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New Clause—(Liability For Repair Of Public Paths)

Volume 467: debated on Tuesday 19 July 1949

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

(1) Subject to the following provisions of this Part of this Act, the rule of law whereby a highway is repairable by the inhabitants at large shall apply to all public paths, whether coming into existence before or after the commencement of this Act, notwithstanding anything contained in any enactment passed or made before the commencement of this Act; and accordingly the enactments relating to highways so repairable shall have effect in relation to all such public paths.

(2) Without prejudice to the generality of the last foregoing subsection,—

  • (a) no order made under section twenty-one of the Highway Act, 1864, or section twenty-four of the Highways and Locomotives (Amendment) Act, 1878, (which sections provide for the making of orders for discontinuing the maintenance of unnecessary highways) shall have effect after the commencement of this Act as respects any public path; and
  • (b) after the commencement of this Act no proceedings shall be instituted under either of the said sections for an order relating to a public path.
  • (3) Where apart from this section any person would be under an obligation to repair a public path, whether under any enactment, or by reason of tenure, enclosure, prescription or otherwise,—

  • (a) the operation of subsection (1) of this section shall not release him from the obligation, but
  • (b) if in the performance of their duty under the said subsection (1) the highway authority repair the public path, they may recover from the said person the necessary expenses of so doing:
  • Provided that the right of recovery conferred by paragraph ( b) of this subsection shall not be exercisable unless, before repairing the path, the highway authority have given notice to the said person that the path is in need of repair, specifying a reasonable time within which he may repair the path, and the said person has failed to repair the path within that time.—[ Mr. King.]

    Brought up, and read the First time.

    I beg to move, "That the Clause be read a Second time."

    I am very conscious that this is apparently a lengthy and formidable Clause, and the Committee may therefore expect me to introduce it at some length. In fact, I do not think it is so formidable as it appears. Those hon. Members who have followed the Bill through in Committee, and are familiar with the old Clauses 47 and 48 (1), will realise that this is not very much more than an improved drafting of those two Clauses. The first five or six lines will please the hon. Member for Twickenham (Mr. Keeling) and the hon. Member for The High Peak (Mr. Molson) and one or two other hon. Members, who during the Committee stage, urged that further provision should be made on the question of the repairability of footpaths; particularly footpaths where there was presumed dedication. I think that the first six lines bring out the point well, and make clear that we have now made provision, as far as anyone would reasonably wish, that all paths are repairable by the inhabitants at large. That is the most important effect of the Clause now before the Committee.

    Although this Clause is somewhat like the old Clause 47, I never thought that the old Clause was very clear or satisfactory. I think that everyone is in favour of the repair of footpaths being placed upon the inhabitants at large—because they use them and it is only right that they should repair them—without all the obscurity which at present surrounds that liability. It does appear however that we shall have a double liability; a liability on the inhabitants at large and another liability on the person liable under an Act or under an Enclosure Award or ratione tenurœ.

    I personally intensely dislike subsection (3). It might be said that we do not wish to relieve someone of an existing liability and that we ought to have this Clause. But if we once decide to make public footpaths repairable by the inhabitants at large we must release the other person from the liability, otherwise we shall have a constant war at law between the highway authority and the person whom they claim is at present liable. That is my broad objection to the way in which this Clause is drafted.

    The Parliamentary Secretary may say it was also in Clause 42. Many people did not like Clause 42. In my view this new draft is worse than Clause 42 because it does not clarify the position in this respect as did Clause 42. Subsection (3, b) of the proposed new Clause states:
    "if in the performance of their duty under the said subsection (1) the highway authority repair the public path, they may recover from the said person the necessary expenses of so doing."
    The "said person" is the person they deem to be liable for the repair of the footpath. That is very unfair on that person because it takes no regard to what is the extent of his present liability. I am sure that the Parliamentary Secretary and his legal advisers will well know that there is no more complex part of the law of England than this question of highway law and the law regarding the repair of footpaths. I am sorry that there are no legal advisers present at this time to assist us.

    I think I am right in saying, and with his legal knowledge the Parliamentary Secretary will correct me if I am wrong, that the present law is that the standard of repair of footpaths shall be the standard existing at the time of dedication. Therefore, if the dedication was in the old days when these footpaths were tracks across the country, we cannot ask the person liable for repair to make some horrid asphalt path in their place. The highway authority may well have to repair that path on quite a different standard, but as this Clause is drafted they could put the bill on the person liable for the whole extent of that cost. I hope that the Parliamentary Secretary will try to meet us on this point.

    I am sure that every hon. Member will have had experience of many examples of long disputes in villages on this question of the liability of footpaths. Since I have represented my constituency I have had many such experiences with villages. I should be pleased if the whole of the correspondence could be removed from me, and that the highway authority could take it over. It is unfair to place on people of small means this very expensive liability which is imposed on them by the drafting of this Clause, especially by the words:
    "… the necessary expense of so doing."

    I can only make it clear that no additional liability is placed on anyone by this Clause.

    I am sorry there is no Law Officer of the Crown present this afternoon. I should have thought that if we could not have had present the English Law Officer—in view of certain matters happening today—one of the Scottish Law Officers could have helped us. The Clause states:

    "… they may recover from the said person the necessary expenses of so doing."
    I cannot see how the Parliamentary Secretary can glibly say that it does not give them the power to recover more than the existing liability. If he inserts wording that it shall be subject to that proviso I think it will be all right, but I hope he will get some legal declaration on this matter.

    I wish to ask one question about the repair of stiles, and so on, which run across footpaths. After reading the OFFICIAL REPORT of the Standing Committee, I am not clear where the liability lies. I gather that if in the past the repair of the stiles has been the responsibility of the occupier or owner of the land, that liability remains. In circumstances where the authorities have to do the repair of stiles and gates, I wish to ask what is the position where a footpath leads from one farm to another. Under the regulations governing T.T. herds, it is necessary for a farmer to have a double fence between his land and that of his neighbour. If that is to be effective, there must be a double stile. If the existing stile is repairable by the highway authority, is it the liability of the authority to put up the double stile which is necessary if the farmer is to comply with the regulations? If the farmer is responsible for repairing the stile, and he puts up a double stile, will the inhabitants be able to remove the second stile on the ground that it is an obstruction?

    I wish to put a question which presents a little difficulty and which requires consideration. There may be a public right of passage on foot without a public right for the passage of vehicles. For instance, the owner of land on which there is a road leading to a mill may want to use that road for vehicles, and he may have to keep it in repair himself without being under any legal obligation to do so. In addition to that use by him for his vehicles, there may be a public right of passage on foot. In that sense, it is a public highway. This Clause puts the duty of repairing that public highway on the local authority. Is the local authority to repair that route up to the standards of fitness for foot passengers, or is it to accept the obligation of making that road adequate for the carriage of vehicles? That is a position which is bound to arise in a number of cases where there is a public right of passage on foot, but no greater public right than that.

    My second question is similar to that put by my hon. Friend the Member for Thirsk and Malton (Mr. Turton). Cases may arise where there is an obligation on someone else to repair a public path, which is only an obligation to a limited extent—an obligation which is shared jointly by many occupiers under the Enclosure Acts. As I see the position, if the local authority acts under subsection (3), it could recover the total cost of repairing that highway from any one of the adjoining occupiers who under an Enclosure Act might be liable to contribute in some degree to the expense of the repair. It seems to me to be wrong that by virtue of this Clause the liability of someone else should be increased. I hope that the hon. Gentleman will consider that matter and try to meet the point by a drafting Amendment at a later stage.

    7.15 p.m.

    My hon. Friend the Member for Leominster (Mr. Baldwin) mentioned a footpath running across two farms on land which was fenced because of the presence of a T.T. herd. The problem he mentioned has already arisen in my constituency, and I should think that it has arisen elsewhere. It arose where there was a path on which there was a gate which it was necessary to maintain. As far as I know, it has never been held that the local authority was responsible for complying with any sort of regulations affecting T.T. herds. That may be right or wrong. It is the occupier who is responsible for complying with those regulations and, surely, it is the duty of the occupier to maintain an appropriate fence and the gates which may be part of it.

    I should like to know more about the position in which a highway is repairable by the inhabitants at large—in other words, by the local authority. I believe that the Parliamentary Secretary has already said that that has always been the law. Local authorities have always been liable to maintain any highway in their area. However, the question of what sort of maintenance they think is appropriate and necessary is a very different matter. I hope that under this Bill there will be no question of bringing pressure to bear on local authorities to metal long footpaths or rights of way leading across country which are very little used by the local people, for the benefit of possible visitors from London and elsewhere. Will any pressure be put on the local authority to maintain these highways at a much higher standard than the present one? I hope that we shall have an assurance from the Parliamentary Secretary that this Clause will not be used to interfere with the discretion of highway authorities in this matter.

    This has been an interesting Debate and I appreciate the various points made by hon. Members. First, I will deal with the major point and, secondly, I will refer to the number of small legal subsidiary questions which, frankly, are difficult to answer straight away, and some of which I cannot attempt to answer. The major point was raised by the hon. Member for Thirsk and Malton (Mr. Turton). There is a problem here, and it is not easy to solve it. We are left with laws of past centuries which provide that it is the duty of private persons to repair certain roads. To many of us that seems to be out of date and generally undesirable. Most of us would agree that the public interest would be better served if that kind of private obligation were removed. At the same time, we must face the fact that it cannot be any purpose of this Bill to remove from a landlord or the owner of a path any obligation—usually a financial obligation—attached to it.

    I hope that the hon. Gentleman has given consideration to the recommendation on this very point in the Report of the Special Committee on Footpaths and Access to the Countryside. That Report said:

    "The surviving liabilities of individuals for the repair and maintenance of rights of way … are of little significance, and difficult to establish. The trouble of ascertaining the degree of liability and of supervising the work of maintenance is frequently more costly in time and money than prompt repair by the authority. We recommend, therefore, that they should no longer be enforceable."
    It was understood that this Bill was to give effect to that recommendation.

    I was well aware of that. We have studied the Report. It does not deal with the financial aspect.

    The solution we have adopted is that in future the highway authority should be responsible for maintaining the path or road. But if the highway authority can discover, and can prove, that some other private person was, and still is, responsible for the upkeep, then they can reclaim from that person the amount properly spent upon the road. As the hon. Member for The High Peak (Mr. Molson) pointed out, many of these obligations are so obtuse and obscure that it is questionable whether a local authority would find it worth while to try to claim at all. I have no doubt that, in some cases, they would drop to the ground, but, where a claim can be submitted and proved, that obligation is laid upon the highway authority to make that claim and recover, in the interests of the community as a whole, what they can recover.

    That is the position under the new Clause, and I think it is reasonable, though I am bound to admit that in the Ministry we have had the gravest doubts about how best this can be arranged. I am quite sure that my right hon. Friend, who is not here at the moment, will read with great care the speeches made on this point, and it is quite possible, although this is not a promise, that if we can find a better way of dealing with the problem we shall be glad to do so. Beyond that, I do not think I ought to go.

    There were a number of subsidiary points put to me, and may I deal first with that about T.T. herds? In so far as the hon. and gallant Member for Petersfield (Sir G. Jeffreys) was thinking of the creation of new paths—

    I think the main point is that it would not be policy to create new paths at all.

    I never suggested, or thought of suggesting, the creation of new paths, but there are to my certain knowledge existing paths and highways which run between farms where there are T.T. herds and where difficulties do occur.

    I do not want the Committee to derive any kind of fear that we are going to interfere with anything which may affect T.T. herds. A highway authority assumes responsibility for maintaining the length of the way. Sometimes, it is not easy to discover whether the stiles mentioned are across the way or alongside it. In so far as they were across the way, it would be the duty of the highway authority to maintain the path, but they would not assume any responsibility for anything like gates, stiles or anything else which was not necessary to transit by passengers. Nor do we think that they are bound to do anything more in the way of maintaining the standard of the surface than the standard of surface at the time of dedication.

    There is one point which the Parliamentary Secretary has not cleared up. Supposing it is the liability of the farmer to put up a double stile, have the public the right of pulling it up and throwing it away as an obstruction?

    Has the hon. Gentleman in mind the stile going across the footpath or alongside the footpath? If the stile is already there as a right, it remains there; there is nothing in the Clause about anyone removing it, and anyone who tried to remove it would be a trespasser and liable to prosecution.

    Is the hon. Gentleman going to reply to the speeches of my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) and myself?

    I think we must ask the hon. Gentleman to go further and deal with this serious point. In subsection (3) we may well have a heavier burden cast upon a person who is under an obligation to repair a public path than now exists. If the hon. Gentleman will say that it is his desire not to increase that burden by this new Clause, and that, if necessary, he will import words into it to make that quite clear, it will satisfy my hon. Friend and myself on that point. The hon. Gentleman said nothing about that, nor did he say anything at all in answer to the point which I myself raised.

    I am sorry if I did not grasp the hon. and learned Gentleman's first point. I think the result at which the hon. Member for Thirsk and Malton has arrived was reached by omitting to read line 15, which reads:

    "(3) Where apart from this Section any person would be under an obligation to repair a public path"—
    and, later, it goes on—
    "shall not release him from the obligation."
    With the removal of that obligation, I admit that nothing further could be recovered from him than the expense which he would have incurred if he had done what he was in fact in law bound to do. That is the interpretation which I place upon the new Clause, but we are sometimes wrong, and it may be that I am wrong now. If I am wrong, I shall certainly take the point and be glad to look at it again, but that is our intention.

    I do not think it is relevant to whom I refer it, so long as we get justice.

    I am afraid I am not clear or satisfied with the explanation of the Parliamentary Secretary regarding the liabilities of an owner who puts up a double fence across a footpath at the edge of his farm in order to comply with the regulations regarding an attested herd. Presumably, there was always one gate there, and that was all right, but if the owner puts up a second one, he may render himself liable for causing an obstruction; the public would have the right of uprooting it or getting rid of it, and he would have no power of getting compensation.

    I can see the same thing happening in other cases of farms in open arable country, where a farmer, in full accordance with good husbandry, was going to put a ley down to grass, when it would be necessary to have a fence which did not exist before, as well as another gate. Would that farmer be liable to be accused of placing an obstruction across the path? It seems to me that the two cases are very similar, though they are both cases not likely to arise today and have not arisen very often in the past, because there were no T.T. herds and the system of ley farming was not involved as it is today. I think this important point should be cleared up so that farmers may know where they stand in this matter.

    Question put, and agreed to.

    Clause read a Second time.

    I beg to move, as an Amendment to the proposed new Clause, in subsection (3), to leave out "whether."

    This Amendment, and the following Amendment, in line 16, to leave out
    "or by reason of tenure, enclosure, prescription or otherwise"
    are concerned with the same point. The purpose and intended effect of the two Amendments is that subsection (3) would then read:
    "(3) Where apart from this section any person would be under an obligation to repair a public footpath, under any enactment"—
    the provisions of (a) and (b) would apply, and the liability would rest upon him. I have listened with close attention to the speech of the Parliamentary Secretary, in which he has explained why this new Clause has been moved. It is in partial fulfilment of what I regard as the undertaking given by the Minister during the Second Reading of this Bill, when he said:
    "The Bill provides, for the first time, for a liability for the maintenance of footpaths. This will now rest fairly and squarely on highway authorities."—[OFFICIAL REPORT, 31st March, 1949; Vol. 463, c. 1478.]
    7.30 p.m.

    The House understood from the Minister's statement, and from part of the original Clause in the Bill, that it was the intention of the Government to give effect to the very important recommendations of the Special Committee on Footpaths and Access to the Countryside, presided over by Sir Arthur Hobhouse. The Parliamentary Secretary says that he has given careful attention to Chapter IV. The Committee pointed out, what was already known to lawyers and those concerned with legal administration, that there is no branch of the English law which is more difficult and obscure than the law relating to footpaths and rights of way and the obligation that rests either upon certain individuals or upon local authorities to repair these footpaths and keep up these rights of way.

    The kind of difficulty which arises is largely caused by the Highways Act of 1835, Section 23 of which provides that no road or occupation way dedicated or created after 20th March, 1835, shall be deemed to be repairable by the highway authority unless the individual or body dedicating gave notice to the authority and complied with certain conditions. Naturally, and I have had personal experience of this, when the liability for the upkeep of a footpath depends on whether the dedication had taken place before 20th March, 1835, it is a matter that involves a very great deal of research; it is extremely difficult to bring home a liability of that kind. After dealing with the matter at some length, the Committee pointed out that when highways are created by Statute, it is possible for an obligation to maintain them to be laid upon private individuals who benefit by their creation. They then go on to give three different ways, none of which, they say, is of much practical importance, in which individuals may be held responsible to maintain these rights of ways ratione tenurae, ratione clausurae and ratione documenti.

    They go on to point out—and I will venture to read some of this again, because it is extremely relevant, not only to the Amendment but to the reconsideration which the Parliamentary Secretary has undertaken to give to this Clause, reconsideration without commitment or obligation, as I fully realise—that the present state of the law is unsatisfactory, not only because of the fact that the obligations depend upon what was the state of facts in March, 1835, but because different local authorities interpret their obligations under that Act in different ways. They then go on to say, in effect, that we should take this opportunity to clear away this whole jungle of decided cases and the many problems which are still undecided, and put the financial and legal responsibility fairly and squarely on the shoulders of the local authorities in the way that the Minister thought he was doing when he introduced this Bill on Second Reading, when he certainly said that it was being done.

    I was very much surprised at what I understood to be the interpretation the Parliamentary Secretary put a few moments ago upon paragraph 68 of this Report. I will read it again.
    "The surviving liabilities of individuals for the repair and maintenance of rights of way … are of little significance, and difficult to establish, The trouble of ascertaining the degree of liability and of supervising the work of maintenance is frequently more costly in time and money than prompt repair by the authority. We recommend, therefore, that they should no longer be enforceable."
    If I understood the Parliamentary Secretary aright, he understood that as meaning that the financial liability should continue as it is at the present time, and that all that the local authority would undertake would be the actual carrying out of the repairs to the footpaths. I am bound to say that I do not think the word "enforceable" can possibly bear that meaning. It does I think mean, in view of the comparatively small expenditure involved, that the whole of this unprofitable learning, dating back to the earliest times, should be swept away and that the highway authorities should fairly and squarely undertake liability for it.

    I now come to the Amendment which I have moved. The Parliamentary Secretary may say that it is not a very logical one, but it is genuinely intended to meet the point which the Minister made during the Committee stage when this matter was under discussion. He said that he had a good deal of sympathy with the recommendations on this point in the Hobhouse Report, but went on to say that he felt a good deal of hesitation in undertaking a liability for the ratepayers which at present rested upon private individuals.

    In the new Clause, the financial obligation is preserved in any case where under any enactment, or by reason of tenure, enclosure prescription, or otherwise, there is any financial liability. When we begin to ascertain whether there is a liability under prescription or otherwise we are apt to get involved in the most difficult points of law, and in even more difficulty in ascertainment of fact, because it has to go back so very far. Therefore, we are moving this Amendment in order to do away with obligations that can only be proved with very great difficulty.

    The reason that we are leaving in "any enactment" is that if there is any private Act of Parliament which, for example, authorises an enclosure, where the obligation is printed and can be pointed to and where no great difficulty or cost is involved in proving that liability, then there we would propose that that liability should continue. It is in order to clarify this position, to do away with all this uncertainty, and to avoid long and costly litigation, often, in the words of the Committee, far more costly than actually getting the job carried out, that I move this Amendment.

    I should like to reply as adequately as I can to the hon. Member for The High Peak (Mr. Molson), but I did to some extent put the case for this Clause before he moved this Amendment, so that there is no need to go through the whole of that argument again. The intention of this Amendment is to abolish any existing liability upon landowners to repair public paths by reason of tenure, enclosure, or prescription—

    Yes. The hon. Member quoted my right hon. Friend's statement that liability for repair rests fairly and squarely upon local authorities, and seemed rather to imply that that would not be properly carried out. But we must distinguish between financial and practical responsibility. The attitude we have adopted is that there should be no question at all of practical responsibility for repair resting on highway authorities. That is a great advance in itself. We are now left solely with the question of finance. I am conscious of what the Hobhouse Report said, and the value it is to us in this sort of argument, but I did not mean to imply, nor do I mean to do so now, that we should necessarily accept what that report has said, although it is, of course, a guide.

    The argument, used partly by the hon. Member opposite and partly by the Hob-house Report, was that it is frequently

    Division No. 215.]

    AYES

    [7.45 p.m.

    Adams, Richard (Balham)Baird, J.Blyton, W. R.
    Albu, A. H.Balfour, A.Boardman, H.
    Allen, A. C. (Bosworth)Barstow, P. G.Bowden, Flg. Offr H. W.
    Allen, Scholefield (Crewe)Barton, C.Braddock, Mrs. E. M. (L'pl. Exch'ge)
    Alpass, J. H.Battley, J. R.Brook, D. (Halifax)
    Anderson, A. (Motherwell)Bechervaise, A. E.Brooks, T. J. (Rothwell)
    Attewell, H. C.Benson, G.Broughton, Dr. A. D. D.
    Austin, H. LewisBerry, H.Brown, T. J. (Ince)
    Awbery, S. S.Beswick, F.Burke, W. A.
    Ayles, W. H.Bing, G. H. C.Butler, H. W. (Hackney, S.)
    Ayrton Gould, Mrs. B.Binns, J.Callaghan, James
    Bacon, Miss A.Blenkinsop, A.Carmichael, James

    costly to collect small sums of money. That is true, and where it is so difficult as not to be worth while I have no doubt that that will not be done. The highway authority will soon get tired of becoming involved in ancient legal disputes, and many of these obligations will cease to have effect. We must, however, bear in mind that there may be cases where there is no difficulty of proof. That being so, I cannot see why it should be argued that we should not take normal steps where proof does not exist. One of the troubles in this matter is that it is very difficult to get sufficient information of the number of cases in which this problem will arise and how many of the powers, which are now in dispute, will apply. I would not claim that we have all the information we would like on that subject, but we are arguing about something which is very small. I put the major theoretical argument earlier, and I must now ask the Committee to reject the Amendment.

    We are by no means satisfied with the hon. Gentleman's reply. It is true that the Clause is better than Clause 47 which was originally in the Bill, and that it will remove some of the difficulties surrounding the repair of public paths; but the words we propose to leave out by the Amendment will lead to great difficulties and research in order that local authorities may try to recover very small sums from persons whom they allege to be under legal liability. We think that that liability should be limited to the clear case of where it is imposed by the Department, and for that reason we propose to divide the Committee on the Amendment.

    Question put, "That 'whether' stand part of the proposed Clause."

    The Committee divided: Ayes, 260; Noes. 97.

    Castle, Mrs. B. A.Isaacs, Rt. Hon. G. A.Reid, T. (Swindon)
    Chetwynd, G. R.Jeger, G. (Winchester)Rhodes, H.
    Cluse, W. S.John, W.Ridealgh, Mrs. M.
    Coldrick, W.Johnston, DouglasRoberts, Goronwy (Caernarvonshire)
    Collindridge, F.Jones, D. T. (Hartlepool)Roberts, W. (Cumberland, N.)
    Collins, V. J.Jones, P. Asterley (Hitchin)Robertson, J. J. (Berwick)
    Colman, Miss G. M.Keenan, W.Robinson, Kenneth (St. Pancras, N.)
    Cooper, G.Kenyon, C.Ross, William (Kilmarnock)
    Corbet, Mrs. F. K. (Camb'well, N. W.)King, E. M.Royle, C.
    Corlett, Dr. J.Kinghorn, Sqn.-Ldr. E.Sargood, R.
    Cove, W. G.Kinley, J.Scollan, T.
    Cullen, Mrs.Kirby, B. V.Segal, Dr. S.
    Daggar, G.Lavers, S.Sharp, Granville
    Daines, P.Lee, F. (Hulme)Shawcross, C. N. (Widnes)
    Davies, Edward (Burslem)Leonard, W.Shurmer, P.
    Davies, Harold (Leek)Lewis, A. W. J. (Upton)Silkin, Rt. Hon. L.
    Davies, Haydn (St. Pancras, S. W.)Lewis, T. (Southampton)Silverman, J. (Erdington)
    Davies, R. J. (Westhoughton)Lindgren, G. S.Simmons, C. J.
    Davies, S. O. (Merthyr)Lipson, D. L.Skeffington, A. M.
    Deer, G.Lipton, Lt.-Col M.Skeffington-Lodge, T. C.
    Delargy, H. J.Longden, F.Skinnard, F. W.
    Diamond, J.Lyne, A. W.Smith, H. N. (Nottingham, S.)
    Dobbie, W.McAdam, W.Smith, S. H. (Hull, S. W.)
    Dodds, N. N.McAllister, G.Snow, J. W.
    Donovan, T.McEntee, V. La T.Soskice, Rt. Hon. Sir Frank
    Driberg, T. E. N.McGhee, H. G.Sparks, J. A.
    Dumpleton, C. W.McKay, J. (Wallsend)Steele, T.
    Ede, Rt. Hon. J. C.McKinlay, A. S.Stewart, Michael (Fulham, E.)
    Edwards, Rt. Hon. Sir C. (Bedwellty)McLeavy, F.Stubbs, A. E.
    Edwards, Rt. Hon. N. (Caerphilly)MacMillan, M. K. (Western Isles)Swingler, S.
    Evans, Albert (Islington, W.)McNeil, Rt. Hon. H.Sylvester, G. O.
    Evans, E. (Lowestoft)MacPherson, Malcolm (Stirling)Symonds, A. L.
    Evans, S. N. (Wednesbury)Macpherson, T. (Romford)Taylor, H. B. (Mansfield)
    Fairhurst, F.Mallalieu, E. L. (Brigg)Taylor, R. J. (Morpeth)
    Fernyhough, E.Mann, Mrs. J.Taylor, Dr. S. (Barnet)
    Fletcher, E. G. M. (Islington, E.)Manning, C. (Camberwell, N.)Thomas, D. E. (Aberdare)
    Follick, M.Manning, Mrs. L. (Epping)Thomas, George (Cardiff)
    Forman, J. C.Mathers, Rt. Hon. GeorgeThomas, I. O. (Wrekin)
    Fraser, T. (Hamilton)Mellish, R. J.Thorneycroft, Harry (Clayton)
    Gallacher, W.Messer, F.Timmons, J.
    Ganley, Mrs. C. S.Middleton, Mrs. L.Titterington, M. F.
    George, Lady M. Lloyd (Anglesey)Mikardo, Ian.Tolley, L.
    Gibbins, J.Mitchison, G. R.Tomlinson, Rt. Hon. G.
    Gibson, C. W.Monslow, W.Turner-Samuels, M.
    Gilzean, A.Moody, A. S.Ungoed-Thomas, L.
    Glanville, J. E. (Consett)Morley, R.Viant, S. P.
    Goodrich, H. E.Morris, Lt.-Col. H. (Sheffield, C.)Walkden, E.
    Gordon-Walker, P. C.Morris, P. (Swansea, W.)Walker, G. H.
    Greenwood, A. W. J. (Heywood)Morrison, Rt. Hon. H. (Lewisham, E.)Wallace, G. D. (Chislehurst)
    Grenfell, D. R.Moyle, A.Wallace, H. W. (Walthamstow, E.)
    Grey, C. F.Nally, W.Warbey, W. N.
    Grierson, E.Neal, H. (Claycross)Watkins, T. E.
    Griffiths, D. (Rother Valley)Noel-Baker, Rt. Hon. P. J. (Derby)Watson, W. M.
    Griffiths, W. D. (Moss Side)Noel-Buxton, LadyWalls, P. L. (Faversham)
    Guest, Dr. L. HadenO'Brien, T.Wells, W. T. (Walsall)
    Guy, W. H.Oliver, G. H.West, D. G.
    Haire, John E. (Wycombe)Paling, Rt. Hon. Wilfred (Wentworth)Wheatley, Rt. Hon. John (Edinb'gh, E.)
    Hamilton, Lieut.-Col. R.Paling, Will T. (Dewsbury)White, H. (Derbyshire, N. E.)
    Hannan, W. (Maryhill)Palmer, A. M. F.Whiteley, Rt. Hon. W.
    Hardy, E. A.Pargiter, G. A.Wigg, George
    Harrison, J.Parker, J.Willey, O. G. (Cleveland)
    Hastings, Dr. SomervilleParkin, B. T.Williams, D. J. (Neath)
    Haworth, J.Paton, Mrs. F. (Rushcliffe)Williams, J. L. (Kelvingrove)
    Henderson, Rt. Hn. A. (Kingswinford)Paton, J. (Norwich)Williams, Ronald (Wigan)
    Herbison, Miss M.Pearson, A.Williams, W. R. (Heston)
    Holman, P.Peart, T. F.Willis, E.
    Holmes, H. E. (Hemsworth)Platts-Mills, J. F. F.Wills, Mrs. E. A.
    Houghton, A. L. N. D.Poole, Cecil (Lichfield)Woodburn, Rt. Hon. A.
    Hoy, J.Popplewell, E.Woods, G. S.
    Hubbard, T.Porter, E. (Warrington)Wyatt, W.
    Hudson, J. H. (Ealing, W.)Price, M. PhilipsYates, V. F.
    Hughes, Emrys (S. Ayr)Proctor, W. T.Younger, Hon. Kenneth
    Hughes, Hector (Aberdeen, N.)Pryde, D. J.Zilliacus, K.
    Hughes, H. D. (W'lverh'ton, W.)Randall, H. E.
    Hynd, J. B. (Attercliffe)Ranger, J.

    TELLERS FOR THE AYES:

    Irving, W. J. (Tottenham, N.)Rankin, J.Mr. Joseph Henderson and
    Mr. Wilkins.

    NOES

    Agnew, Cmdr. P. G.Boles, Lt.-Col. D. C. (Wells)Buchan-Hepburn, P. G. T.
    Baldwin, A. E.Boothby, R.Challen, C.
    Barlow, Sir J.Bower, N.Clarke, Col. R. S.
    Beamish, Maj. T. V. H.Boyd-Carpenter, J. A.Conant, Maj. R. J. E.
    Bennett, Sir P.Braithwaite, Lt.-Comdr. J. G.Cooper-Key, E. M.

    Corbett, Lieut.-Col. U. (Ludlow)Jeffreys, General Sir G.Renton, D.
    Crosthwaite-Eyre, Col. O. E.Lambert, Hon. G.Roberts, Emrys (Merioneth)
    Crowder, Capt. John E.Langford-Holt, J.Ropner, Col. L.
    Darling, Sir W. Y.Law, Rt. Hon. R. K.Savory, Prof. D. L.
    Digby, Simon WingfieldLegge-Bourke, Maj. E. A. H.Scott, Lord W.
    Donner, P. W.Low, A. R. W.Shephard, S. (Newark)
    Drayson, G. B.Lucas-Tooth, Sir H.Smiles, Lt.-Col. Sir W.
    Drewe, C.McFarlane, C. S.Spearman, A. C. M.
    Dugdale, Maj. Sir T. (Richmond)Maclay, Hon. J. S.Stanley, Rt. Hon. O.
    Eccles, D. M.Maclean, F. H. R. (Lancaster)Stoddart-Scott, Col. M.
    Eden, Rt. Hon. A.Macmillan, Rt. Hn. Harold (Bromley)Strauss, Henry (English Universities)
    Foster, J. G. (Northwich)Maitland, Comdr. J. W.Sutcliffe, H.
    Fox, Sir G.Manningham-Buller, R. E.Thornton-Kemsley, C. N.
    Fraser, H. C. P. (Stone)Marples, A. E.Thorp, Brigadier R. A. F.
    Fraser, Sir I. (Lonsdale)Marshall, D. (Bodmin)Turton, R. H.
    Gage, C.Mellor, Sir J.Wakefield, Sir W. W.
    Galbraith, Cmdr. T. D. (Pollok)Molson, A. H. E.Walker-Smith, D.
    Gates, Maj. E. E.Morris, Hopkin (Carmarthen)Ward, Hon. G. R.
    Gomme-Duncan, Col. A.Morris-Jones, Sir H.Watt, Sir G. S. Harvie
    Gridley, Sir A.Morrison, Rt. Hon. W. S. (Cirencester)White, Sir D. (Fareham)
    Harris, F. W. (Croydon, N.)Nicholson, G.Williams, C. (Torquay)
    Harvey, Air-Comdre. A. V.Noble, Comdr. A. H. P.Willoughby de Eresby, Lord
    Haughton, S. G.Odey, G. W.York, C.
    Headlam, Lieut.-Col. Rt. Hon. Sir C.O'Neill, Rt. Hon. Sir H.Young, Sir A. S. L. (Partick)
    Hogg, Hon. Q.Peaks, Rt. Hon. O.
    Hollis, M. C.Peto, Brig. C. H. M.

    TELLERS FOR THE NOES:

    Hope, Lord J.Ponsonby, Col. C. E.Brigadier Mackeson and
    Hudson, Rt. Hon. R. S. (Southport)Raikes, H. V.Colonel Wheatley.
    Hurd, A.Rayner, Brig. R.

    I beg to move, as an Amendment to the proposed new Clause, at the end, to add:

    "(4) For the purposes of this section and section forty-eight of this Act, it shall be the duty of the highway authority in relation to every public path over which a right of way exists to secure the removal of obstructions."
    This Amendment has been put down mainly for the avoidance of doubt. It is quite clear that the Footpaths Committee recommended that a general duty should be laid upon the highway authority to remove obstructions from rights of way. It is also quite clear from the Minister's speech on Second Reading that he intends that the maintenance of footpaths shall include the removal of obstructions, but there is still, apparently, considerable legal doubt whether the wording of this new Clause as drafted does, in fact, provide for the removal of obstructions as well as for the duty of repairs.

    In the past repair and the removal of obstructions have been dealt with legally as separate issues, and in the standard works on the subject repair and the removal of obstructions are dealt with quite separately. The only duty which this new Clause lays on the highway authority is that of the repair of public paths, but it in no way makes it crystal clear that the repair of public paths also includes the removal of obstructions. As I say, this Amendment seeks to get rid of doubt and to make it quite clear that the duty of the highway authority to repair public paths should also cover the removal of obstructions, and that that duty lies on the highway authority and not on any subordinate authority.

    We are thinking, primarily, of two types of obstruction; first, the tree which falls across a path and blocks it, and, secondly, locked gates and fences which are deliberately put across paths. We seek an assurance from the Minister that the Bill as drafted specifically lays upon the highway authority the duty to deal with both these types of obstruction.

    I ask my hon. Friend to believe that there is nothing between us in our ambitions on this subject; we are equally anxious that there should be no obstruction of rights of way. It is really a legal point as to what the existing law now is. I can do no more than give him a categorical assurance that there is no doubt under the existing highway law that it is the duty of the highway authority to maintain all highways, for the repair of which they are responsible, so as to allow the public to exercise their rights over them in all states of weather. That must include the removal of obstructions, and because we believe that is the state of the existing law we do not think it would be right to accept the Amendment. We think that the point is already covered, and that it would not necessarily make the law clearer by duplicating it. Therefore, I ask my hon. Friend to accept the assurance I have given, and allow us to pass on.

    In view of my hon. Friend's assurance, I beg to ask leave to withdraw the Amendment.

    Amendment, by leave, withdrawn.

    Clause added to the Bill.