Highways (Obstruction by Body Corporate) Bill (Hansard, 21 May 2004)

§ Mr. Michael Jabez Foster (Hastings and Rye) (Lab)
I beg to move, That the Bill be now read the Third time.
This short Bill seeks to amend the Highways Act 1980 by applying section 314 of the Act to the offences of wilfully obstructing a highway—section 317 of the original Act—and failing to comply with a court order requiring removal of the obstruction, under section 137ZA of the Act. The Bill, if enacted, will enable proceedings to be enforced against officers of a body corporate who are responsible for obstructing rights of way. It prevents the unscrupulous from setting up and hiding behind a "paper company".
I welcome the support that the Bill has received from both sides of the House. I thank those Members who served on an extremely helpful and co-operative Committee. By coincidence most of them were from, or had connections with, East Sussex—testimony, no doubt, to the beautiful countryside in that part of the United Kingdom, which we all want to share. The officials at the Department for Environment, Food and Rural Affairs who helped to draft the Bill have proven that a piece of legislation need be neither long nor complicated to have an effective impact and to protect the rights of UK citizens.
It should be recognised that the Bill might never have existed had it not been for the courage and determination of Kate Ashbrook. Her campaign to free a 140-year-old right of way in East Sussex from obstruction brought to light the loophole in the existing legislation. She fought a personal campaign against a company which hid behind the veil of incorporation. If the Bill is passed, such a situation will not be allowed to occur again, and it will be testimony to her fortitude.
I also thank the Ramblers Association for their encouragement and help in preparing the Bill, my researcher, Berni Smith, for her research on the detail, and the Minister for Rural Affairs and Local Environmental Quality and hon. Members on both 1206 sides of the House for their support. In particular, I express my thanks to my hon. Friend the Member for Hendon (Mr. Dismore), whose expertise in parliamentary procedure has been invaluable.
I hope the Bill will gain the same sort of support in another place, and that ramblers in Britain can walk freely before we are recessed for the summer. I shall be content if my epitaph describes me in consequence as the "Rambling MP" although my brevity today may be pleaded in mitigation.

§ Mr. Mark Simmonds (Boston and Skegness) (Con)
We on the Conservative Benches warmly welcome the intentions of the Bill and congratulate the hon. Member for Hastings and Rye (Mr. Foster) on his efforts in bringing this important issue to the House.
As someone who is a Member for a rural constituency and has a keen interest in rural affairs, I understand the importance of access to the countryside wherever possible and appropriate. Historical rights of way should be preserved to ensure the continued enjoyment of the countryside by our constituents. Rogue landowners must not be allowed to obstruct footpaths and highways while hiding behind incorporated shell companies to avoid paying fines and removing the obstructions. It is right that a loophole in the law that allows the circumvention of existing provisions is closed.
The current loophole is exploited by putting land into the ownership of a shell company, by which process it is feasible to negate and nullify the law. The decisions of local magistrates and the determination of local authorities to reopen obstructed rights of way are, therefore, hindered at present. We all believe that the current situation is unacceptable.
There are, however, a few clarifications that I should like the Minister to make. First, should the Bill become law, what steps will DEFRA take to ensure that local authorities maintain rights of way and enforce the new powers in the legislation? Secondly, my hon. Friend the Member for Wealden (Charles Hendry) raised in Committee an important question about whether company directors residing abroad would be prosecuted under the new provisions. I understand that the Minister promised to write to members of the Committee on that point and it would be helpful if he could explain to the House the contents of that response.
Thirdly, it would also be informative if we understood how the legislation would apply to companies based offshore—in the Channel Islands, the British Virgin Islands and the Cayman Islands. That is obviously a possible loophole, or trick, that landlords could use.
Fourthly, will the Minister provide details about how DEFRA would publicise the changes under the Bill to ensure that local authorities, landowners and other relevant interest groups had a full and comprehensive understanding of their implications?
I welcome the Minister's commitment to my hon. Friend the Member for North Wiltshire (Mr. Gray) in Committee that if the Bill's provisions reach the statute book they will not be retrospective. Such a move would set an unwelcome precedent for future legislation. A further confirmation from the Minister on the Floor of the House would be most welcome.
1207 Finally, I understand that the Bill does not entail any additional public expenditure or changes to public service manpower. Conservative Members welcome that, and I should be grateful for a further assurance from the Minister that this is the case.
Conservative Members strongly support the Bill. We believe that the laws of the land should be fair, reasonable and effective. It is also important that they are seen to be so by the public. Deliberate obstructions are not only detrimental to rights of way, but are often eyesores and are damaging to the countryside. Law-abiding, decent landowners will welcome the Bill, as it will improve relationships between countryside users and landowners. The countryside is for us all, and we condemn people who deliberately prevent normal members of the public from gaining legitimate access to it. We support the Bill and hope that it will prevent unscrupulous landowners from obstructing historic rights of way.

§ Mr. Roger Williams (Brecon and Radnorshire) (LD)
I wish to place on the record Liberal Democrat Members' support for the Bill. I congratulate the hon. Member for Hastings and Rye (Mr. Foster) on introducing it.
I have had experience of dealing with rights of way legislation, both in local authorities and national parks, and know some of the difficulties involved with historic interpretations of different aspects of rights of way. Any legislation that is introduced to clarify the issues or to close a loophole is very welcome to Liberal Democrats.
I also congratulate ramblers and I congratulate Kate Ashbrook on the work that she has carried out. The sooner the Bill is brought into force, the better it will be for walkers and those who wish to use the countryside as well as for landowners. It will clarify the position. The deliberate obstruction of rights of way does nothing to enhance the reputation of landowners or to promote access to, and enjoyment of, the countryside. We welcome the Bill wholeheartedly.

§ The Minister for Rural Affairs and Local Environmental Quality (Alun Michael)
I am pleased that we have reached the conclusion to our careful consideration of this short, uncontentious but important Bill. I congratulate my hon. Friend the Member for Hastings and Rye (Mr. Foster) on succeeding in getting it to this stage. Many people have their names attached to a private Member's Bill, but it takes more than an accident to bring about sufficient agreement across the Chamber to give that Bill every chance of success. I congratulate him on his efforts.
I am also grateful to the hon. Members for Boston and Skegness (Mr. Simmonds) and for Brecon and Radnorshire (Mr. Williams) for their comments. They raised a couple of issues that I shall deal with briefly, but both have acknowledged that the issue of rights of access is not an easy one. Since I took up this brief, it has become clear to me that the range of complexities that can arise with rights of way and, in particular, with rights of way in relation to common land and those 1208 involved if one strays into Powys are enormous. It is not always easy to deal with what might appear to be a simple problem. However, I believe that this Bill closes a loophole and does so comprehensively.
The Bill's very simple but important aim is to close a loophole that allows the obstruction of a public right of way if a wealthy landowner sets up a shell company deliberately to evade legislation. I stress that we are dealing with deliberate evasion, not accidental oversight.
The Government's policy is to promote an accessible network of public rights of way for the greater use and enjoyment by all. As the foot and mouth outbreak in 2001 proved, this is vital for the rural economy as a whole. The Bill strengthens the provisions that the Government introduced in the Countryside and Rights of Way Act 2000 to deal with obstructions. The aim is to make provision for safe, accessible recreational facilities away from traffic, and the rights of way network must also facilitate initiatives towards walking for health and encouraging people to exercise more. The issue is as important as that.
The Bill seeks to close a loophole whereby an individual may act under the cover of a body corporate in the knowledge that, if the company has no assets, no fines will be payable. In Committee, Members from all three main parties referred to the appalling case in East Sussex associated with Nicholas van Hoogstraten. Local highways authorities are under a duty to assert and protect the rights of the public to use and enjoy those public rights of way for which they are responsible. However, authorities must have the necessary means to ensure that they can be proactive in keeping rights of way free from obstructions. It is wrong that there should be administrative, legal or cost obstructions in the pathway of a highways authority that seeks to carry out its obligations, and I agree with the hon. Member for Boston and Skegness on the importance of that. By removing the obstacle, we take a positive step in that direction.
In the vast majority of cases in which obstructions occur, the obstruction is removed through negotiation. The threat of legal action is usually successful when negotiation fails. However, the case in East Sussex has demonstrated that when that threat needs to be followed through, there is a loophole. Because of the notoriety of the individual associated with this case, the press coverage advertised widely the fact that recalcitrant landowners can defeat the system by misuse of the corporate veil.
Although we believe that the need to prosecute an officer of a company may occur very rarely in practice, we can only speculate on the number of occasions when authorities may have been deterred from prosecuting a body corporate, in the knowledge that enforcement action might prove difficult and, indeed, very expensive. It is therefore important to ensure that when the Bill becomes an Act the provisions are properly communicated to enforcement authorities; the hon. Member for Boston and Skegness made that point strongly. I give him the assurance that I intend to take responsibility for promoting the provisions to local authorities, landowners, users, and others with an interest in rights of way when the Bill becomes an Act, as I sincerely hope that it will before long. I intend to write directly to local authorities, and we shall update current 1209 departmental guidance on rights of way legislation to ensure that these important provisions are clearly understood by those who have to use them.
I underline that the Bill will ensure that when a body corporate commits the offence of wilfully obstructing a highway, or failing to comply with an order to remove an obstruction—and it is proved that the offence was committed with the consent, connivance or neglect of an officer of the body corporate—that officer may also be found guilty of that offence. The provisions of the Bill will apply to offences committed under section 137, which deals with wilful obstruction of a highway, of the Highways Act 1980 and section 137ZA, which deals with the failure to comply with an order to remove an obstruction, after the commencement of the Bill, regardless of whether the order to remove the obstruction made under section 137ZA was made before or after commencement. I should also clarify that local highways authorities are responsible for bringing prosecutions under sections 137 and 137ZA of the 1980 Act.
As the hon. Member for Boston and Skegness pointed out, concerns were expressed in Committee about whether directors of a body corporate resident abroad would be covered by the application of section 314 of the 1980 Act to offences under sections 137 and 137ZA of that Act. I can confirm that that will be the case. When a body corporate commits either of the offences in question and it is proved that the offence was committed with or through the consent, connivance or neglect of a director, that director will be guilty of the offence regardless of where he chooses to reside. Living overseas will not prevent the application of the offence.
The hon. Gentleman clearly anticipated that those with a creative turn of mind would consider our deliberations, and he asked whether placing ownership in an offshore company would be another route to escape. That is not the case. The issue is where the offence is committed, so a magistrates court can deal with any offence—whether it is committed by a British or foreign national—committed within the area of the Bill's jurisdiction, which is England and Wales. That applies to both companies and individuals.

§ Mr. Michael Jabez Foster
Does my right hon. Friend agree that if there were difficulty in prosecuting an overseas company, it would be possible to prosecute the directors who were in this country even if there were no prosecution against the company itself?

§ Alun Michael
That would be the case. I do not think that there is a loophole for the inventive. The case only arose because of the misapplication of company law. That law had a virtuous intention, and I believe that the Bill closes the loophole entirely. It will enable highways authorities to carry out their responsibilities, as has always been the intention of the House and this and previous Governments, and will achieve consistency.
The Bill is modest, with an important purpose. The useful debate in Committee highlighted a number of issues, all of which have been dealt with. I hope that it will be successful in receiving Third Reading and will quickly become law.