HC Deb 20 February 1992 vol 204 cc530-6
Mr. McLoughlin

I beg to move amendment No. 20, in page 2, line 27, leave out from 'any' to 'which' in line 28 and insert 'statutory provision'.

Madam Deputy Speaker

With this, it will be convenient to take the following amendments: No. 4, in page 2, line 30, leave out from '3' to end of line 34.

Government amendments Nos. 21 and 22.

No. 105, in page 2, line 34, at end insert 'provided that both Houses of Parliament have approved by resolution a list or schedule of changes provided for in the order, and that such a list or schedule shall have been laid before each House of Parliament for two months prior to such approval.'. No. 106, in page 2, line 35, leave out subsection (4).

7.45 pm
Mr. McLoughlin

I undertook in Committee to reconsider the drafting of clause 5(3)(b) because we accepted that the powers that it would confer on the Secretary of State were too wide. As drafted, the provision would allow him to alter permanently legislation which is of general application, without any reference to Parliament—a point on which we had a good debate led by the hon. Member for Bradford, South (Mr. Cryer).

Mr. Andrew F. Bennett

It was about Henry VIII.

Mr. McLoughlin

Exactly. I probably learned much about parliamentary procedure. I recommend that hon. Members read some of our debates in Committee, as they were well rehearsed.

The Joint Committee recognised that many orders will involve changes to works which have previously been authorised by private Act; so it must be possible for orders to make changes in the law which applies specifically to the works in question, in the same way that private Bills already do. The amendments that we are now proposing will make it clear that that power is to be restricted to Acts and instruments which are of local application only.

It may help the House if I give some examples of what the amendments would and would not allow orders to provide for. They would allow changes in provisions of local application in previous private Acts and hybrid Acts which relate to working or operation of a railway or an inland waterway. The example that I quoted in Committee —the change in the Severn Navigation Act 1842—is one such Act. If, for example, the railway works provided for in the Channel Tunnel Act needed alteration, an order could achieve that, as long as the provisions were of local application only. An order could not alter public legislation or private legislation of a general nature. Thus it would not be possible to change by order the general duties which are contained in the British Waterways Board Bill, presently in another place, should it pass into law.

The amendments will not affect the scope of clause 5(3)(a), which provides for an order to modify or exclude enactments relating to the subject matter of the order. That power properly includes enactments of general application, because it may be necessary to make adjustments to the way in which public general Acts apply where they do not fit the circumstances of a particular case.

I hope that the hon. Member for Denton and Reddish (Mr. Bennett) will not press his amendment. It would mean that orders could not amend legislation of local application and that, by inference, measures which required that should all come to this House as private Bills. I hope that his amendment was a fly cast across the water in order to raise the fish on the amendment paper in my right hon. Friend's name.

Similarly, I ask the hon. Member for Newham, South (Mr. Spearing) not to press amendment No. 105 on this subject. Although it at least retains the possibility of orders amending legislation, it would mean that any order which sought to amend legislation of local application would have to come to Parliament for approval. There are likely to be many instances of that. For example, most orders with compulsory acquisition powers will disapply the Lands Clauses Consolidation Act 1845. It would be unreasonable to delay the aproval of such orders when we have agreed that the essential purpose of the reforms is to remove consideration of local matters from Parliament.

Referring to amendment No.106, I appreciate that the purpose of clause 5(4) is perhaps a little obscure. I can nevertheless assure the hon. Member for Newham, South that it does not amount to a licence for the Secretary of State to include in orders all sorts of provisions way beyond the scope of the Bill. It is concerned with rather technical matters which have long been included in private Bills.

Subsection (4) is essentially a "sweeping-up" provision. It would sanction, for example, a provision extending a time limit for the exercise of powers granted in a previous order, or a provision which prescribed different dates for the coming into force of different parts of an order. There is nothing more sinister in subsection (4) than that, but, without it, there would be a definite risk that applicants would have to come to Parliament to be sure of getting all the powers necessary to bring their proposals to fruition. That is clearly undesirable, and I hope that the hon. Gentleman will agree not to press amendment 106.

I invite the House to endorse amendments Nos. 20 to 22.

Mr. Spearing

The Minister has referred to amendments Nos.105 and 106. As he has reflected, amendment No.105 would enlighten the House. He said that it would bring the House back into play in matters which it wishes to remove from its purview. Clause 5(3)(b) states that an order may make such amendments, repeals and revocations as appear to the Secretary of State to be necessary or expedient in consequence of any provision of the order or otherwise in connection with the order", and that they should be listed, be known and receive the approval of the House.

My great worry about most of the Bill is not only about the removal of the procedure, over which there can be a legitimate difference of view, but it carries with it the power of the Minister to alter legislation passed by the House. When people believe that their rights are entrenched, if those rights are removed without due notice even to the House, confidence in our procedures could be undermined.

How often have we heard people say, "It is all right: it is entrenched in an Act of Parliament"? People make the reasonable assumption that only another Act of Parliament can repeal or amend a provision. It is a common-sense attitude. As I said earlier, most Members of Parliament probably do not know that an Act can, indeed, be changed or repealed by a statutory instrument, let alone one which, following our earlier discussion, will not even come before the House.

The Minister says that we must have in the Bill the words that I quoted from clause 5. He says that it will not be outside the scope of the Bill. But the scope of the Bill is—I will not say beyond the horizon—tremendous. So I am afraid that the words penned by the Secretary of State or someone else, with the intention of being reassuring, are not in the least reassuring, because the scope is so wide.

Amendment No. 106 seeks to remove the whole of clause 5(4). It is one of the most stringent parts of the Bill. I shall read out subsection 4(a) and connect with it the latter part of subsection 4(a)(iii). It says: any provision that appears to the Secretary of State to be necessary or expedient for giving full effect to— … an instrument made under an Act of Parliament before that time, and which is of a kind which could be included in an order under section 1 or 3 above;". "That time" is the time at which the Bill comes into force. In other words, the subsection is a specific formula which allows any Secretary of State to amend any instrument made under an Act, perhaps a long time ago, which comes within the scope of the Bill.

We are talking about retrospectively changing legislation, and not even by means of a new statutory instrument. I still object to the measure in principle. I am afraid that the words that the Secretary of State used are far from reassuring, although they may have been designed with that objective. Alas, I find the reverse.

Mr. Peter Bottomley

I have come late to this part of the Bill, but has the hon. Gentleman got it the right way round? Reading subsection (4)(a)(iii), it strikes me that the Secretary of State's power is to give effect to a provision contained in an Act of Parliament. It does not seem to relate to making an order which does not seek to fulfil the purposes of an Act of Parliament passed before this Bill gave the Secretary of State the order-making power. Or have I misunderstood?

Mr. Spearing

I will intervene in the hon. Gentleman's speech, if I may Madam Deputy Speaker. As I understand it, the provision gives the Secretary of State power to change legislation retrospectively when an Act comes within the scope of the Bill. Therefore, any legislation that sets up a railway, tramway, waterway, inland harbour, barrage or anything similar would surely come within the scope of subsection (4)(a)(iii). Therefore, once the Bill is enacted, the Minister will surely have strong retrospective powers. That is entrenched in the Bill.

Mr. Bottomley

My reading is that the Bill gives the Secretary of State power to give effect to a provision in an Act of Parliament. Subsection (4)(a)(iii) does not enable him to destroy a power created in a previous Act of Parliament. The Bill gives the Secretary of State the power to reinforce an Act and make it effective.

Mr. McLoughlin

The Bill allows an order to overcome provisions in a local act of local significance, as an order can overcome a private Bill. In Committee, hon. Members expressed anxiety that the original powers were far too wide and could overcome any legislation. Today we have sought to tighten and tidy up the powers in response to the points made in Committee.

Amendment agreed to.

Amendments made: No. 21, in page 2, line 31, after 'revocations', insert 'of statutory provisions of local application'.

No. 22, in page 2, line 34, at end insert 'and for the purposes of this subsection "statutory provision" means provision of an Act of Parliament or of an instrument made under an Act of Parliament.'— [Mr. McLoughlin.]

Mr. McLoughlin

I beg to move amendment No. 23, in page 3, line 6, at end add— '(6) An order under section 1 or 3 above shall not extinguish any public right of way over land unless the Secretary of State is satisfied—

  1. (a) that an alternative right of way has been or will be provided, or
  2. (b) that the provision of an alternative right of way is not required.'.

Madam Deputy Speaker

With this it will be convenient to take amendment No. 6, in page 3, line 6, at end add— '(6) An order under section 1 or 3 above shall not extinguish any public right of way over land unless the Secretary of State is satisfied that a reasonably convenient alternative right of way exists or will he provided.'.

Mr. McLoughlin

The amendment fulfils another promise which I gave in Committee to consider whether further provision was necessary in the Bill to protect footpaths and bridleways which may be affected by works proposed in orders under clauses 1 or 3 of the Bill.

As I told the Committee, I should prefer to base a provision about this on section 251 of the Town and Country Planning Act 1990 because that example allows the Secretary of State some discretion in deciding whether the circumstances of a case justify the provision of an alternative right of way. However, I understand that the Rights of Way Review Committee favours amendment No. 6, proposed by the hon. Member for Southport (Mr. Fearn). This is based on section 14 of the Highways Act 1980 and would mean that in any case where an order under clauses 1 or 3 included a provision for extinguishing a right of way it would be necessary to provide a reasonably convenient alternative route if one did not already exist.

While I have much sympathy with those who are concerned to protect our footpath network, I consider that the hon. Gentleman's amendment is a little too inflexible. It would clearly not be sensible to oblige an applicant for an order to incur the cost of providing a diversion if it would not be used. I gather that, because of this restriction, the definition of "reasonably convenient" has been stretched somewhat when new roads have been built. But the amendment is a bad way of proceeding. Our amendment is much clearer. We shall, of course, issue guidance to applicants about how rights of way issues will be assessed, and I shall be happy to consult the Rights of Way Review Committee about that in due course.

I hope that the hon. Member for Southport will not feel it necessary to press his amendments as I have given an assurance that I will meet the wishes of the Rights of Way Review Committee.

Mr. Snape

I shall be brief. I wish to ask the Minister whether the rights of way referred to in an amendment include rights of way over water as well as over land. I do not expect him to give me an instant reply, but if they do not, that would sit rather oddly with Government amendment No. 33, which specifies that rights of way over land include rights of navigation over water, and paragraph 10 of schedule 1, where rights of way over land are specified as including rights of navigation over water. I hope that those who, if not walk on the water, sail on it, are not to be treated worse than those who enjoy rights of way over land. I should be grateful if the Minister would clarify that point.

Mr. Fearn

In view of what the Minister said, I have no wish to press amendment No. 6. Earlier, I raised a point about the disabled which has still not been dealt with. I t may come under this amendment. I should be grateful if the Minister could answer the point now.

Mr. Andrew F. Bennett

The hon. Member for Southport (Mr. Fearn) may not want to press amendment No. 6, but my name was added to it and I believe that it has some merits over Government amendment No. 23. The term "reasonably convenient" would be useful in the Bill. I am certainly conscious that the Rights of Way Review Committee includes the Ramblers Association and other bodies that are experts on footpath matters, at least nationally. However, such bodies tend to depend on volunteers. In some parts of the country, they do not have the coverage that they or I would like, so one finds that often footpath matters have to be taken up by someone who does not know all the details of the legislation.

If "reasonably convenient" is included in the Bill it will be a good hint or guide to anyone pursuing a case that he has a line of argument or attack when a closure or diversion is proposed by an organisation. There is a great deal of difference between providing an alternative and providing a "reasonably convenient" alternative. The Minister ought to make it easy for people who may be affected by legislation to appreciate the rights and arguments that they can use without needing to consult national bodies which are experts on such matters or seek legal advice from a lawyer.

The Minister should reconsider the matter to find out why the phrase "reasonably convenient" cannot be on the face of the Bill, because it is the sort of phrase that a lay person will understand. It is important that legislation is easy for people to understand if it diverts footpaths.

The Minister says that he cannot accept amendment No. 6 and insert those words in the Bill because it would mean that an alternative path would have to be made, even if no one used it. The Minister knows that, if no one uses a path, it is easy for it to be closed. A notice is served and no one objects to the closure if no one uses the path. Therefore, there is no difficulty. If people use a path, it is not satisfactory to put in an alternative. It is important that it is a reasonably convenient alternative.

I hope that, if the Minister does not accept amendment No. 6 now, he will consider whether the words can be inserted in the House of Lords—I know that he is keen for no amendments to be made there—so that people outside who have to work with this legislation and who are not experts will get a hint from the wording of the Bill.

8 pm

Mr. McLoughlin

To answer the hon. Member for West Bromwich, East (Mr. Snape)—as I was not able to do in an intervention—rights of way over water are in effect rights of navigation. Both are covered by the Bill.

The hon. Member for Southport (Mr. Fearn) asked earlier about the rights of disabled people, and he also asked me about their rights in relation to the provision of crossings which may be affected by closing the rights of way over railways. When we consider crossings, we bear in mind rights for disabled people. We try to accommodate them. They do not have many rights at level crossings of any description at present, because of the roughness of the ground and the rail tracks. However, I am sure that that will be improved as a result of earlier amendments, because it will obviously be taken into consideration, although it is a matter for the operator to decide.

The hon. Member for Denton and Reddish (Mr. Bennett) asked me to consider his amendment more fully. Of course I shall consider it in the light of the representations that he has made. I am prepared to meet the Rights of Way Review Committee to discuss what it is proposing and to try to achieve some agreement. If we cannot get agreement, it may well be pursued in another place, but I hope that we can achieve a general agreement which will satisfy the people involved.

Mr. Andrew F. Bennett

If the Minister hopes to have a further meeting before the legislation moves to another place, can he tell us the timetable in another place? Is it true that the Bill has to be finished by 16 March?

Mr. McLoughlin

I shall deal with this place and worry about the timetable here. I hope that we can make progress tonight. On that understanding, I hope that the hon. Gentleman will not press his amendment.

Amendment agreed to.

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