectly satisfactorily. But until dinner there was no indication at all as to how far we might go. I doubt very much whether the Lord Advocate would say that the Bill has been handled unreasonably. We have spoken briefly on amendments. The only amendment on which in fact there was any lengthy debate was one from the noble Earl, Lord Selkirk, which attracted support from a variety of parts of the Chamber. Apart from that, every single amendment has been handled expeditiously. So I think that we have done our best.

So in the negotiations which he is suggesting the Government Chief Whip should first of all ask the Lord Advocate what would be a reasonable amount of time that he would expect to take on the Government amendments. At the same time my noble friend Lord Carmichael and myself will look at the Opposition amendments, and we can tell him what we would want to add to the Government's time as a reasonable basis on which to continue in order to finish the Bill, whether tonight, or on some other occasion. That is reasonable. To expect me to give a guarantee of the time required when two-thirds of the amendments are Government amendments is unreasonable.

Lord Denham

I shall give way to my noble friend Lord Selkirk in a moment because I think, having started this, it is right that we should air all our grievances. I do not think that this is the right way, if I may say so, to conduct the negotiations between the sides. It has never been done this way before, and, if I may say so, it was the noble Lord, Lord Hughes, who raised this point. I have, of course, been in contact with the usual channels. This has always worked very well before. I think that if we could possibly leave it that way, it would be better in the future. I do not know whether my noble friend wants to come in on this.

The Earl of Selkirk

With great respect to my noble friend, we are now in the month of January. It is important to remember that. Secondly, when he had his discussions in the usual way, did he consider that this Bill would start at 6 pm, I think it was—

Lord Hughes

Ten minutes to six.

The Earl of Selkirk

—with something like 150 amendments to get through? Would he really have done that with an English Bill?

Lord Denham

Yes, my Lords. I assure my noble friend that I would have done it with an English Bill or even a Welsh Bill.

Lord Hughes

If it had been an English Bill, there would not have been only one speaker from the Opposition Benches on it.

Lord Denham

That may be so, but he might have been shorter.

Lord Hughes

I suggest that the noble Lord looks at the timing tomorrow to see how long we have spoken.

Clause 57 agreed to.

Clauses 58 to 62 agreed to.

Clause 63 [Regulation of drivers of horse drawn carts etc.]:

11.27 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 91:

Page 41, line 5, leave out second ("a") and insert ("one or more").

The noble Lord said: This is a drafting amendment which appears unnecessary but with which I suggest that we take Amendment No. 92:

Amendment No. 92: Page 41, line 5, leave out ("(or by draught animals)").

It seems to me neater, instead of saying "or by draught animals", to have the words "by one or more draught animals." I hope that I may achieve some victory on this small point. I beg to move.

Lord Mackay of Clashfern

I am happy to accept this amendment as an improvement. A minor qualification is that the word "animal" that remains at the end of line 5 on page 41 should be plural. If that can be done by manuscript amendment, I am happy with what is proposed.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment 92:

[Printed above.]

On Question, amendment agreed to.

Clause 63, as amended, agreed to.

Clause 64 [Maintenance of vaults and cellars etc.]:

Lord Carmichael of Kelvingrove moved Amendment No. 93:

Page 41, line 7, leave out ("things").

The noble Lord said: This is another small point with which the Lord Advocate may be able to help. The word "things" seems superfluous. Apart from that, it does not ring true in an Act of Parliament. Instead of "the following things", the words "the following" would seem to be quite adequate.

Lord Mackay of Clashfern

I am sorry that I cannot accept this amendment as an improvement, although I have had a good deal of discussion with the draftsmen about it. The difficulty is that the word "following" comes a good deal before the things that are supposed to follow it and are being referred to. We shall certainly look again to see whether the clause can be improved on the lines suggested because I can see that there is possible scope for improvement, but I do not think that the amendment quite meets the point.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 94 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 95:

Page 41, line 12, leave out from ("tunnel") to end of line.

The noble Lord said: This amendment has been tabled in order to get an explanation. Paragraph (b) says: every opening into any such vault, arch, cellar or tunnel from the surface of the road".

It appears that it does not cover one that is going under the road, but only covers one that somehow or other moves from the road. I may have totally misinterpreted it. However, it seemed to me that: from the surface of the road was not only unnecessary, but positively confusing. I beg to move.

Lord Mackay of Clashfern

The intention is to deal with openings which are within the road boundary. The amendment, I think, would have the effect of obliging owners or occupiers to keep in order entrances to vaults, arches, et cetera, which were nowhere near the road, and that does not seem to be right.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 96 not moved.]

Clause 64 agreed to.

Clause 65 [Power to direct that doors etc. should not open outward into road].

[Amendment No. 97 not moved.]

Clause 65 agreed to.

Lord Denham

I think it is probably the feeling of the Committee that we should come to a convenient stopping place. After consulting the officials and my noble friends I find that we have now reached the place where we are about to start Part VI. So if your Lordships would like to adjourn at this stage, it would probably be a convenient moment to do so.

I beg to move that the House do now resume.

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

House resumed.