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'(1) In section 137 of the Highways Act 1980 (penalty of wilful obstruction) there shall be inserted after subsection (1) the following subsections —
(1A) Where a person is convicted of an offence under subsection (1) which relates to the wilful obstruction of a footpath, bridleway or byway open to all traffic and the offence is continued after the conviction he is guilty of a further offence and liable to a fine not exceeding £10 for each day on which the offence is so committed.
(1B) On convicting a person of an offence under subsection (1) of this section which relates to the wilful obstruction of a footpath, bridleway or byway open to all traffic, or of an offence under subsection (1A) of this section, a magistrates court shall have power to order the removal of the obstruction
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(2) After subsection (2) of that section there shall be inserted the following subsection:—
(3) in this section 'byway open to all traffic' means a highway over which the public have a right of way for vehicular and all other kinds of traffic but which is used by the pubic mainly for the purposes for which footpaths and bridleways are so used.".'.—[Mr. Andrew F. Bennett.]
§ Brought up, and read the First time.
§ Mr. Andrew F. BennettI beg to move, That the clause be read a Second time.
I hope that the Minister will look sympathetically on this new clause. It is important, because at present people 1270 are flouting the law and getting away with it. People ate concerned that, when they go into the countryside, footpaths are deliberately obstructed by the landowner. It is especially sad that some local authorities do not pursue the clearing of such footpaths with a great deal of diligence, and neither do they pursue with diligence the bringing of prosecutions to ensure that such footpaths are available for public use. Even when prosecutions are brought, the powers of the courts are limited and do not allow for the removal of the obstruction.
We do not want someone punished for such an offence. We want them to stop doing it. Instead of imposing a court sentence which involves a fine, it would be far better if the court had the power to ensure that the obstruction was removed.
The new clause therefore seeks to provide that where a person clearly wilfully sets out to obstruct a public right of way there shall be powers for the courts to order that the obstruction should be removed and people should have free passage over the right of way.
I very much hope that the Minister will accept the new clause.
§ Mr. Neil ThorneIf my hon. Friend the Minister has had time to collect his thoughts, is he now able to answer my earlier question on new clause 20 as to what powers the wardens will have under that proposal?
§ Mr. Stephen RossI merely wish to say what an eminently sensible proposal this is. I hope that the Minister will accept it.
We all know of cases in which certain landowners—and they are the great exception—can be extremely obstinate I can think of a case in my constituency in which a farmer ploughed up 900-odd acres of land which used to be pasture and put barbed wire across at least three footpaths. We never got two of those footpaths back. We have never had an authority which was prepared to go to the limit.
The new clause gives power to remove the obstruction. Presumably, if the farmer then puts it back he would be in contempt of court. If we are serious about access to the countryside and keeping our footpaths open, we must accept that there are a few cases in which obstruction takes place and bloodymindedness is involved and in which local authorities do not wish to go to the limit.
§ Mr. RossIn this particular case, he was not. He is still going strong, too. He came from Lincolnshire. That is why he has ploughed everything up.
§ Mr. Mark Lennox-Boyd (Morecambe and Lonsdale)We are very stubborn.
§ Mr. RossYes, indeed. He came from quite near the hon. Gentleman's part of the world.
I believe that this is a sensible proposal and I hope that the Minister will accept it.
§ Mr. CryerI, too, endorse new clause 24. It seems eminently sensible. All of us who have any kind of rural area in our constituencies have experienced difficulties about footpaths and wilful obstruction. The new clause gives as a reserve power the right to take action reasonably speedily without a great deal of bureaucratic procedure, for which the Minister criticised a previous new clause 1271 with much the same aim, to ensure that footpaths should be kept open and that no means should be used to prevent their being kept available.
The Minister should therefore have some sympathy with this proposal. As before, if there is any defect in the wording, I am sure that if the Minister accepts the principle behind it any slight amendments which may be necessary can be added later. I hope that he will treat the proposal with sympathy and accept it.
§ Mr. HardyI wish briefly to point out to the Minister that the word "wilful" appears in the new clause. We are not talking about accidental obstruction or breach of law because people do not realise what they are doing.
The Conservative Party has long maintained its adherence to the principles of law and order. An offence which is wilfully committed is therefore surely one that the Government cannot logically oppose or consistently ignore.
For that reason, the Minister should seriously consider my hon. Friend's point. If he wishes to change the wording to get the phraseology technically correct, that is certainly all right with us, but if he ignores my hon. Friend's proposal people will be encouraged to carry out these acts, wilfully or otherwise.
§ Mr. MonroFirst, my hon. Friend the Member for Ilford, South (Mr. Thorne) asked about wardens. They are there to advise and assist the public and landowners in the use of footpaths, byways and so on. They perform a valuable service, much of it carried out voluntarily nowadays in our national parks. I am sure that this discretionary power will be valuable to the authorities in the future.
Although the new clause applies only to public paths and byways open to all traffic, it amends legislation that pertains to all classes of highway and should, strictly speaking, be considered in the context of that legislation. It raises the question whether, in principle, the law on obstruction of public rights of way should be different from that applying to other classes of highway.
Under section 130 of the Highways Act 1980, highway authorities have a duty to assist and protect the right of the public to the use and enjoyment of all highways. They are also required to prevent as far as possible the stopping-up or obstruction of highways. In addition, in the fulfilment of those duties authorities are empowered to take legal proceedings or take whatever alternative steps they consider are appropriate. Moreover, under section 143 of the Act they have specific powers to secure the removal of obstructions including the power to remove the obstruction themselves if the person responsible does not comply with their request to do so. The exercise of those powers is not, of course, dependent on a conviction in the courts. In the circumstances, I do not think it appropriate to confer similar powers on magistrates.
As regards the purpose of the new subsection (1A), the offence in section 137(1) of the Highways Act is not suitable for the application of a daily penalty. Such penalties are appropriate to only a limited category of offences; and even then the complexity surrounding their application makes them uncertain and unpopular with the courts.
For a daily penalty to be applied by a court, the offence must be one of omission which is capable of continuation 1272 and one of which such continuation is capable of proof. A daily penalty cannot be applied in respect of an offence which, like that in question, arises from the commission of an unlawful act. Such an offence is, by definition, one which is committed once and for all and is capable only of repetition, not of continuation. Repeated offences under section 137 of the Highways Act 1980 should be prosecuted separately with the offender liable to the maximum substantive fine on each occasion.
The 1980 Act, which has not been in force for long, fully covers the concern of the hon. Member for Stockport, North (Mr. Bennett). If authorities fulfil their duties—and we have always been concerned about those duties being fulfilled—there should be no major difficulty in removing obstructions, whether permanent or temporary. I suggest that the new clause is unnecessary and that the hon. Gentleman should not press it.
§ Mr. Denis HowellThe Minister read his brief as if he knew nothing about it and was unconvinced by it. He left us all thinking that we should vote for the new clause.
I am advised by my right hon. Friend the Member for Barrow-in-Furness (Mr. Booth), who is an expert on transport legislation, that the 1980 Act was a consolidation measure. If so, the power on which the Minister is relying existed before 1980 and has rarely been effective. Therefore, we ought not to accept the main burden of the hon. Gentleman's answer.
When a highway authority fails to secure the removal of an obstruction, the only lawful action left to an individual is to take out a private prosecution under section 137 of the 1980 Act. That cannot be satisfactory.
We are talking, as my hon. Friend said, about someone who is wilfully obstructing a right of way or a public footpath and, even though convicted, refuses to remove that obstruction. Therefore, this is a law and order point and it is eminently suitable that in such cases, first, the prosecution should not be left to the private individual. It should be within the capacity of the highway authority or local authority to bring the prosecution. Secondly, where the wilful obstruction continues, even after conviction, there should be a daily penalty so that society can register its serious concern and, thirdly, power should be given to the courts to order the removal of the obstruction. That is being suggested here.
10.45 pm
Millions of people who have access to the countryside are worried about the ploughing up of footpaths, the obstructions that are put in their way, and the disappearance of footpaths despite our definitive maps, which has been happening at a growing rate. They are asking us to ensure that we do something about it.
It is correct for us to have this debate, even at this late hour. Although I did not believe this a short time ago, I am beginning to believe that I should press the amendment to a Division, because in another place hundreds of amendments were tabled on part I and part II. We discussed the Bill in Committee for over 100 hours. Almost all that time was taken up with part I—the protection of rare species, which we are all keen on—and part II about marine nature reserves and areas of special scientific interest, Sandford and so on.
Neither in another place nor in the House have we yet given a proper, fair hearing to the views of those who want access to the countryside—ramblers, campers and so on. Even though it is late, if my hon. Friend presses the 1273 amendment to a Division and although there will not be a large number voting on this almost the last day of Parliament before we go into the long recess, it behoves the House to play fair with those who want access to the countryside, especially those from the towns and cities. They are anxious that we give as much consideration to their rights as we have given to the rights of bird watchers and those interested in flora, fauna and marine reserves.
The Minister's reply has been extremely disappointing. It is time for us, on behalf of ramblers, campers and sightseers, to register our grave concern that if the Minister cannot do better than he has done, we shall change our advice and advise my hon. Friend to change his mind.
§ Mr. MonroWhat is sometimes so disappointing about the right hon. Gentleman is that he tends to forget all the pluses that are in the Bill which help all those interested in the countryside. It is no use hon. Gentlemen turning up at this time when we have been debating the Bill for a second day and many hours in Committee. The hon. Gentleman seems to believe that we have not been giving consideration to those who wish to use footpaths.
I do not know whether the right hon. Gentleman has taken the trouble to read the deliberations of the Spicer committee and the immense amount of trouble that many hon. Members and others interested in the countryside and conservation put into the Spicer Committee on ways of dealing with many of the controversial issues about footpaths.
§ Mr. MonroCount fifteen. It is wrong for the hon. Gentleman to say at this time of night that we have taken no interest in the rights of those who want to go into the countryside. That is manifestly incorrect. He is wrong to start raising the temperature of the House on an irrelevant point.
§ Mr. SpearingThere have been many changes to different aspect; of the Bill. This debate concerns the amendment of my hon. Friend the Member for Stockport, North (Mr. Bennett), in whom I have vested a great deal of confidence. The answer by the Minister appears to be unsatisfactory and illogical. I ask him to accept what appears to be a sensible and adequate new clause.
§ Mr. MonroThe hon. Gentleman is within his rights to ask me to accept the new clause, but I fear that he will not get the answer he seeks. I have given clear reasons. The right hon. Member for Birmingham, Small Heath (Mr. Howell) is right in saying that the 1980 Act was a consolidation measure. That was known. It brought to the notice of the public the fact that the legislation was available.
Hon. Members have frequently found that Acts dealing with bird protection and other conservation matters have been available for years but have not been used as often as might have been hoped to fulfil the wishes of Parliament. This is not, however, a new clause that I wish to accept.
§ Mr. Lennox-BoydIs it not the case that the new clause would cre ate an offence of a continuing nature and that for every day on which the offence was committed evidence would have to be given in court before a fine could be imposed? The nature of the new clause means that it will not be practical.
§ Mr. Andrew F. BennettThe Minister's response was extremely disappointing. Most hon. Members will feel that substantial improvements have been made to parts I and II of the Bill. Ramblers and walkers, however, are disappointed with part III. They had believed that the proposals of the previous Labour Government for footpaths contained reasonable compromises but then found that many of the compromises were "welshed on" by various groups that found they could press their objections with a new Government. Many of the compromises were lost.
Many of the clauses put forward in the original Government proposals were unacceptable to walkers. After much effort, some of the worst provisions went removed in the other place. However, most walkers would prefer not to see part III, even as it stands. They feel disgruntled that time after time they are asked to compromise only to find that if the compromise does not suit another group they are asked to make a further compromise. The Minister should consider the attitude of walkers.
In the 1930s, walkers found that they received little from the Government and started to take matters into their own hands with mass walks on the Peak and Kinder Scout. Many regular weekend walkers are beginning to say that the Government seem little concerned about them and prefer to put every obstruction in their way. It occurs to them that rather than trying to get the law changed they should start taking matters into their own hands.
When someone behaves illegally by blocking a footpath repeatedly and wilfully, walkers have a right to demand that the Government should take action. The Minister's only response is to say that legislation already exists. However, that legislation has not given walkers the protection that they demand. It has failed. The drafting of the new clause may not be perfect, but there is still time for the Minister to rectify that situation in the other place. I appeal to the Minister to accept the new clause. If he refuses, I hope that my hon. Friends will join me in voting for it.
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 33, Noes 106.
1275| Division No. 297] | [10.54 pm |
| AYES | |
| Beith, A. J. | Marks, Kenneth |
| Booth, Rt Hon Albert | Millan, Rt Hon Bruce |
| Cocks, Rt Hon M. (B'stol S) | Morton, George |
| Cryer, Bob | Orme, Rt Hon Stanley |
| Dalyell, Tam | Powell, Raymond (Ogmore) |
| Davis, T. (B'ham, Stechf'd) | Ross, Stephen (Isle of Wight) |
| Dean, Joseph (Leeds West) | Skinner, Dennis |
| Dixon, Donald | Soley, Clive |
| Dormand, Jack | Stewart, Rt Hon D. (W Isles) |
| Douglas-Mann, Bruce | Tinn, James |
| Garrett, John (Norwich S) | Walker, Rt Hon H.(D'caster) |
| Graham, Ted | Welsh, Michael |
| Hardy, Peter | Whitehead, Phillip |
| Harrison, Rt Hon Walter | Winnick, David |
| Haynes, Frank | |
| Howell, Rt Hon D. | Tellers for the Ayes: |
| Kaufman, Rt Hon Gerald | Mr. Andrew F. Bennett and |
| Kerr, Russell | Mr. Nigel Spearing |
| Leighton, Ronald |
| NOES | |
| Alexander, Richard | Baker, Nicholas (N Dorset) |
| Ancram, Michael | Berry, Hon Anthony |
| Biggs-Davison, John | Murphy, Christopher |
| Blackburn, John | Neale, Gerrard |
| Bonsor, Sir Nicholas | Needham, Richard |
| Bright, Graham | Neubert, Michael |
| Brinton, Tim | Newton, Tony |
| Brooke, Hon Peter | Normanton, Tom |
| Brown, Michael(Brigg & Sc'n) | Onslow, Cranley |
| Buck, Antony | Osborn, John |
| Cadbury, Jocelyn | Page, Rt Hon Sir G. (Crosby) |
| Carlisle, John (Luton West) | Page, Richard (SW Herts) |
| Carlisle, Kenneth (Lincoln) | Patten, Christopher (Bath) |
| Clarke, Kenneth (Rushcliffe) | Prior, Rt Hon James |
| Colvin, Michael | Proctor, K. Harvey |
| Cope, John | Renton, Tim |
| Cranborne, Viscount | Rhys Williams, Sir Brandon |
| Dorrell, Stephen | Roberts, M. (Cardiff NW) |
| Dover, Denshore | Roberts, Wyn (Conway) |
| Durant, Tony | Rossi, Hugh |
| Farr, John | Scott, Nicholas |
| Fenner, Mrs Peggy | Shaw, Giles (Pudsey) |
| Fletcher-Cooke, Sir Charles | Shepherd, Colin (Hereford) |
| Goodlad, Alastair | Silvester, Fred |
| Grant, Anthony (Harrow C) | Sims, Roger |
| Griffiths, Peter Portsm'th N) | Speed, Keith |
| Gummer, John Selwyn | Speller, Tony |
| Hampson, Dr Keith | Spicer, Jim (West Dorset) |
| Hastings, Stephen | Spicer, Michael (S Worcs) |
| Hawkins, Paul | Stainton, Keith |
| Hawksley, Warren | Stanbrook, Ivor |
| Heddle, John | Stevens, Martin |
| Hill, James | Stradling Thomas, J. |
| Hogg, Hon Douglas (Gr'th'm) | Taylor, Teddy (S'end E) |
| Hooson, Tom | Tebbit, Norman |
| Hurd, Hon Douglas | Thompson, Donald |
| Jopling, Rt Hon Michael | Viggers, Peter |
| King, Rt Hon Tom | Waddington, David |
| Le Marchant, Spencer | Wakeham, John |
| Lester, Jim (Beeston) | Waller, Gary |
| Lloyd, Ian (Havant & W'loo) | Watson, John |
| Lloyd, Peter (Fareham) | Wells, Bowen |
| Lyell, Nicholas | Wheeler, John |
| MacGregor, John | Whitney, Raymond |
| Major, John | Wickenden, Keith |
| Marland, Paul | Wilkinson, John |
| Marlow, Tony | Williams, D.(Montgomery) |
| Mather, Carol | Winterton, Nicholas |
| Maxwell-Hyslop, Robin | Wolfson, Mark |
| Mellor, David | Young, Sir George (Acton) |
| Meyer, Sir Anthony | |
| Mills, Iain (Meriden) | Tellers for the Noes: |
| Moate, Roger | Lord James Douglas-Hamilton |
| Monro, Hector | and |
| Morris, M. (N'hampton S) | Mr. Robert Boscawen. |
| Morrison, Hon P. (Chester) |
§ Question accordingly negatived.