HL Deb 18 March 1986 vol 472 cc951-6

9 p.m.

Lord Dean of Beswick

My Lords, I beg to move that this Bill be now read a second time. I know that your Lordships present will bear with me if, for a few moments, I pay my respects and regards to the right honourable Michael Cocks, the Member for Bristol, South, who piloted this small but important Bill through another place.

I do so because for quite a while I was closely associated with Mr. Cocks in his role as the Labour Chief Whip in another place. This was a role in which he served with distinction for nine years, four of them in government, when his organising skills were put to a severe test because it was a minority Labour Government. By virtue of his organisation and zeal they were kept in Office far longer than a lot of people expected.

Though I talk about his organising zeal, he was in addition a man of great compassion. He was always ready to listen to Members who had genuine problems, and on every occasion when it was possible he responded. Following that period he spent five years as the Chief Whip in Opposition. He also fulfilled that job efficiently, although it is not as rewarding as being a government Chief Whip. I believe from the remarks that have been made about him that he held the total respect of all sides of the Chamber in the other place. He did a first-class job as Chief Whip and also, as I understand, a first-class job in his capacity as Member of Parliament for the constituency of Bristol, South. It is sad that in these days of politics those two highly commendable qualities do not appear to rate as highly as they have in the past. He will obviously leave the other place when the next general election is called. I have no doubt that, as with hundreds of people who have graced the other place before, the other place will be the poorer for his no longer being there.

Knowing him personally and the way that he dedicated himself as Chief Whip and as a constitutency Member of Parliament, I have to say that the people of Bristol South may also be the losers as a result of what has happened. I thought that on this occasion your Lordships would perhaps bear with me if I briefly paid respect to the service that that particular Member of Parliament, colleague and friend has given over the years.

May I now deal with the Bill that he piloted through another place? It has to be the straw and stubble burning in the main. Straw and stubble burning is largely controlled through local by-laws made under Section 235 of the Local Government Act 1972. However, to avoid any risk of conflicting requirements, the Act does not authorise by-laws to deal with matters covered by statutory legislation. Consequently the by-laws cannot tackle the problem of smoke from careless straw and stubble burning obscuring visibility on roads, this being dealt with under the Highways Act 1980.

Section 161(2) of that Act currently provides that: If a person, without lawful authority or excuse, lights any fire, or discharges any firearm or firework, within 50 feet of the centre of a highway … and in consequence a user of the highway is injured, interrupted or endangered, that person is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale (£400). The difficulty is that this is not necessarily an adequate distance to allow smoke to disperse safely, particularly when measured from the centre of a wide major road. The code of practice on straw and stubble burning drawn up by the National Farmers' Union, for example, advises farmers not to burn within 100 metres of a motorway or dual carriageway. The penalty is also low compared with the maximum fine of £2,000 for offences under the by-laws, and a farmer burning his own straw and stubble might argue successfully that he was acting with lawful authority.

The proposed Bill, which would amend the existing provisions on fires in Section 161(2), would make it an offence to light, or direct or permit to be lit, a fire at any distance froma highway if a user of the highway is injured, interrupted or endangered by the fire or the resultant smoke. The maximum penalty would be level 5 on the standard scale, £2,000, in line with the by-laws.

The provision would apply to all fires, since there is no equitable reason to single out straw and stubble burning. No distance from the road is specified because it would be impracticable to impose universal standards without regard to the size of the fire, the type of road or local weather conditions. It would be for the individual to ensure that what he was doing was safe but, unlike the existing offence, it would be a defence to show that all reasonable care had been taken. The provisons relating to firearms and fireworks and to fires lit in the highways itself would remain unchanged. Local authorities, as well as the appropriate highway authority, will be able to prosecute, so, where an offence under the new provision is linked to other offences under the by-laws, the case can be dealt with by a single prosecuting authority.

Just before I came into the Chamber I was handed a note by the noble Lord, Lord Henderson, who had put his name down to speak. He is just recovering from a bout of the 'flu, and sends his apologies that he had unfortunately had to withdraw, thinking it better to go home and rest and get better. However, he indicates in his letter his general support for the provisions in the Bill. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Dean of Beswick.)

9.8 p.m.

Lord Denning

My Lords, I should like to add my enthusiastic support for this Bill, so ably introduced by my noble friend Lord Dean of Beswick. This is a very useful Bill. Your Lordships, like me, will often, when driving along a road, be furious when smoke or fire from stubble or straw-burning comes across the road and obscures the view. I have a field or two, and I am equally careful to tell my man when he is lighting a fire to take care that the wind is in the right direction and the smoke does not go across the road. Those are the simple dangers that we know.

Our existing law, now codified in the Highways Act 1980 but going back for many years, is quite incapable of dealing with the question because it applies only when the fire is lit within 50 feet of the centre of a road. That is very unsatisfactory and insufficient because of a leading case. This is not reported in the ordinary reports, but it is Hunton v. Last reported in 1965 in 109 Solicitors' Journal at page 391. It came before the magistrates at Stowmarket in Suffolk. A farmer had a heap of straw 60 yards from the centre of the highway, but there was a grass verge in between and although he lit the straw at that distance away it spread and was carried by the wind across the road. In consequence, there was a collision between two cars, whereupon that farmer was prosecuted before the magistrates. They overcame the 50 feet limit, because it was 60 yards. They said that he intended all the time that the fire should run along the road. So the magistrates, finding that he had that intention, found him guilty and fined him £2.

He appealed to the Divisional Court, over which Lord Parker, the Lord Chief Justice, was presiding.

Lord Parker said it was a very difficult and doubtful case, but on the whole he would not interfere with the magistrates. I am afraid that in strictness that farmer should have been acquitted because his fire was 60 yards from the centre of the highway whereas the statute said only 50 feet.

It is to remedy that absurd decision that this Bill is now introduced. The Bill says that it does not matter how far from the centre of the highway one is: if one lights a fire and that spreads across the road and endangers traffic on the road, then prima facie, one is guilty. The man in the car cannot prove anything except that smoke or fire went across the road. The man lighting the fire is prima facie guilty, but he can defend himself. This is one of those unusual cases where the burden of proof is on the defence. In this case the man who is liable is the man who lit the fire, and not only the man himself but the farmer or anyone else who directed him. It is made clear. If one goes against that and shows that the fire occurred, wherever it started, and endangered the traffic, then the burden of proof is on him.

It will give him a good let-out if he can show in discharging the burden of proof that at the time he lit the fire he was satisfied that it was unlikely it would spread: that perhaps the wind was in another direction, or that he was tending it all the time. If he can show that he gets away with it, but he also has to show, even after that, that he did all he could reasonably do to prevent it from spreading. If he can prove that he was completely innocent in the matter, then he is acquitted. Otherwise, if he lets this fire go across the road then prima facie he is guilty and should be found guilty accordingly.

This is a small Bill but it is remedying a grave defect in the previous legislation if it is going to deal effectively with this grave nuisance of stubble or straw-burning across the road. It is a small Bill but a most valuable Bill, and I hope that your Lordships will give it your entire approval.

9.15 p.m.

Lord Underhill

My Lords, as is customary, any speech on a Private Member's Bill by the Opposition from this Dispatch Box is purely an individual view. My name was added to the list of speakers merely in case there was any criticism of my noble friend's Bill. I should like to congratulate him on the way he introduced the Bill, though, with the support of the noble and learned Lord, Lord Denning, this is a case where, frankly, any extra support is unnecessary. There was also the valuable support that was promised by the noble Lord, Lord Henderson of Brompton. As I noted very carefully—at least I think I noted carefully—there was not a single word uttered at any stage in the other place and I am certain that the noble Earl is going to accept this Bill on behalf of the Government. As the noble and learned Lord, Lord Denning, has said, it is a very useful Bill. It clears up an anomaly and it is one which I think it is very valuable to support.

9.16 p.m.

The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness)

My Lords, I too should like to thank the noble Lord, Lord Dean of Beswick, for his introduction of the Bill. He gave the House a very clear exposition of what will be achieved if this Bill reaches the statute book. It was the noble and learned Lord, Lord Denning, who put his finger on it when he referred to road accidents. Road accidents are a source of concern to all of us. I am certain that all noble Lords would agree with me in saying that we should take sensible and reasonable steps to make our roads as safe as possible. For that reason the Government support this Bill.

Smoke on roads is not a major hazard but it is a hazard which, by and large, can be and ought to be prevented. There are provisions in the Highways Act 1980 which deal with this problem but, as has been said, they are inadequate. They apply only to fires lit within 50 feet of the centre of a highway, but now that we build wider roads than formerly this is not sufficient to protect major high-speed roads in particular. In addition, the maximum penalty under that part of the Act currently stands at £400, and that really is too low given the problems that can arise.

I should perhaps make it clear that although this proposed change to the Highways Act covers straw burning, it will have a general application to all fires lit off the highway. The Government fully support the view that it would be a false distinction to separate out straw and stubble fires from any other fires and, indeed, it applies to all of us who have a garden next door to a highway. If the noble Lord, Lord Dean, happens to burn some leaves in autumn and the smoke goes across the highway, then he, too, will come under the Act (as it might become) unless he takes due precautions and the wind was blowing in a totally different direction when he started and he took due preventive measures.

The Highways Act has always applied to all fires without distinction and there is no good case for changing this approach. The Bill is intended to ensure that anyone who intends to light a fire which could affect visibility or safety on a road should pause and think whether they have done all they reasonably can to prevent inconvenience, danger and possible injury to road users before they strike the match. That is the point. The point is to try once again to get at the rogue person who lights a fire. The sensible person takes precautions anyway. The very great majority of farmers, as I have said on more than one occasion, are sensible when it comes to straw and stubble burning and most people who are not farmers but who light fires next to highways also give very serious consideration to the consequences of their actions. Therefore, it is the rogue person whom this Bill seeks to tackle.

I would urge the House to agree that this Bill should be read a second time. I understand that it commands the support of the National Farmers' Union, the Country Landowners' Association and the Associations of County and District Councils. We believe it is a useful and desirable measure which will give better protection to road users in the future.

Lord Dean of Beswick

My Lords, may I very briefly say that I do not intend at this time of the night to delay your Lordships for very long. May I express my appreciation to my noble friend and colleague on the Front Bench, Lord Underhill, for his kind support of the Bill? May I also express my sincere thanks to the Minister, the noble Earl, Lord Caithness, for the very kind, considerate and objective way in which he has responded? I should like to pay special regard to the noble and learned Lord, Lord Denning. In the short period that I have been in your Lordships' House, I have quite clearly come to understand that to have the support of the noble and learned Lord, Lord Denning, on legal matters is very good support, and is a bonus on any legal Bill. He encapsulated what the Bill is really about when he said that it remedies a grave defect in the existing law. That is what the Bill is meant to do. That is why I think it has received such universal support.

In opening my remarks, I referred to the Member in another place who sponsored this Bill and piloted it through another place. Having been in another place and here, perhaps I may say that some of us go through public life without ever having the privilege of getting a Bill through of any kind. The first thing Michael Cox did when he stepped down as Chief Whip in another place was to sponsor this Bill. It was a very fine parting shot for him. I am grateful to those of your Lordships who are present for your unstinting support for the Bill.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at twenty-one minutes past nine o'clock.