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Clause 3—(Highways)

Volume 446: debated on Tuesday 27 January 1948

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 3, line 7, to leave out from "order," to "and," in line 9, and to insert:

"could have been made under Regulation sixteen, fifty-two or sixty-nine A of the Defence (General) Regulations, 1939, as in force at that time, stopping up or diverting the highway."
As the Committee knows, this Clause provides, in Subsection (1), that in certain circumstances, where it has been impossible to obtain an order under Defence Regulations 16 or 52 to stop up a highway temporarily that omission can, in effect, be rectified and the stopping up made permanent by the use of the powers which are provided in Section 15 of the 1945 Act. This Amendment does not raise the question of principle as to whether this Clause is one which the Committee will accept or not; the House discussed it on Second Reading, but whether Members would like to ask any questions about it I do not know.

All the Amendment does is to make a slight change in this Clause. It adds Defence Regulation 69A to the other two which already appear in the Clause— Defence Regulations 16 and 52. If there has been a failure to obtain an order to stop up a highway, and that order could have been made, not only under Defence Regulations 16 or 52, but also under Defence Regulation 69A, the like powers shall be available to use Section 15 of the 1945 Act.

Since the Clause was drafted it has been brought to light that there have been a very few instances of highways which could have been stopped up by the appropriate authority—the Minister of Transport—under Defence Regulation 69A. This regulation gives the Minister power to stop up or divert any highway passing through land used, or intended to be used, for the purpose of a railway, and to prohibit or restrict the exercise of a right of way over any such land. There are a few highways in respect of which an order could be made under that regulation. All I seek to do is to add that regulation. If the Committee think that the Clause as a whole should be accepted, I put it as a matter of common sense that this addition or sligh extension should also be accepted, because the principle is the same as that of Subsection (I).

The hon. and learned Gentleman has moved this Amendment in disarming fashion. He has pointed out that the only effect of the Amendment is to attract into Subsection (1) (a), Defence Regulation 69A. I was interested to hear him give some information about that regulation. I was wondering what it provided. I have here what I think is still the last volume of Defence Regulations, that which was published in February, 1946. One finds that that volume does not contain Regulation 69A at all. It is excluded from the book. The hon. and learned Gentleman has now been kind enough to hand to me a slip of paper on which is printed Defence Regulation 69A. The Regulation was made in 1941. I should indeed be grateful for an explanation why that Defence Regulation was omitted from the volume published in 1946, if that Regulation was in force in 1946 and is in force now. This becomes a matter of some importance, and the Committee ought to give it somewhat careful consideration.

In 1945 we had a very clear statement from the Home Secretary during the discussion upon another Bill. Speaking on behalf of the Government, the Home Secretary said:
"It has been agreed between the Departments that no fresh order for the closing of a road will be made without the concurrence of the Minister of War Transport. So far as it can be foreseen the power would only be required in two special types of case, one in order to facilitate open cast coal working. It may be necessary to break up a footpath and then open it to the public when the coal has been extracted from the land over which the footpath goes. It may be necessary in order that the existing closed road should be reopened."
If I understand that aright, that was a definite pledge given by the Home Secretary when, in 1945, he was dealing with the subject of the closing of footpaths.

It is a pledge which has been repeated, and indeed amplified, by the Home Secretary. I do not want to get out of Order, but I think I am entitled to point this out, when we are asked to agree to the giving of power for closing permanently not only highways and footpaths which have been closed temporarily under existing Defence Regulations, but highways and footpaths which could have been closed under existing Regulations. That is what is being sought under the Amendment. I think I am entitled to remind the hon. and learned Gentleman and the Government of the express statement made by the Home Secretary in which he gave pledges that the power of closing footpaths in ways other than the normal lawful fashion would not be carried out. I have a few passages which I wish to quote to the Committee. As recently 7th November, last year, the Home Secretary said:
"I assured the House, when the 1946 Act was before it in the form of a Bill that this regulation would be sparingly used, and I think that an examination of what has been done under it will prove that that pledge has been carried out."
That was a reference to Regulation 16, which is referred to in the Clause.
"It is a regulation which I have always regarded with considerable misgiving."—[OFFICIAL REPORT, 7th November, 5947; Vol. 443, c. 2536.]
I wish the right hon. Gentleman were here now to find that, apart from retaining power permanently to close footpaths under Regulation 16 where those footpaths had been closed temporarily, the Government are now seeking power to keep closed footpaths and highways which have not been closed under Regulation 16 or under Regulation 69A, but which might have been closed, if someone had thought of doing it in time.

7.45 P.m.

In the course of the discussion on that matter I was given a pledge and an assurance by the Under-Secretary of State. So recently as 26th November, 1947, speaking in the Debate on the Emergency Laws (Miscellaneous Provisions) Bill, he said:

"where it was intended that a temporary stopping up should become permanent, there could be no objection to using the normal procedure, either under this Act"—

that was the Town and Country Planning Act—

"or the old procedure of quarter sessions."—[OFFICIAL REPORT, 26th November, 1947, Vol 444, c. 2013.]

—he was prepared to see that that would always be done. It would be hard to find words which were more definite and more clear in their implication.

In spite of what the Home Secretary said about there being so few cases in which powers had been exercised for stopping up highways by regulation, I would draw to the attention of the hon. and learned Gentleman the fact that hardly a week goes by without a mass of regulations being made, signed by an under-secretary of the Ministry of Transport, and purporting to be made under the 1945 Requisitioned Land and War Works Act, for the closing of a highway. I deplore the intention expressed by the Amendment of the Government still further to widen the power of keeping a footpath or highway closed which has never been legally closed, but which might have been legally closed under Regulation 69A.

I would like the Committee to consider for one moment what will be the position of one of those societies which do such good work in trying to keep open footpaths which have been in existence for a very long time. Let us examine a particular instance where the powers in Defence Regulation 69A have been exercised. Hon. Members will find that a path which was a public right of way before the war has been permanently

obstructed and stopped up. They may then say, "We want to test this matter; we want to make inquiry to see whether the stopping-up is lawful or illegal." As I see it, they will have the greatest possible difficulty in determining whether or not that is lawful or illegal. They will have to find out whether that particular footpath could have been stopped up or diverted by Defence Regulation 69A, if they are sufficiently fortunate to be able to borrow a copy of it from the learned Solicitor-General, and I am grateful to the hon. and learned Gentleman for his assistance. If he can provide them with a copy, it may facilitate their task a little, but, even then, to make sure that it is illegal, and before they start trying to get the matter re-opened, they would have to make inquiries to find out whether anyone did try to stop it up during the war period, which might have been done.

I would ask the hon. and learned Gentleman, bearing in mind the many speeches which ills right hon. Friend the Home Secretary has made in favour of the preservation of footpaths, and the speeches he has given and the statements he has made, and in view of the power contained in Defence Regulation 16, to give this matter further consideration. It is my belief that there is apparently no reason why, in the specific case to which we were referred on Second Reading, reliance should not be placed now on the old procedure at quarter sessions. The case that was put to us was the case of a footpath or highway which was obstructed by a building erected during the war. I believe that these cases are very few in number, and I hope the hon. and learned Gentleman will be able to say so, indeed, I think they may not be more than ten. I think we ought to be given some indication of the particular kind of case to which this Clause will apply, but, supposing that that is the particular case, or some case similar, does the hon. and learned Gentleman say that it is impossible to obtain an order at quarter sessions in these circumstances, and that it is impossible to obtain one rightly?

My experience is contrary to that, and I even have had experience of a footpath being closed at quarter sessions when that footpath had completely disappeared and there was doubt where it actually ran. I suggest that the Government could use the

old procedure, that there is no need for incorporating this power in Defence Regulation 52, and that the quarter sessions procedure, whereby the public interested in the preservation of footpaths are notified of what is intended to be done, is far better in the interests of all those who are concerned with the good of the countryside. I hope the hon. and learned Gentleman will give further consideration to this matter, and that he will be able to say that this power is going too far and is unnecessary.

I should like to apologise to the Solicitor-General for the fact that I did not hear the whole of his remarks, but I did hear a great many of his remarks at the end. I say frankly that I could only listen to a speech such as his, which was a series of quotations of this regulation, purely as a layman and with a feeling of hopefulness that some parts of it might have some relevance to the Bill. As laymen, we have to assume that it had, having had the higher legal authority of my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller), who again quoted a series of Orders on these matters. As I understand the Amendment which the Government are seeking to make to the Bill now, and if I can put it without quoting anything or using any legal phrases, the real effect of it is that the Government have discovered a weak point in the Bill, which is intended in every possible way to restrict all public rights in this matter.

They have now found a small loophole in the Bill, so that, unless they have this Amendment, they cannot be quite sure that, if they wish to stop up a public road or footpath, they have the power, not just for a short time, for which they might excusably ask, but for a considerable period of five or six years. Even though the latter is a shocking proceeding, which we should regard as a grave and indecent thing, I believe that to close them up permanently is a very much more disastrous thing. Once we have done a thing permanently, the people lose all interest in the matter, but, if it is only a temporary matter, the people will look forward to the day when they get rid of the restriction. I am ready to give way to the hon. and learned Gentleman if he wishes to intervene.

It was not really to answer the questions of the hon. Gentleman, but to make a suggestion by raising a point of Order, that I wished to rise. Both hon. Gentlemen who have spoken have referred to matters in the general substance of the Clause, and I am anxious, at the appropriate time, to answer them. Whether it would be convenient to answer these general observations on the Bill and the case against the Amendment, and to repeat them again later is, I think, rather doubtful.

I am obliged to the Solicitor-General. The hon. Gentleman does appear to be addressing himself to the Clause as a whole, and that in a very wide sense, and not to the Amendment at all.

It would be rather easier for me, as this is a technical point, if the hon. and learned Gentleman would say where I have gone wrong on this Amendment. I was only trying to deal with the point of the Amendment.

Almost the whole of the hon. Gentleman's speech has gone wide of the Amendment, and he has hardly been on the point at all.

Will the hon. and learned Gentleman, then, answer a few questions concerning Defence Regulations 16, 52 and 69A of 1939? In the first place, would they entitle the military authorities on, say, a moor to close up a highway which has never been officially closed before? I would like to know that, and I think it is quite a relevant question. Does that power come under Defence Regulation 52 or 69A? They are, apparently, two separate regulations. We have heard a certain amount about the use of these highways and footpaths. What is the position as far as footpaths which go along a cliff are concerned? Such footpaths were very often closed during the war, and have not since been officially reopened. Are they closed up under this particular regulation? It is a very complicated matter, but I would like to know where we are.

8.0 p.m.

I must point out to the hon. Gentleman that we are discussing highways, not footpaths.

On a point of Order. Am I not right in saying, Major Milner, that, in law, the word "highway" always includes the word "footpath"?

I thought the hon. and learned Gentleman used the word "footpaths," but if footpaths are out, and if it is only a matter of public highways, I really am rather beaten about it. Quite frankly, some of these paths were used in the old days as highways by smugglers with animals, so that, really, they are not footpaths. However, I will not develop that, except to say that, if they were then highways, they are just as much highways today. Of course, this goes back a very long way.

I should like to have the hon. and learned Gentleman's view about the matter of access to beaches. There, undoubtedly, we have a highway where we could take a horse and cart in order to collect seaweed. They are blocked by military walls of some sort, but the matter could easily be put right. However, one has to approach at least four or five different Ministries, including the most incompetent of them all, that of Town and Country Planning. I want to know whether this has anything to do with the closing up of that kind of highway. It is a highway for that purpose, and has always been regarded as such. Can the hon. and learned Gentleman tell me whether it comes under either of these Sections, and, if so, whether they wish to close them at the present time.

With regard to the question of the hon. and learned Member for Daventry (Mr. ManninghamBuller), Defence Regulation 69A expired some time ago, but, as he will remember, Clause 3 (1) of the Bill which we are discussing speaks of time before February, 1946. I think that is the answer to his point.

With regard to the questions asked me by the hon. Member for Torquay (Mr. C. Williams), there is power under each of these regulations to stop up footpaths which are included in the expression "highways." These powers exist when the necessary conditions which are set out in the two Defence Regulations exist, but, without knowing the exact circumstances relating to each footpath, I cannot say under which Order it was made.

Now that we have, apparently, to discuss footpaths and highways, I think that the Government, if they must force this Amendment into the Bill, should cease bringing in Amendments of this character—the original Bill is bad enough—in order to give themselves more power to do away with footpaths and highways, and to make life inconvenient for the country as a whole. However, I do not suppose they will have any sympathy with those who want to keep public footpaths open. This Amendment, as it stands, is a thoroughly bad one. It is only intended to make things worse in the rural districts, and no promise has been given by the Minister that he will use it harshly. When a Minister gives no such promise, one may be perfectly sure that the Government intend to take every possible advantage of a seemingly inoffensive Amendment such as this. I believe it has been deliberately put forward in order that they may close up many of these places.

Amendment agreed to.

I think it would be for the convenience of the Committee if the next two Amendments were taken together.

I beg to move in page 3, line 11, to leave out:

"as a result of those circumstances."
I was going to suggest, Major Milner, that this and the next Amendment, in page 3, line 12, after "been," insert "continuously" should be taken together, as you have suggested.

These are really drafting Amendments. I hope the right hon. and learned Gentleman will find it possible to accept them because I think they make the object of this Clause better and clearer. In Subsection 1 (a), as I understand them, the words:
"existing at a time before the twenty-fourth day of February, nineteen hundred and forty-six"
mean that the conditions exist then which would entitle the authorities to close a footpath or highway under one of these three regulations. When we come to Subsection 1 (b), we find
"as a result of those circumstances, the exercise …"
has been prevented. Surely, it cannot mean "those circumstances." It is not because one could not have used the power if one had wanted to, that one has, in fact, been prevented from going along the highway or footpath. Therefore, with the greatest respect to those who drafted this intricate Measure, I think that there has been a drafting error in saying:
"as the result of those circumstances."
It means, in fact, as the result of quite different circumstances, although the circumstances existed whereby if one thought of doing it, one could close the footpath. There has to be the additional circumstances that the use of that footpath has been prevented.

If these Amendments are accepted, it will mean that where the power existed under the Defence regulation, and where that power was not exercised, but where, in fact, the footpath has been continuously obstructed, an order could be made for its permanent stopping up. The word "continuously," is obviously necessary because, otherwise, the situation might arise that one had the power before 24th February, 1946, that the prevention of the use did not take place until after 1946, and that there was a gap in the prevention of the use. I hope that, with that explanation, which I have put as concisely as I can—I have attempted to make this purely drafting, but tricky, point clear to the hon. and learned Gentleman—he will give me the pleasure of saying he will accept the Amendment.

I should like to express my gratitude to the hon. and learned Gentleman for having examined this Clause so carefully. I think his Amendment does substantially improve a very technical Clause for the reasons he has given, which I shall not endeavour to repeat because he has stated them much better than I can. He has made a case for the Amendment, and we feel quite satisfied that the case he has made is quite an adequate one, and that the Amendment does improve the Clause. I am grateful to him for the trouble he has taken over it and we accept this and the subsequent Amendment.

Amendment agreed to.

Further Amendment made: In line 12, after "been," insert "continuously."— [ Mr. Manningham-Buller.]

I beg to move, in page 3, line 20, to leave out Subsection (2).

This Subsection brings into the purview of this Bill, as extended to 1952, Sections 15, 16 and 21 of the Act of 1945. The Government will recollect that, at an earlier stage, we reminded them of the assurance and promise given by the Home Secretary in the Debate on the Supplies and Services (Transitional Powers) Bill in 1945. He then said:
"I have excluded altogether from the operation of the Subsection Part III of the Requisitioned Lands Act which deals with highways."—[OFFICIAL REPORT, 19th October, 1945; Vol. 414, c. 1602.]
He went on to explain that in future there would be no other power than the ordinary processes of law to stop up or divert highways.

As I understand it, this Subsection (2) is an oversight on the Government's part, because it will allow the Government to stop up and divert highways and to retain the stopping and diversion of highways until 1952 instead of 1948, which was the year which the Home Secretary was alluding to. It is a remarkable oversight, I should have thought, in view of the reports that have been published recently giving the opinion of the advisers of the Ministry of Town and Country Planning on the diversion and stopping up of highways. To quote from one, the Report of the Committee on Footpaths and Access to the Countryside, published in December, 1947, paragraph 114:
"We also hope that Parliament in future will not pass into law Clauses in public or private Bills authorising the closure or diversion of rights of way other than by means of the procedure which we have outlined, except where the closure or diversion is fundamental to the exercise of special power conferred by Parliament in a private Act."
Paragraph no states:
"We recommend that all applications for the closure or diversion of rights of way should be dealt with by Quarter Sessions acting through their rights of way committees in accordance with the procedure prescribed for the settlement of disputes in Chapter 3."

8.15 p.m.

I cannot really see why the Government have not acted on the very clear and specific promise of the Home Secretary, who has always been a great friend to access to the countryside; or why they have not paid attention to the Committee I have quoted, for it had on it very eminent people, including Sir Arthur Hobhouse and the late Mr. John Dower, who did so very much in the cause of

access to the countryside in Great Britain. Therefore, I cannot believe the Government can say that there is any real party feeling on this matter. We would rather that Sections 15 and 21 were not continued until 1952. To cut out this Subsection would mean that Government Departments, if they wanted a continuation of a stopping up and diversion of highways in these areas, would have to go to quarter sessions for these powers. That does seem to be the proper place for them to go. There would be the quarter sessions procedure. Whether it is amended or otherwise, is not germane to the present subject.

By that procedure we could have a proper publication of the matter—on the church door and so on; and the local authorities would know what was happening; moreover, the societies interested in access facilities—those representing hikers, for instance—and also the parishioners who cherish their rights of way, all would be properly notified. But if the Government have this power under this Bill, the who of the quarter sessions procedure is defeated. I would ask the Government to reconsider very carefully whether this Subsection is necessary, or whether they cannot adhere to the pledge given in 1945 by the Home Secretary.

I am sorry to say we feel that we cannot accept the Amendment which is now proposed, and I will endeavour to deploy my reasons for saying so. The case for this particular Subsection, containing as it does the extension in point of time of the power to use Section 15 of the 1945 Act, really hangs upon the extension of time for the exercise of the powers conferred by Part II of the Act. If the Committee—or, indeed, if the House before the Committee—decided that it would be proper that the powers for the acquiring of land that are conferred by Part II of the Act of 1945 should be exercisable until December 1952, it follows, in my submission, that, as a matter of logic, these particular powers given by Section 15 should be equally exercisable for the same period. For this reason: if it is decided to acquire land under the powers given by Part II, there must be equal power to deal with footpaths and highways running across that land. It may not be possible for some time, in the case of a number of pieces of land, to decide whether they will be acquired under the powers contained in Part II or not. Until that can be decided, it cannot be decided whether footpaths running over them should or should not he permanently closed.

That is why, if the Committee agree that the Government should have the power to use the provisions of Part II up to December 1952, it really follows as a matter of natural and reasonable consequence that they should also have power to stop up permanently footpaths and highways running across land within the purview of Part II, because the two hang together. I ask the Committee to envisage the position which would arise were we not to extend the powers given by Section 15. We might acquire land on which it was necessary to preserve the value of war works, and then find running across that land a footpath which had been stopped up only temporarily under the terms of a defence regulation. Clearly, if that land is to be acquired it should be possible permanently to stop up that footpath, and power should subsist for the same time as that for which we can acquire the land. The two hang together. If one is right, then the other must be right. That is the general case I make.

In that connection, I am not sure that I understood the hon. Member for Thirsk and Malton (Mr. Turton) to quarrel with me very much. As I understood the burden of his argument, he said, "If you must use the power in Section 15 permanently to stop up highways you should resort to the ordinary procedure by way of quarter sessions." He then proceeded to cite the report of the Committee on Footpaths and Access to the Countryside, quoting it—and I say this without intending to give offence—rather inaccurately, because if he looks at the Report a little more closely he will see they recommended an amended process of resort to quarter sessions; a process which, among other things, would leave out the power of veto at present possessed by certain bodies such as parish councils. They recommended an amended and not the full process of resort to quarter sessions under the terms of the Highways Act, 1835.

I turn to his argument that we should use the Highways Act, 1835, instead of the procedure laid down in the Act of 1945. If we stop up permanently a footpath under Section 15, we cannot do it by the exercise of a purely abitrary power. Supposing the Minister of Transport decides that he will close permanently a footpath which has been closed temporarily, what happens is that one of the amenities societies, for example, can raise an objection. If such an objection is raised, the matter has to be referred to the War Works Commission, who decide judicially whether or not the particular footpath should or should not be stopped up. If they decide that it should not be stopped up, if they overrule or go counter to the Minister's wish in the matter, one of two things happens.

In most cases the Minister is bound by their report. In certain limited circumstances, however, he can override the report, and if so he has to come to this House for approval of his order permanently stopping up the footpath. That is to say, he has to make an order which is subject to negative Resolution of the House of Commons, which, therefore, retains the ultimate control over the destiny of any particular footpath. I am quite sure the Committee will agree that that is a procedure affording a very specific safeguard to those interested in the fate of footpaths. That procedure was devised by the 1945 Act. The question, therefore, before the Committee is: should we use that procedure, which was devised specifically by Parliament in 1945 to deal with this sort of question, or should we go back and use the cumbrous procedure of the Highways Act, 1835?

Let me say a little about that latter procedure, which is extremely cumbersome. It may take six or seven months, even if no objections are raised. I have counted the steps, and there are no less than 11 separate steps which have to be taken in order to comply with that procedure, and many bodies have to be consulted. The Minister goes first to the highway authority, the county council; the county council then go to the district and parish councils for their consent; the parish council has to give public notice if it wishes to consent; and the resolution to consent must be confirmed not less than two months later at a subsequent meeting of the council. So the thing goes on, month after month, and finally, when all the necessary consents have been obtained, and when the necessary notices have been published, the matter has to go before a jury of quarter sessions. That jury has to answer two questions First, whether the new way—if there is a new way, which there has to be, instead of the old highway—will be nearer or more commodious to the public, and whether the highway proposed to be stopped up is unnecessary. The second question the jury has to decide is whether any particular complainant against the order is aggrieved by it. If either of those questions is decided against the Minister the whole thing lapses, and all that work over all those months comes to naught.

Those are the two alternative procedures which are open, and we hope the Committee will think that we should adopt the specific procedure devised by Parliament in 1945.

I would differ from the hon. Member. I may be wrong, but I thought I said "Parliament." I was saying that Parliament devised this in 1945. If by the word "we" the hon. Member implies this Government, I would point out that the Requisitioned Land and War Works Act was passed before this Government took office; it was passed, I think I am right in saying, in June, 1945, so it could not be this Government. I certainly intended to refer to Parliament, if I did not do so.

The whole question is: Are we wrong in saying we will resort to that procedure? It might very well be said that we are wrong now in saying we should resort to that procedure, but it affords the best possible protection, and there is the War Works Commission. To a large extent the Minister is bound by their report. If he proposes to override it he must come to the House of Commons for their approval. Is not that an effective procedure, providing sufficient safeguard? I hope the Committee will agree with me that it is. For the reasons which I have advanced I should hope to have made out a case, (a) for the extension, in point of time, of the powers, and (b) on the assumption that there is a case for the extension in point of time, that adopting the procedure provided specifically by Parliament in the 1945 Act is sufficient.

I cannot help thinking that the Committee have not been wholly convinced by the arguments put forward by the learned Solicitor-General. I listened with great interest to the case made by my hon. Friend the Member for Thirsk and Mahon (Mr. Turton), and I thought he made out a very good one. The Solicitor-General pointed out that there would be certain difficulties were this Subsection left out, but he did not go to the root of the matter as far as we on this side of the Committee are concerned. My hon. Friend pointed out that when the Home Secretary was speaking on these matters at an earlier date he made it quite clear that we were no longer to have footpaths stopped up without the normal procedure being followed. The Solicitor-General has tried to convince the Committee that for yet another year or two we ought to allow the Government to have these powers.

I do not know whether the Committee feel that the right to insist on the matter being brought to a discussion in this House is a very effective method of dealing with the question of stopping up highways or footpaths. What would happen? There would be a Prayer late at night, when everybody was tired, and very few hon. Members would take much interest in the Prayer because it would be in respect of the stopping up of a footpath in a remote part of the country. It might be a matter of interest for those living in that remote part of the country, but it would not be a matter with which hon. Members would wish to concern themselves. What would happen would be that, almost without exception, the Government would have very little difficulty in getting their proposal adopted.

8.30 p.m.

The old-fashioned procedure was a cumbrous one, as the Solicitor-General has said, but I suggest that that is a very good thing. We want to have a cumbrous system to prevent footpaths being easily stopped up. It is all to the good if parish councils, county councils and district councils have to be consulted, because we do not want this sort of thing to be done in a hurry. I do not think that the Government will find themselves in any practical difficulty if they have to do what other people have to do, and that is follow the ordinary rules and laws, which are laid down for the general convenience of the country, whereby the Government

must convince the various authorities concerned that it is a very desirable thing that a footpath should be stopped up. The Solicitor-General said that it was a matter of logic. He said that if we accepted Part II, we must accept this Subsection as a logical consequence. But logic is not everything, and I suggest that this is an occasion when we should take the commonsense view, rather than the strictly logical view. I hope, therefore, that my hon. Friend will see fit to press his Amendment to a Division, in which case I shall be glad to support him.

Can we be told what has changed the mind of the Government since the time when the Supplies and Services (Transitional Powers) Act was being considered? What has caused them to alter their decision? The Committee will recollect that the powers to acquire requisitioned land for economic purposes extended up to 1952 in 1945. It was then the considered decision of the Government, in regard to the stopping-up of highways, that they would use the proper legal procedure, cumbrous though it may be, and even if it required amendment, because it was fairer. There was a solemn pledge given by the Home Secretary that the Government would not in future use summary powers to stop up highways by Ministerial edict, but would resort to quarter sessions procedure. Since then, the only thing that has happened has been that the Hobhouse Committee have reported, approving the action taken by the Home Secretary. I agree that I did not read the whole of the Committee's Report,

Division No. 59.]


[8.35 p.m.

Adams, Richard (Balham)Bowles, F. G. (Nuneaton)Cook, T. F.
Adams, W. T. (Hammersmith, South)Braddock, Mrs. E. M. (L'pl, Exch'ge)Cooper, Wing-Comdr. G.
Alexander, Rt. Hon. A. V.Braddock, T. (Mitcham)Corlett, Dr. J
Alpass, J. H.Bramall, E. A.Cove, W. G.
Anderson, A. (Motherwell)Brooks, T. J. (Rothwell)Daggar, G.
Awbery, S. S.Brown, George (Belper)Daines, P.
Ayles, W. H.Brown, T. J. (Ince)Davies, Edward (Burslem)
Ayrton Gould, Mrs. B.Buchanan, Rt. Hon. G.Davies, Ernest (Enfield)
Bacon, Miss A.Burden, T. W.Davies, Haydn (St. Pancras, S.W.)
Baird, J.Burke, W. A.Davies, S. O. (Merthyr)
Barnes, Rt. Hon. A. J.Butler, H. W. (Hackney, S.)Deer, G.
Barstow, P. G.Callaghan, JamesDiamond, J.
Barton, CCastle, Mrs. B. A.Dobbie, W.
Battley, J. R.Champion, A. J.Dodds, N. N.
Bechervaise, A. E.Chetwynd, G. RDonovan, T.
Belcher, J. W.Cluse, W. S.Driberg, T. E. N.
Bellenger, Rt. Hon. F. J.Cobb, F. A.Dumpleton, C. W.
Benson, G.Cocks, F. S.Durbin, E. F. M.
Berry, HColdrick, WEde, Rt. Hon. J. C.
Bing, G. H. C.Collick, P.Edwards, Rt. Hon. Sir C. (Bedwellty)
Binns, J.Collindridge, F.Edwards, W. J (Whitechapel)
Blyton, W. R.Collins, V. J.Evans, A. (Islington, W.)
Boardman, H.Colman, Miss G. M.Evans, E. (Lowestoft)
Bottomley, A. G.Comyns, Dr. L.Evans, John (Ogmore)

but if I had done so we should have been sitting here until the early hours of tomorrow morning. Therefore, I confined myself to the two relevant passages. I should certainly support any Amendment to revise the procedure at quarter sessions, as proposed by the Hobhouse Committee.

The Solicitor-General has not attempted to answer the point which was put, namely, what has changed the mind of the Government since 19th October, 1945, when the Home Secretary gave a specific pledge that he would no longer use Ministerial edicts? Today, the Solicitor-General says that it is much better to do so, because, after all, eventually the matter can be decided by the House of Commons. As my right hon. Friend the Member for the City of London (Mr. Assheton) has said, it is ridiculous to expect the House of Commons, sitting in the late hours of the night, to decide whether the right of way across Little Puddlebury Common should be closed or not. The right place to decide that is at the quarter sessions of the county. We do not want to waste the time of the House of Commons on small matters which should be decided by the appropriate court in the appropriate county. We do not want to treat all these matters as matters of party difference, but we do not like to find the Government breaking their pledge.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes, 253; Noes, 97.

Ewart, R.Manning, Mrs. L. (Epping)Skeffington, A. M.
Fairhurst, F.Marshall, F. (Brightside)Smith, C. (Colchester)
Fernyhough, E.Mathers, Rt. Hon. G.Smith, Ellis (Stoke)
Fraser, T. (Hamilton)Medland, H. M.Smith, H. N. (Nottingham, S.)
Gaitskell, Rt. Hon. H. T. N.Mellish, R. J.Smith, S. H. (Hull, S.W.)
Gibbins, J.Middleton, Mrs. L.Solley, L. J.
Gibson, C. W.Mikardo, IanSorensen, R. W.
Gilzean, A.Mitchison, G. R.Soskice, Maj. Sir F
Glanville, J. E. (Consett)Monslow, W.Sparks, J A
Grenfell, D. R.Moody, A. S.Stamford, W
Grey, C. F.Morley, R.Steele, T.
Grierson, E.Morris, Lt.-Col. H. (Sheffield, C.)Stubbs, A. E.
Griffiths, D. (Rother Valley)Morris, P. (Swansea, W.)Symonds, A. L.
Griffiths, Rt. Hon. J (Llanelly)Morrison, Rt. Hon. H. (Lewisham. E.)Taylor, H. B. (Mansfield)
Gunter, R. J.Mort, D. L.Taylor, R. J. (Morpeth)
Guy, W. H.Moyle, A.Taylor, Dr. S. (Barnet)
Hall, Rt. Hon. GlenvilMurray, J. D.Thomas, D. E. (Aberdare)
Hamilton, Lieut-Col. R.Nally, W.Thomas, I. O. (Wrekin)
Hardy, E. A.Naylor, T. E.Thomas, John R. (Dover)
Henderson, Rt. Hn. A. (Kingswinford)Neal, H. (Claycross)Thomas, George (Cardiff)
Henderson, Joseph (Ardwick)Nichol, Mrs. M. E. (Bradford, N.)Thorneycroft, Harry (Clayton)
Hewitson, Capt. M.Noel-Baker, Capt. F. E. (Brentford)Thurtle, Ernest
Hobson, C. R.Oldfield, W. H.Tiffany, S.
Holmes, H. E. (Hemsworth)Oliver, G. H.Timmons, J.
Horabin, T. L.Orbach, M.Titterington, M. F.
Hudson, J. H. (Ealing, W.)Paget, R. T.Tolley, L.
Hughes, Emrys (S Ayr)Paling, Rt. Hon. Wilfred (Wentworth)Tomlinson, Rt. Hon. G.
Hughes, Hector (Aberdeen, N.)Paling, Will T. (Dewsbury)Ungoed-Thomas, L
Hughes, H. D. (W'lverh'pton, W.)Palmer, A. M. F.Usborne, Henry
Hynd, H. (Hackney, C.)Pargiter, G. A.Vernon, Maj. W. F.
Irving, W. J. (Tottenham, N.)Parkin, B. T.Viant, S. P.
Isaacs, Rt. Hon. G. A.Paton, Mrs. F. (Rushcliffe)Walker, G. H.
Janner, B.Paton, J. (Norwich)Wallace, G. D. (Chislehurst)
Jeger, Dr. S. W. (St. Pancras, S.E.)Pearson, A.Wallace, H. W. (Walthamstow, E.)
Jones, D. T. (Hartlepoos)Perrins, W.Warbey, W. N.
Jones, Elwyn (Plaistow)Poole, Cecil (Lichfield)Watkins, T. E.
Jones, P. Asterley (Hitchin)Popplewell, E.Watson, W. M.
Keenan, W.Porter, E. (Warrington)Webb, M. (Bradford, C.)
Key, C. W.Porter, G. (Leeds)Wells, W. T. (Walsall)
Kinghorn, Sqn.-Ldr. EPritt, D. N.West, D. G.
Kinley, J.Pursey, Cmdr. H.Westwood, Rt. Hon. J.
Lang, G.Randall, H. E.Whealley, J. T. (Edinburgh, E.)
Lawson, Rt. Hon. J. J.Ranger, JWhite, C. F. (Derbyshire, W.)
Lee, Miss J. (Cannock)Rankin, J.White, H. (Derbyshire, N.E.)
Leslie, J. R.Rees-Williams, D. R.Whiteley, Rt. Hon. W.
Levy, B. W.Reid, T. (Swindon)Wigg, George
Lewis, A. W. J. (Upton)Richards, R.Willey, F. T. (Sunderland)
Lewis, T (Southampton)Robens, A.Willey, O. G. (Cleveland)
Lindgren, G. S.Robertson, J. J. (Berwick)Williams, D. J. (Neath)
Lipton, Lt.-Col. M.Rogers, G. H. R.Williams, W. R. (Heston)
Lyne, A. W.Ross, William (Kilmarnock)Willis, E.
McEntee, V. La TRoyle, C.Wise, Major F. J.
McGhee, H. G.Sargood, R.Woods, G. S.
Mack, J. D.Scollan, T.Wyatt, W.
McKay, J. (Wallsend)Scott-Elliot, W.Yates, V. F.
Mackay, R. W. G. (Hull, N.W.)Segal, Dr. S.Younger, Hon Kenneth
McKinlay, A. S.Sharp, GranvilleZilliaous, K.
Maclean, N. (Govan)Shawcross, Rt. Hn. Sir H. (St. Helens)
McLeavy, F.Shurmer, P.


MacMillan, M. K. (Western Isles)Silkin, Rt. Hon. L.Mr. Snow and
Macpherson, T. (Romford)Silverman, J. (Erdington)Mr. Wilkins.
Mallalieu, J. P. W.Simmons, C. J.


Agnew, Cmdr. P. G.Crosthwaite-Eyre, Col. O. E.Hulbert, Wing-Cdr. N. J.
Aitken, Hon. MaxDigby, S. W.Hurd, A.
Amory, D. HeathcoatDodds-Parker, A. D.Hutchison, Lt.-Cm. Clark (E'b'rgh W.)
Assheton, Rt. Hon. RDower, E. L. G. (Caithness)Jeffreys, General Sir G
Baldwin, A. E.Drayson, G. B.Jennings, R.
Beamish, Maj. T. V. H.Drewe, C.Joynson-Hicks, Hon. L. W.
Bennett, Sir P.Dugdale, Maj. Sir T. (Richmond)Keeling, E. H.
Birch, NigelGalbraith, Cmdr. T. D.Lambert, Hon. G.
Boles, Lt.-Col. D. C. (Wells)George, Lady M. Lloyd (Anglesey)Legge-Bourke, Maj. E. A. H.
Bowen, R.Glyn, Sir R.Lipson, D. L.
Boyd-Carpenter, J. A.Gomme-Duncan, Col. A.Lucas-Tooth, Sir H.
Brown, W. J. (Rugby)Grimston, R. V.McCallum, Maj. D.
Buchan-Hepburn, P. G. T.Hannon, Sir P. (Moseley)McCorquodale, Rt. Hon. M. S.
Carson, EHarvey, Air-Comdre A. V.Macdonald, Sir P. (I. of Wight)
Challen, C.Haughton, S. G.Maclay, Hon. J. S.
Clarke, Col. R. S.Headlam, Lieut.-Col. Rt. Hon Sir CMacpherson, N. (Dumfries)
Clifton-Brown, Lt.-Col. G.Henderson, John (Cathcart)Maitland, Comdr. J. W.
Conant, Maj. R. J. E.Hogg, Hon. Q.Manningham-Buller, R. E.
Corbett, Lieut.-Col. U. (Ludlow)Hope, Lord J.Marples, A. E.

Marshall, D. (Bodmin)Roberts, W. (Cumberland, N.)Turton, R. H.
Morrison, Rt. Hon. W. S. (Cirencester)Robinson, RolandVane, W. M. F.
Mott-Radclyffe, C. E.Ropner, Col. L.Wakefield, Sir W W
Neven-Spence, Sir B.Ross, Sir R. D. (Londonderry)Walker-Smith, D.
Nicholson, G.Sanderson, Sir F.Watt, Sir G. S. Harvie
Nield, B. (Chester)Scott, Lord W.Wheatley, Col. M. J. (Dorset. E.)
Odey, G. W.Smiles, Lt.-Col. Sir W.White, Sir D. (Fareham)
Orr-Ewing, I. L.Snadden, W. M.Williams, C. (Torquay)
Peto, Brig. C. H. M.Stoddart-Scott, Col. M.Willoughby de Eresby, Lord
Poole, O. B. S. (Oswestry)Studholme, H. G.York, C.
Prior-Palmer. Brig. O.Sutcliffe, H.
Ramsay, Maj. S.Thomas, J. P. L. (Hereford)


Rayner, Brig. R.Thorneycroft, G. E. P. (Monmouth)Lieut.-Colonel Thorp and
Roberts, Emrys (Merioneth)Thornton-Kemsley, C NBrigadier Mackeson.
Roberts, Peter (Ecclesall)Touche, G. C.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

I want to put one or two posers either to the Parliamentary Secretary to the Ministry of Transport or to the Solicitor-General. The first is with regard to roads. There is certain land in Breconshire held under the Defence Regulations. The roads are now open. It is proposed by the War Office permanently to acquire those roads. If the roads are permanently acquired, will they remain open? In view of what the learned Solicitor-General has said, will it be possible for them to say, in reply to representations made to have the roads kept open, "Oh, we could have closed those roads, but we did not do so. We intend to do so now in spite of anything that may be said." If they do that, will the normal procedure be gone through for the closing of the roads?

In the case of footpaths, during the war certain of my constituents agreed to footpaths being closed because they were on military ground taken over under the Defence Regulations. It is now proposed in certain districts which I have in mind permanently to acquire that particular land. The footpaths are still closed. Will the normal procedure about notices and representations be carried into effect? I want an assurance from the Parliamentary Secretary to the Ministry of Transport that in the event of any footpaths or roads being closed, all the local authorities interested will be advised that they are to be closed, and any representations made against their closure will be given due consideration.

8.45 p.m.

I find this Clause difficult to understand. I am not at all sure that I understand it, but if I do, I do not like it. I am not at all sure, if my understanding of it is correct, that we are not continuing something like a constitutional revolution in the apparently modest and harmless language of this Clause. As I understand it, the Clause will make legal, at some time in the future, something which would have been legal if done under an order of the past, if we had thought about using the order of the past at the time, but we did not. This is an extraordinary and astonishing departure from the ordinary processes of Parliamentary legislation. Up to now, with one qualification to which I will refer later, the position of the subject under British law has been that he was governed by the law of the day as it stood, and he suffered the disability of the law or took the advantages of the law, as the case may be.

It has often happened that decisions given in the courts under the law as it stood at the moment were unpalatable to the Government of the day. In my lifetime, we have seen growing up what I regard as the first of the serious departures from equity, the practice of carrying through retrospective legislation to undo decisions given in the courts on the basis of existing law which was unpalatable to the Government of the day. That, I think, is wholly bad. Where do we get under this Clause?

Under this Clause the position of the subject will be governed not by the law as it stands or as amended by a new Act of Parliament, but by what a Minister might have done in the past if he had thought about it at the time. It seems to me to be an astonishing position in which the subject is placed. If I am wrong about this I can be corrected because I should hate to think that this would be the outcome of the Clause as it stands, but to me the meaning seems to be clear. It is not easy for the untutored, rude, rough mind to comprehend fully the intricacies of this para graph, but my untutored mind tells me that this is what the Clause is. If my argument is right then concealed in this harmless Clause are the seeds of revolution, and as a believer in constitutional Government I must resist the rush of Bolshevism on the part of the Front Bench opposite.

As regards the questions put to me by my hon. Friend for Brecon and Radnor (Mr. Watkins) I am afraid my answer must be a negative one because I do not know the precise details of the places he described in his speech. Clause 15 of the Bill does enable paths, which were temporarily stopped up in war time, to be permanently stopped up. It may be—and I do not know without fuller information—that this particular Section would be applicable, but that is the only answer I can give on present information to the question that I was asked.

I should like to say a few words about the observations addressed to the Committee by the hon. Member for Rugby (Mr. W. J. Brown). His understanding on the effect of the Clause was correct, but if one looks at the practical application of the Clause he will agree it is not of the sinister nature that he apprehends. The situation with which we are dealing is that in the early part of the war, in the rush and hurry of events of those days, in many cases an order could have been made with little formality by the appropriate Minister or his deputed representative which would have resulted in the path being stopped up. Sometimes that was overlooked. It might have been overlooked by a military commander taking possession of a particular area of ground for military purposes and a footpath, which he had not even noticed, ran across it.

It would not have been reasonable to expect every officer in those days with the grave cares which burdened all officers in authority in, say, 1940, always to remember the exact provisions of the Defence Regulations. In consequence there were various occasions when it was overlooked and an order should have been made temporarily to stop up a footpath which ran across a piece of ground. Perhaps on that ground Government works were built or it may have been the case that a factory was put on it, and yet nevertheless under the strict law there is a footpath running across the area on which the factory stands, because no formal order was made owing to pure inadvertence. The question of principle which he raised, and which in other circumstances might be serious, in this connection really does not amount to anything really very much. This was a pure case of oversight in the case of footpaths in the rush and hurry of events of those days.

What are we to do? Are we to allow an illegality to stay or are we to ask this Committee to say that if an order could have been made—and it really was the lack of a mere formality, which has brought about the present position—cannot we say that we give the right to treat the matter as it would have been if it had been treated then with due formality? It does not go any further than that and I hope that the hon. Gentleman will agree that no constitutional question is involved.

I understand that in the arduous conditions of war all kinds of informalities were permitted to overburdened people. The last thing I want to do is to make a song about it, but in the stress of the same events very many poor citizens overlooked and failed to exercise rights which they possessed. For example, there were many matters in which claims had to be in by a certain date. There were all sorts of circumstances in which a man might fail to exercise his rights under the law, but that failure has not excused him, and although, as a result of that failure, he has suffered monetary loss or injury, no kind Government has come along and said that it will pass an Act of Parliament to revise the rights of those who were overburdened during the war and failed to exercise the rights they possessed. That is what the Government are now asking us to—

It is exactly the opposite. My hon. and learned Friend overlooked this point, although it was very much in his mind. One of the things this Clause does, in addition to all that he stated, is to give those who feel aggrieved because a footpath has been stopped up the right to be heard. That is a very real right, and unless we pass this Clause that right will not be available. We are therefore doing exactly what the hon. Gentleman wants us to do. Such people will be able to put in a claim for the restoration of the old footpath, if that is possible, and if a Government factory is now there and that is not possible, for some alternative route.

In other words, we can only apply for the restoration of footpaths in the full knowledge that the application is foredoomed to failure before we start because a factory is stuck in the middle of the path?

I am deeply obliged for the advice of the hon. and learned Member for Northampton (Mr. Paget). He speaks with great weight and authority on anything concerning the law. I submit that the Government are asking us for a post facto excuse for failure to exercise given rights at a given time. I do not know that I am disposed to give them that post facto excuse. I take what the Solicitor-General says as representing the situation substantially, but I trust that when some other Member of Parliament raises the failure of some humble citizen to exercise his rights within a given time and represents that the citizen will be damnified as a result, we shall not hereafter find the Government sheltering behind mere technicalities but willing to treat the citizen as we are prepared to allow the Solicitor-General to treat these officers, as human beings.

I did not quite follow the arguments of the Solicitor-General or the rather disarming intervention of the Financial Secretary in regard to Subsection (1). Why cannot they go to quarter sessions instead of using this hammer-like method of Section 15 of the 1945 Act? The matter could quite properly be decided at quarter sessions and a substitute could be given to parishioners who had lost a right of way. The proper way to deal with the matter would be to go to a local jury at quarter sessions and get an order.

Question, "That the Clause, as amended, stand part of the Bill" put, and agreed to.

Clause 4 ordered to stand part of the Bill.