COUNTRYSIDE BILL (Hansard, 21 May 1968)

HL Deb 21 May 1968 vol 292 cc603-30 603

§ 3.22 p.m.

§ THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET)
My Lords, I beg to move that this House do resume its consideration on Report of this Bill.

§ Moved accordingly, and, on Question, Motion agreed to.

§ Schedule 3 [Public Rights of Way]:

§ LORD BARNBY moved, at the beginning to insert:

§ "LAW OF PROPERTY ACT 1925 (1925 c. 20)

§ Section 193 (rights of the public over commons and waste lands)

§ It is hereby declared that the right of access of any land specified in this section is a right of access on foot only."

§ The noble Lord said: My Lords, this Amendment is a short one, as you will see, and simple, but it calls for some explanation. It aims to protect foot people without unfairly treating horse riders. It will be obvious to all that of those using commons the overwhelming majority must be foot people, and those riding horses are a relatively small minority. For that reason it would seem that this Amendment would appeal to noble Lords opposite, who conventionally have particular sympathy for what tends to help the less privileged. The Bill on page 11 sets out common land to which the public have the right of access. The word "access" has run continually through the discussion of many clauses of this Bill.

§ I need not remind your Lordships that there are many kinds of commons. There are open commons and there are thickly wooded commons; there are commons that belong to local authorities, to private individuals, to the National Trust, and to bodies holding commons by special Act of Parliament. It is obvious that in woodlands vegetation grows and passages become overgrown and the room available is often small. The Law of Property Act 1925 states that the public shall have right of access on all lands subject to common rights. One can readily understand that in narrow passages in these possibly heavily wooded lands where foot people have the right to walk, do walk, 604 and enjoy walking, they thereby take advantage of the aim of this Bill and its Preamble. If people walking down these narrow passages are suddenly overtaken by somebody riding on horseback—and often riders are galloping and some of them are not very good riders—then bang!, over goes the pram and there is trouble. Because of that, the aim of this Amendment is to protect foot people. Of course, many owners of the soil will do their best to assist the passage of the public, but there are others who will give much less assistance.

§ It is thought by some that the intention of this Amendment is to cause hardship to horse riders. I must, with the indulgence of the House, explain that that would not be my intention. I have been brought up with horses from the age of three; I have ridden all my life. I have indulged in horse exercises and recreations, I have mustered cattle on four continents, and have had the honour of commanding a cavalry regiment. It is not likely, therefore, that I should tend to act against horse riders. I must make that explanation on this Amendment.

§ These commons are quite complicated. Their origin goes back into the mystic antiquity of history. It is a fascinating study. Many years ago I had a modest part, with the late Lord Winterton, in bringing about the Royal Commission on Common Land, and anybody who has taken the trouble to study their Report will find it very illuminating and fascinating. The reason why I bring that point forward is to explain that I have made a deep study of this question, and I feel that I can have confidence in recommending what I now recommend. The Law of Property Act 1925, as I have said, only states that the public have the right of access for air and exercise. What does "access" mean? Does it refer to those on foot, on horse, or on a cycle? There is great confusion. This Amendment seeks to clear that point up and to obtain a definition. There are hundreds of commons in the country comprising over a million acres. This clarification is needed; lack of clarification means bad legislation. The National Parks and Access to the Countryside Act 1949 clearly imposed on local authorities the obligation to produce maps which would show clearly the distinction between footpaths and bridle paths, but the people who drafted that 605 legislation somehow failed to tie the two Acts together; therefore the confusion continues.

§ I contend that in our work yesterday the 1925 Act was breached, and perhaps I should explain what I mean by that. The Parliamentary Secretary has said that he recognises that the Footpaths Association, which protects walkers, of which the noble Lord, Lord Chorley, is the chairman and which is believed to have the greatest knowledge of this question, have a definite view that "access" means only on foot. The Parliamentary Secretary has said that the legal advisers to the Ministry take a different view, presumably, therefore, holding that access is possible to anybody, anywhere, anyhow; and that is what is being contested at this moment. The Footpaths Association have a wide knowledge of this subject and have followed it up with great care, with the result that many letters have appeared in the Press. I have one here, part of which says: People feel at liberty to walk in comfort, and that should have high priority.

§ If this Amendment were passed I am informed that the Act of 1949 would immediately be affected. Section 27 of that Act defines the distinction between a footpath and a bridle path and who should go on which. That is the problem which I am seeking to put to your Lordships to-day. In the course of earlier discussion the Minister urged that it is better to delay legislation on this issue, admitting that there is confusion and there is need for legislation but that it should be delayed until more comprehensive legislation on a larger scale can be brought about. But why delay? If there is confusion, why not carry legislation through now?

§ On February 20 in column 1104 of the Commons Hansard the Minister of State in another place referred to the Gosling Committee. That was the Committee which, because of the complication of this subject, was appointed to sift the facts thoroughly. The Gosling Committee reported, and in paragraph 75 say: We do not think that horses should be ridden on footpaths. They can turn a footpath into a quagmire and they may be a hazard to walkers. In Recommendations 15 and 18 of their Report the Gosling Committee made their views clear: that the highway authorities should be given powers to 606 deal effectively with anyone unlawfully riding a horse on a public footpath which is not a bridleway. The Minister of State in another place said We are minded, subject to consultation with authorities, to accept the recommendations …"—[OFFICIAL REPORT, Commons Standing Committee, 20/2/68; col. 1104.]

§ In those few words I have put to the House the reason why I urge strongly that this Amendment should be accepted. This is a non-partisan Bill which has been accepted by both sides of the House. It is a Bill which has already consumed a great deal of time; indeed, I believe in another place it consumed more time than any Bill in history. It covers a lot of difficult ground. It has been skilfully piloted through this House by the Parliamentary Secretary, with great thoroughness and great tact. But, alas!, this fine Bill retains a blemish. It is for that reason that I hope the Parliamentary Secretary can now improve this Bill about which he has shown such knowledge. Therefore I commend this Amendment to your Lordships. I beg to move.

§ Amendment moved— Page 49, line 15, at end insert the said words.—(Lord Barnby.)

LORD LEATH ERLAND
My Lords, I expect the noble Lord, Lord Barnby, made a pretty shrewd guess when he said that Members on this side of the House were more likely to be in favour of pedestrians than of horses. That being so, I suppose it makes me a kind of "odd man out", because for many seasons I was a regular rider to foxhounds and some of the happiest days of my life were spent in the saddle. I greatly regret that the noble Lord, Lord Barnby, is introducing an Amendment which will have the effect of curbing the activities of people who want to have their recreation on the back of a horse in the open air. I am not so much concerned with adult riders as with those thousands of young people who are now forming the backbone of our pony clubs throughout the country. They are enthusiastic in following their sport, and they find with every passing day, with the building of new roads, the construction of new housing estates, and the increasing numbers of vehicles—and especially very heavy vehicles—on the roads, the opportunities to follow their particular recreation ire are rapidly diminishing.

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§ LORD BARNBY
My Lords, if the noble Lord will allow me to say so, I said nothing which suggested any interference with horse riding on the properly recognised bridlepaths, which are quite numerous; and any owner of the common, as the owner of the soil, has the privilege of giving permission to as many as he likes.

§ LORD LEATHERLAND
Quite so, my Lords, but the whole object of this Amendment is to curb the facilities for horse riding, and I am sorry that that is going to happen.

§ LORD BARNBY
My Lords, that is not so.

LORD LEATHER LAND
Moreover, if the object is to curb horse riding—

§ LORD BARNBY
No, my Lords.

§ LORD LEATHERLAND
My Lords, I thought the noble Lord started his speech by suggesting that there would be some restrictions on horse riding?—

§ LORD BARNBY
If the noble Lord will allow me to say so, I started by referring to protection for pedestrians.

§ LORD LEATHERLAND
If the noble Lord feels that he wants to curb horse riding I hardly feel that this Amendment is the right way to do it, because it says that this section is to apply to land where there is right of access on foot only. As a matter of technical drafting, if one is riding on a horse and the horse is galloping on its feet, is not that access on foot only? I am quite sure that if the Amendment were passed in this form some able court advocate—Lord Foot, for instance—would be able to ride through it. I think this Amendment requires great consideration before it is accepted.

LORD HENLEY
My Lords, I am less concerned with either the footmen on this side or the cavaliers on that. What I am interested in is trying to get some order eventually into legislation about commons. The difficulty in trying to put through an Amendment like this, whether it is a good one or a bad one, is that it is taking one single issue out of the fearful muddle commons have got into. For some curious reason, when the Law of Property Act was devised in 1925 a great deal of the machinery which enabled commons to work properly, such 608 things as stints for cattle, and what access means, were forgotten. We have been left with frightful muddle, and the result is that our commons all over the country are in a state of deplorable confusion. Work is being done. It will take some time to get it into shape for legislation, but in the meantime one cannot take one single issue of definition from the Law of Property Act and attempt to put it right in this Bill. It would not help the noble Lord, Lord Barnby, who wants to get some order into this matter. Nor would it help the noble Lord, Lord Leatherland, who wants to see more horsemen. I think on the whole the Amendment is really better left alone.

§ LORD SOMERS
My Lords, I should like to support this Amendment. Before I say anything else, may I say that sympathise entirely with what the noble Lord, Lord Leatherland, said about the desirability of encouraging riding, especially among young people.

§ LORD BARNBY
Hear, hear!

§ LORD SOMERS
On the other hand, anybody who has lived in the country must realise that many footpaths are extremely narrow and in some places there may not be room for both horse and pedestrian. It is possible, as your Lordships know, for a horse to get out of control, and in that case there might be circumstances of danger for the pedestrian. To country lovers walking is just as much a pastime as riding; therefore I think my noble friend's Amendment is an extremely good one. Bridlepaths, after all, are not scarce throughout the country. Therefore I hope the House will support this Amendment.

§ 3.44 p.m.

§ LORD KENNET
My Lords, the noble Lord, Lord Barnby, put down the same Amendment on Committee stage and gave his reasons for desiring this; and I gave the Government's reasons for thinking it would not be a good idea. Since then he has been kind enough to come and see me and he gave me his reasons again; and once again I gave him the Government's reasons for thinking it would not be a good idea. We now have the same Amendment and the noble Lord has introduced it with the same reasons as before. I think I should briefly repeat, for the second time in this House and 609 for the third time to the noble Lord, the Government's reasons.
Some of the discussion on this Amendment appears to have been on the assumption that we are talking about footpaths, but the effect of the Amendment would be to keep horses off commons—all parts of certain commons; that is, the open green bits as well as the footpaths. It would simply put an end to riding on Section 193 commons. The present law is that the general public have a right to go there; they have a right of access for the enjoyment of the open air. I am advised, and I advise the House, that this right includes the right to ride on Section 193 commons. The noble Lord therefore proposes to take away the right to ride on commons. I am not contending that the right to go on horseback on Section 193 commons ought always to be exercised, that it is always expedient that it should be. In those cases where it is not there is already provision in the law for the soil owner of the common to apply to the Minister for a scheme regulating where horses may go and where horses may not go.
The noble Lord, Lord Barnby, mentioned his interest at Committee stage. His interest is before the House. I understand he is the soil owner of Ashtead Common in the urban district of Leatherhead to which the public have an automatic right of access for air and exercise by virtue of Section 193 of the 1925 Act, and he has applied to the Minister for an order under that section to limit the activities of the public, the main purpose being to restrict riding to certain parts of the common. My right honourable friend has announced his intention before determining this application to hold a public inquiry, which will be next month. Nearly 1,000 persons have petitioned against the restriction on riding in the case of Ashtead Common. There you have an example of the present law in operation, and I would submit to your Lordships that the occasion to change the Law of Property Act of 1925 is not this one but on a major revision of the commons law in the future.

§ LORD BROOKE OF CUMNOR
My Lords, I think the majority of your Lordships will probably feel a good deal of sympathy with my noble friend Lord Barnby in his desire to see an ambiguity 610 in the law clarified and settled by Parliament. It is natural for him to feel particularly strongly about this because, as he disclosed in Committee, he has a personal interest, and it must be aggravating for him that conflicting legal advice is given as to the meaning of the present law. I understand that he has received legal advice that in fact the right of access means a right of access to commons for foot passengers only. The noble Lord, Lord Kennet has just told the House, and he told the Committee previously, that the legal advice available to the Government is that there is no such limitation on the right of access and that the right of access to these commons extends to people on horseback as well as on foot. Almost all of us, I believe, agree that as soon as possible this matter should be settled one way or the other.
We must feel some sympathy with the Government, and with what was said by the noble Lord, Lord Henley, that the appropriate place for settling this question would be in the context of major commons legislation, which I, for my part, dearly hope will come soon. If any noble Lord has his interest in commons aroused by this debate, I, too, would recommend him to read the report of the Royal Commission on Common Land, which is one of the most attractively written documents published by the Stationery Office for years. The fact that we have legislation on common land in the offing, though it may well be a long way off, would not to me be a final argument against accepting this Amendment. What does deter me from supporting it is that it seems to me that on a matter not only of doubtful law but of questioned merit, if I may put it that way, the rights, or the believed rights, of large numbers of people would be removed by Act of Parliament without any further inquiry.
It seems to me that, where you have a case in which large numbers of people may have their rights curtailed if a new interpretation is put upon the law, or if the law is altered as this Amendment would seek to alter it, there should he thorough inquiry before that is done. I believe in the system of public inquiry; I believe still more in the system of thorough examination where all concerned can put their points of view. The 611 riders, whether they wish to ride on Ashtead Common or on an other common, have not had an opportunity to put their point of view before your Lordships and yet, if this Amendment were written into the Bill, the rights for which they are contending and which they claim that they have under the existing law, would be swept away.
With the greatest respect to my noble friend, I do not think that this would be a satisfactory way to clear up the matter. I do not think it would be wholly fair and just. If they do not accept this Amendment I hope that the Government will settle the matter as quickly as possible in some other way. But let us settle it after thorough investigation where all the interests concerned can have full opportunity to have their say, rather than, as it were, by a side-wind in an Amendment to this Countryside Bill.

§ 3.52 p.m.

§ LORD BARNBY
My Lords, I am greatly obliged to my noble friend who is leading the Opposition in this matter for his balanced and sagacious assessment of the position. In the course of the discussions on the Bill this question has arisen in many ways, and yesterday I suggested that in agreeing to the passage of cycles over commons—or, anyway, the passage of cycles on bridle paths only, but not on footpaths—the principle of the 1925 Act was breached, the Act which the Parliamentary Secretary has just said gives the right of passage. Here I am in some difficulty, because I am told that legally there is a great distinction between access and passage. Anyway it gives right of passage access—because I do not see how you can have passage unless you have access—over commons. That infringes the fact that up to now it has been argued, or the noble Lord has just said, that the 1925 Act permits passage anywhere, anyhow, in any way.
I have put down this Amendment again on Report, because the situation has quite changed from what it was when we were in Committee by reason of what has taken place in the earlier part of this Report stage. I must occupy the time of the House to say that when 612 I intervened yesterday in regard to this matter and asked whether commons were specially excluded from this clause, the noble Lord replied in regard to the rights of cyclists on footpaths and bridle paths in all parts of the country. I then asked: Surely 'all parts of the country' must include commons?"—[OFFICIAL REPORT, col. 575.] and I received no reply. I had hoped that the noble Lord would deal with that point to-day. But I must not take up the time of the House.
I regret that the Parliamentary Secretary saw fit to introduce a personal angle into this discussion. I had certainly declared my interest, and I should prefer him not to have taken the course of insinuating that it was because of that interest that I was pressing this Amendment. But he has insinuated that it is that personal interest which causes me to put down this Amendment, which, as my noble friend Lord Brooke has just said, will affect all commons, comprising in all over 1 million acres in this country. The Parliamentary Secretary said: in these cases let there be applications for special definition. He brought up my own particular case. I am bound to refer to it, to indicate that so far as anything to do with rights of access to large parts of the common are concerned, regardless of whether they are bridle paths or footpaths, that has been agreed to.
Nobody has denied that confusion exists. It is because this question will have to be cleared up at some time, and legislation will have to be introduced, that I had sincerely hoped that the Parliamentary Secretary would have been able to see his way now, not later, to agree to this Amendment which, quite contrary to what the noble Lord, Lord Leatherland, said, is aimed at protecting people on foot who can be over-ridden by horses on footpaths. Because confusion exists, I feel that I must test the opinion of the House.

§ 3.58 p.m.

§ On Question, whether the said Amendment (No. 36) shall be agreed to?

613

§ Their Lordships divided: Contents, 15; Not-Contents, 94.

CONTENTS
Aberdeen and Temair, M.	Falkland, V.	Kinloss, Ly.
Ailwyn, L.	Greenway, L.	Mar, E.
Albemarle, E.	Gridley, L.	Milverton, L.
Barnby, L. [Teller.]	Hylton-Foster, Bs.	Sackville, L.
Berkeley, Bs.	Ilford, L.	Somers, L. [Teller.]

NOT-CONTENTS
Airedale, L.	Grenfell, L.	Portsmouth, L. Bp.
Amherst, E.	Hayter, L.	Raglan, L.
Ampthill, L.	Henley, L.	Rankeillour, L.
Archibald, L.	Heycock, L.	Rathcavan, L.
Arwyn, L.	Hilton of Upton, L.	Redesdale, L.
Ashbourne, L.	Howard of Glossop, L.	Ritchie-Calder, L.
Asquith of Yarnbury, Bs.	Iddesleigh, E.	Robertson of Oakridge, L.
Beaumont of Whitley, L.	Kennet, L.	Rowley, L.
Beswick, L.	Kilbracken, L.	Royle, L.
Blyton, L.	Latham, L.	St. Davids, V.
Bowles, L. [Teller.]	Leatherland, L.	St. Helens, L.
Brockway, L.	Llewelyn-Davies of Hastoe, Bs.	Samuel, V.
Buckinghamshire, E.	Long, V.	Serota, Bs.
Burden, L.	Longford, E.	Shackleton, L.
Cawley, L.	Lucas of Chilworth, L.	Soper, L.
Citrine, L.	MacAndrew, L.	Sorensen, L.
Clwyd, L.	MacLeavy, L.	Southwark, L. Bp.
Cottesloe, L.	Maelor, L.	Strabolgi, L.
Craigavon, V.	Mais, L.	Strang, L.
Cromartie, E.	Mancroft, L.	Strange, L.
Crook, L.	Mitchison, L.	Summerskill, Bs.
Douglas of Barloch, L.	Molson, L.	Swaythling, L.
Ebbisham, L.	Monck, L.	Swinton, E.
Elliot of Harwood, Bs.	Moyle, L.	Taylor of Mansfield, L.
Emmet of Amberley, Bs.	Moyne, L.	Wade, L.
Faringdon, L.	Noel-Buxton, L.	Walston, L.
Fleck, L.	Ogmore, L.	Wells-Pestell, L.
Foot, L.	Pargiter, L.	Williamson, L.
Fortescue, E.	Phillips, Bs. [Teller.]	Winterbottom, L.
Gardiner, L. (L. Chancellor.)	Plummer, Bs.	Younger of Leckie, V.
Gifford, L.

§ Resolved in the negative, and Amendment disagreed to accordingly.

§ 4.8 p.m.

§ LORD MOLSON
had given Notice of his intention to move to add to the Amendments of the 1949 Act: Section 37 (powers of Minister to expedite survey). The power of the Minister in section 37 to expedite the preparation of maps and statements shall include the power to direct a surveying authority to prepare a revised map and statement in draft form where the period referred to in section 33(3) has expired and where, after consultation with the surveying authority, it seems to the Minister that by reason of changes since the relevant date the definitive map, or the last preceding map prepared in definitive form, as the case may be, is no longer a reasonably accurate record of public rights of way in the area of the authority. The noble Lord said: My Lords, this is an Amendment which my noble friend Lord Chorley and I put down. I see the noble Lord, Lord Rowley, in his place. I should like to explain to him, as I 614 should to the noble Lord, Lord Rhodes, if he were here, that it was necessary for Lord Chorley and myself to put down exactly the same Amendment on Report stage as we put down on Committee stage because, despite the fact that we hoped that the Government would deal with this matter by an Amendment on the Report stage, it is only since I came to this House this afternoon that I have had the opportunity of reading Amendment No. 43B which has appeared on the Paper only to-day.
I am most anxious to save the time of your Lordships, and as it appears to me, from the best perusal that I have been able to make of the Government's Amendment, No. 43B, that it covers the points in my Amendment No. 37, I will not move my Amendment, but I shall listen to the explanation which the Parliamentary Secretary will no doubt give of the Government Amendment when we reach it.

615

§ LORD KENNET moved, to leave out the proposed Amendment of the Acquisition of Land (Authorisation Procedure) Act 1946, and to insert instead: 1. Section 3(1) shall have effect with the substitution for references to the Minister of references to the acquiring authority. 2. In the case of an order under section 3(1) extinguishing a right of way (but not an order reviving a right of way)—

(a) the order shall not take effect unless confirmed by the Minister, as defined in this Act, or unless confirmed, as an unopposed order, by the acquiring authority.
(b) the Minister shall not confirm the order unless satisfied as to the matters set out in section 3(1),
(c) the time specified in the order as the time from which the right of way is extinguished shall not be earlier than confirmation of the order.
(d) Schedule 7 to the Highways Act 1959, as amended below, shall have effect as to the making, confirmation, validity and date of operation of the order.

but paragraphs (a), (b) and (c) above shall not apply where the acquiring authority is the Minister. 3. These amendments of section 3 of the Act of 1946 shall not affect that section as applied by section 15 of the Opencast Coal Act 1958 (suspension of rights of way). 4. These amendments of the said section 3 shall not apply in relation to an order if made before the date of the coming into force of this Act, or if a notice relating to the order was published pursuant to subsection (2) of the said section 3 before that date.

§ The noble Lord said: My Lords, Amendments No. 38 and No. 39, and the consequential Amendment No. 44, have the effect of removing the need for local authorities and other acquiring authorities to submit certain public path orders to the Minister for making or for confirmation when there is no opposition to those orders. The effect is simply that if the local authority makes an order, advertises it, waits for the due period and nobody is against it, the local authority itself can confirm the order and it is then made, rather than going through all the hoops of sending it up to the Minister, whose jurisdiction in this is in common sense simply to see that objections are fairly considered. If the House wishes any further explanation of the detailed way in which this is achieved I shall of course give it, but I hope that a general statement of purpose will suffice. I beg to move.

§ Amendment moved— Page 50, leave out lines 20 to 24 and insert the said new paragraphs.—(Lord Kennet.)

616

§ LORD BROOKE OF CUMNOR
My Lords, I am grateful to the noble Lord, Lord Kennet, for that brief explanation and for having assured your Lordships that the only thing which this Amendment and the next one do is enable the local authority to carry through certain processes when there is no objection to an order, or when all objections have been withdrawn, instead of the matter having to go to the Minister. I had studied these rather complicated Amendments as best I could, but I was unable to make absolutely sure whether in any respect they went beyond that simple purpose. I am very ready to accept the noble Lord's assurance that they achieve that purpose and nothing else, and that being so I certainly recommend your Lordships to assent to both Amendments.

§ LORD KENNET
My Lords, with the leave of the House, in order for us to be perfectly certain that we are all together, may I say that it enables local authorities and other acquiring authorities.

§ On Question, Amendment agreed to.

§ LORD KENNET
My Lords, this Amendment is consequential. I beg to move.

§ Amendment moved— Page 51, line 32, at end insert—

§ ("Schedule 7 (Orders for creation, extinguishment or diversion of public paths)

§ 1. Paragraph 2 of the Schedule shall have effect as respects any order not made by the Minister, as defined in this Act, subject as follows.

§ 2. If no representations or objections are duly made, or if any so made are withdrawn, the authority by whom the order was made may, instead of submitting the order to the Minister, themselves confirm the order (but without any modification).

§ 3. The authority shall not confirm a public path extinguishment order or a public path diversion order unless satisfied on all the matters on which the Minister must, under section 110(2), or as the case may be section 111 (5), of the Act be satisfied when it is the Minister who is confirming the order.

§ 4. The words "or confirmed as an unopposed order" shall be inserted—

(a) in section 28(1), section 110(1) and section 111(1) of the Act of 1959 after the words "and submitted to and confirmed by the Minister of Housing and Local Government",
(b) in paragraph 1(1) of Schedule 7 to the Act of 1959 after "Government for confirmation", and
(c) in paragraph 4 of the said Schedule 7 after "confirmed or made by the Minister of Housing and Local Government", 617 and in paragraph (a) of the said paragraph 1(1) after "confirmation" insert "or to be confirmed as an unopposed order".

§ 5. Section 286(2) of the Act of 1959 (variation or revocation of orders) shall apply to a public path creation order, a public path extinguishment order, or a public path diversion order confirmed as an unopposed order as it applies to such an order confirmed by the Minister, but so that an order confirmed in either way may be revoked or varied by a subsequent order confirmed in the other way.

§ 6. In paragraph 3(1) of the said Schedule 7 (regulations about procedure) the word "making" shall be inserted before "submission and confirmation".

§ 7. These amendments of the Act of 1959 shall not affect an order made before the coming into force of this Act.")—(Lord Kennet.)

§ On Question, Amendment agreed to.

§ 4.15 p.m.

§ LORD RAGLAN
moved to leave out paragraphs 1 to 7 of Part II. [Revision of Maps and Statements]. The noble Lord said: My Lords, this Amendment is tabled really to raise certain points covered in this Part of the Schedule. I have no objection at all to the procedure which is laid out in paragraphs 2 and 3; in fact, I think it is rather good. It shortens the procedure, but that does not make it any less good. I have one question to ask my noble friend. Paragraph 3 states: The review shall include the preparation of a revised map and statement in draft. If I may direct my noble friend's attention to paragraph 6 across the page, that refers to a revised map and statement, if any". I am wondering whether it would not be better drafting and more explicit if paragraph 3 said: a revised map in draft and statement in draft, if any". I do not expect him to answer me at the moment, but I put it to him for his perusal.
My main objection to this Part of the Schedule is that it does not make any mention of any appeal to a court of law. It puts an administrative procedure in the place of what is at present a judicial one. That, to my mind, and to the minds of many people, is not a good thing to do in principle. It may be convenient, but it is not a good thing. The decision of the Minister is binding on the owner of the land and on the public who will use the path, and that there is no provision in the Schedule for them to object in a court 618 of law seems to me an omission. It has crossed my mind that it might happen, when a dispute over a path has gone to the Minister, that a party in the dispute could go to a court of law to try to obtain an injunction, and I wondered what would be the Minister's position then. Presumably he would not be able to adjudicate if the matter were sub judice. Again, what will the Minister do if an injunction is obtained? Perhaps the procedure in this Part of the Schedule will not work as smoothly as is suggested. As I said yesterday, the use of footpaths is a highly emotive and contentious matter. One may depend upon some parties trying to close them or trying to create them by whatever means they can, and it is quite possible that matters will get impeded.
I shall end as I began, by pointing out to your Lordships that the purpose of this Part of the Schedule is to substitute an administrative procedure for what is at present by Statute a judicial one, and that point should not go unnoticed. Finally, can my noble friend tell me whether the Minister will deal with objections personally? If not, to whom is it intended he will delegate his power? I beg to move.

§ Amendment moved— Page 52, line 3, leave out paragraphs 1 to 7. —(Lord Raglan.)

§ LORD BROOKE OF CUMNOR
My Lords, I think it would be to the convenience of the House if the noble Lord, Lord Kennet, when he comes to reply, would give a summary of the general effect of these paragraphs without going into every ultimate detail. I am anxious to know the answers to some questions akin to those which have been asked by the noble Lord, Lord Raglan.
Let me say at the outset that I am all in favour of simplification and speeding up these procedures, if that can be effected by changes which will still ensure that justice is done to all concerned. I, for my part, hope that we shall get a much more rational system of rights of way as a result; that rights of way, where they are of value, will be clearly established and made known to everybody; and that, as a corollary, ancient rights of way which appear to have no practical value nowadays because of social or other changes may, by a satisfactory procedure, be extinguished. But I confess that with 619 this translation of a judicial to an administrative process I am not at all clear what protection there is going to be for either the owner of the land or, let us say, the farmer who disputes the legal existence of a right of way, or who sincerely believes that the authority has made a mistake over the positioning of the right of way which it seeks to establish in a map or has been misinformed about any conditions which attach to the right of way. Up till now, it has been possible to argue those matters before the magistrates, and that is a judicial protection which seemed satisfactory to all those seeking to establish what was really a matter of law: whether a right of access existed or not.
I am familiar with the differences of procedure as between ministerial inquiries and proceedings in a court of law, and I think they both have their place. But I am not at all clear what will happen if the owner or the farmer maintains that there is in fact no right of way over a particular field and is denied the opportunity to go and get that settled in the courts. I find it difficult to see how a matter of law like that can be settled by administrative procedure. It may be that I have not understood all that is in the Government's mind, but that is the reason why I think it would be extremely helpful if the noble Lord, Lord Kennet, in addition to answering these questions, could give your Lordships a summary of the effect of these paragraphs.

LORD HENLEY
My Lords, I am not quite sure whether this is the right moment to raise it, but there is another question which I asked the noble Lord (admittedly it was at five minutes before midnight) during the Committee stage last week and which he did not answer. I think it arises again out of the points raised by the noble Lord, Lord Brooke of Cumnor. There was an undertaking (or I think it was an undertaking) given in another place that the administration of public rights of way would be moved over to planning authorities. The noble Lord did not answer the point, but I think it arises on this Amendment. I do not imagine for one moment that the noble Lord will accept this Amendment—or, indeed, that the noble Lord, Lord Raglan, will press 620 it—but it is part and parcel of this question about what used to be called the rationalisation of foothpaths, although "rationalisation" is now a "dirty" word, so far as footpaths are concerned. But there will come a time when, in order to get good, long cross-country routes, one may wish to do a deal and pet rid of a lot of little criss-crossing of individual fields, which is now totally unnecesary and really meaningless. This ties up with the noble Lord's Amendment, and I wonder whether the Government have any comment to make on it.

§ LORD KENNET
I wonder whether the noble Lord could help me. What does he mean by the administration of public rights of way?

LORD HENLEY
At the moment, the public rights of way come under the Minister. It seems to me that it would be a very much better arrangement if they came directly under planning authorities.

§ LORD KENNET
My Lords, I will do my best to answer that point at the appropriate moment in my reply. Before we come to the effect of this, let me remind the House that we are here talking about the revision of maps and statements; we are not talking about the making of the definitive map or statement in the first place. They are all there, or are virtually all there. What we are talking about now is simply what happens when there is reason to think that the existing definitive map is out-of-date, that there is something wrong on it and that it ought to be revised.
Some of your Lordships' questions have centred around the question: what is a landowner to do if the local authority thinks there is a right of way and the landowner thinks there is not? This situation is not parallel with what it would have been in the first place under the original provisions for the definitive map, when there was no map, or when there was no map worthy of the name, and together the local authority and the landowner were faced with the problem of making a map which would tell the truth about the existing law. There will have been a map in existence for many years. If the local authority thinks that it was wrong to omit a footpath from the original map, that there was a footpath there and it should be put in, then 621 it seems common sense that it is unlikely to press that unless it is very sure of its grounds, and it seems to me unlikely that a landlord would be in a position of being likely to be overruled by something which had not occurred to everybody concerned twenty years before, when the first definitive map was being made out.
To come to the actual effect of this proceeding, under the existing law there is a three-stage procedure. Maps and statements have to be prepared first in draft, then in provisional form and, finally, in definitive form. At each of the first two of these stages there is a period for objection and for counter-objection to the surveying authority, there is provision for an appeal to the Minister and there is provision for an application to quarter sessions. Some of your Lordships have been complaining that progress on this front has not been fast enough, and I submit that the reason is very clear from that account of the present law. The new proposal would have the effect that the draft map and statement will simply be published—and we are talking here always, I would remind your Lordships once again, about the revision of maps and statements, never about the first one—and then there will be a 28-day period for objection and appeal to the Minister. Representations and objections will be heard by a person appointed by the Minister—and this comes to the point made by the noble Lord, Lord Raglan—the Minister will then determine them, and the map and statement in definitive form will be prepared from the draft map as amended by the Minister's decision or decisions.
Now who is the person appointed by the Minister? I should like to tell Lord Raglan that this has been happening all the time. It is also analogous to what happens in planning law. The Ministry's inspectors hear most appeals in planning law. Sometimes there are other persons appointed by the Minister, but in statutory terms these persons are simply persons appointed by the Minister. The Minister takes good care to appoint experienced, just-minded persons. After the hearing by the person appointed, the decision is taken in legal form by the Minister; and, of course, there is no difference in law between a decision 622 taken personally by the Minister and a decision taken by a civil servant in his Ministry to whom he has delegated the authority to take decisions in such-and-such a case. That is how that will work.
The noble Lord asked what would happen if any of the parties applied for an injunction and got it at any point in the proceedings. I can only say that this can happen in any field of human endeavour. One can apply for an injunction, and sometimes one gets it, sometimes not. If one gets it, the party against whom it is given will have to consider his future course: either he will abide by it and not do what he proposed to do, or else he will have recourse to a higher court and try to get the injunction upset. This will of course apply in this field [...]ust as it does in any other.

§ LORD RAGLAN
My Lords, is the noble Lord going to say anything about the Minister's decision being substituted for a judicial one, or does he consider that he has answered that point?

§ LORD KENNET
I considered that I had answered it. It was so terribly cumbrous before that the Government propose to simplify it in the interests of progress, and part of this simplification is the elimination of the cumbrous appeal to quarter sessions in what are, after all, numerous and usually not very complicated questions.
Turning now to the point raised by the noble Lord, Lord Henley, about transferring responsibility for rights of way to planning authorities, I mistook the noble Lord at first. I think he said, "From the Minister to the planning authority"; but, of course, the Minister is not responsible for the rights of way. It is the highway authority who is responsible at the moment. Perhaps the noble Lord's point was that the responsibility should be transferred from the highways committee to the planning committee of a given authority. I am sorry I am not familiar with what, as the noble Lord tells me, was said about this matter in another place, and I have not had time to look it up. I am also sorry that I did not follow it up after his remarks at midnight, but I will do so if he wishes. Or, alternatively, and I think preferably, we could wait until the Town and Country Planning Bill, which will be before your 623 Lordships shortly, which will have something to say about this.

§ LORD RAGLAN
My Lords, I thank my noble friend for his explanations, and I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ 4.30 p.m.

§ LORD MOLSON
moved, in paragraph (3), after "authority" to insert "and to any other person interested". The noble Lord said: My Lords, I think it would be convenient to discuss Amendments Nos. 41, 42 and 43 together. They deal with a matter raised by my noble friend Lord Chorley on the Committee stage. The purpose is to ensure that in the case of a dispute about a right of way there should be the same treatment accorded to each side in the dispute. If when a local authority is preparing a map and publishes it, it omits what a local amenity society believes to be a public footpath and the society then makes representation to the Minister, then, if the Minister decides that the society's representation is justified, he must give notice to any person who is adversely affected. That is fair enough and it means that the landowner concerned is warned. There is then a further inquiry in which each party to the dispute is fully informed of what has happened.
If, however, the reverse arises, the position is not at the present time satisfactory. If the authority publishes a map including a path to which a landowner objects and the Minister decides that the landowner is justified, the question arises as to who are the persons adversely affected who must be notified. It has been the case that only the local authority has been notified. Unless there is provision for advertisement, members of the public and local voluntary bodies interested in these matters will not only have no standing but will have no knowledge of what has happened. A path which they had believed to have been safely put upon the map has been challenged by the landowner and the challenge in the first stage is allowed by the Minister. There then has to be an inquiry; and it is only fair and reasonable, in my submission, that all those adversely affected should have had warning of the Minister's preliminary decision that no right of way existed in this particular case.
624 When the Amendment was moved by my noble friend in Committee stage the Parliamentary Secretary invited him to discuss the matter with him, as he thought it might be possible that the Government would put down something to the same effect on Report. I do not claim that was a promise; but, at any rate, this morning there was nothing down on the Marshalled List. Despite the remarks of the noble Lord, Lord Rhodes, on the undesirability of putting down the same Amendment on Report stage, it is necessary to do so in the event that the Government do not put anything on the Order Paper in good time. I am still not without great hope that, in view of the sympathetic attitude of the Parliamentary Secretary to this matter, the Government may be prepared to meet us. I have now restated what is our case, which I think is a reasonable one: that reasonable notice should be given where on the preliminary view of the Minister a right of way which had been put on the map is in the first instance disallowed by the Minister. I beg to move.

§ Amendment moved— Page 52, line 41, after ("authority") insert ("and to any other person interested")— (Lord Molson.)

§ LORD KENNET
My Lords, I wish to confirm what the noble Lord has said. My noble friend Lord Chorley and I met. I would confirm also that the Government have a great deal of sympathy with the principle of these Amendments, but, as usual, when we came to reducing the matter to draftsman's language we found it more difficult than we thought and there were unexpected ramifications. I am afraid it has not yet been done; but it will be done and I would inform the House that on Third Reading—which will not be before Thursday of next week—I shall be putting down an Amendment to Schedule 3 which will cover the same ground as Amendments Nos. 41, 42 and 43, and which I hope and believe—certainly, I hope—will meet with the satisfaction of the noble Lords, Lord Molson and Lord Chorley.

§ LORD BROOKE OF CUMNOR
My Lords, I should like to express appreciation to the noble Lord for what he has just said. I should not like to be thought to be looking a gift horse in the mouth; but it would be of great convenience if 625 these further Amendments could be put down in sufficient time for us to be able to examine them and their implications before we have to take them on Third Reading.

§ LORD CHORLEY
My Lords, naturally, in the light of that assurance, we shall be only too glad to withdraw this Amendment; but I should like to take the opportunity to thank the Minister for the very courteous and patient way he received me last week and for the ample discussion we had about this complicated point.

§ Amendment, by leave, withdrawn.

§ 4.37 p.m.

§ LORD KENNET
moved, in Part II, to leave out paragraph 5. The noble Lord said: My Lords, we come now to the contentious batch of Amendments which made such an unfortunately late appearance. This is the Roads Used as Public Paths Amendment which has been awaited for such a long time. I should like to remind your Lordships that although its late appearance is a matter for regret—and I think that all sides are agreed in regretting this—it was not unexpected, because in the House of Commons Standing Committee "A" on February 20 the Parliamentary Secretary foreshadowed provisions based on the Gosling Report in this matter. He said: I do not think I can honestly say that such an Amendment or addition could be ready by the Report stage. He was referring to the Report stage in the House of Commons. So it was already clear that any Amendment would come in this House.
Then on April 9, in the House of Commons, he said: I indicated in Committee what we proposed,"— namely, that an Amendment would be tabled— although we have not been able to include it on Report, because it requires further drafting."—[OFFICIAL REPORT, Commons, col. 1247.] And in this House, on the Committee stage of the Bill, I said: The Government intend to introduce provisions requiring the surveying authorities, which are generally county councils, to survey their roads used as public paths …"— [OFFICIAL REPORT, 9/5/68, col. 1649.] Although the Amendment is late—and nobody regrets that more than I—its 626 appearance is by no means unheralded, and its content is in accord with what was said twice in the House of Commons and once here.
Amendments Nos. 43A and 43B give effect to the Gosling Committee recommendation that the definition "roads used as public paths" in the National Parks and Access to the Countryside Act 1949 should be abandoned and that, in the words of the Gosling Report: These roads should be surveyed by the responsible authorities who should decide in each case whether the road should be designated as an unclassified road, a bridleway or a footpath. The promise in the other place included a statement that there would be provision for public advertisement on these proposals and for an objection period, and for a public local inquiry by the Minister, if necessary, in order that they should be in line with the rest of the Bill now before your Lordships.
In spite of the great length of Amendment No. 43B, its effect is not unduly complicated. It is to require surveying authorities to carry out an expedited special review (and I shall come in a moment to the meaning of the word "expedited") of the definitive map, on the lines of the revised review procedure —that means the procedure for the revision of the map as revised in this Bill —within three years of the date of the commencement of this Bill when it becomes an Act. The authorities will also have the additional duty of surveying roads used as public paths to establish what public vehicular rights exist over them. Each of these roads will then be classified either as a highway open to all traffic, as a bridleway closed to vehicular traffic, or as a footpath, and they will be shown as such on the revised definitive map.
The objection period for the special review will not be less than four months, and if objections are made and not withdrawn the Minister is required to hold a public local inquiry in the usual manner. There is provision for a limited special review for the consideration of roads used as public paths only when an authority has recently completed a survey or a review of the existing definitive map, whether the first or the revised one. But when the survey was completed longer ago than recently, the surveying 627 authority must re-survey the lot; and the Minister has power to expedite it if they do not. During the course of that survey they will, among other things, redesignate roads used as public paths in any of the three ways that I have mentioned. This meets the point raised by the noble Lords, Lord Chorley and Lord Molson, about giving the Minister power to expedite the revision review.
On the other hand, as I have said, where the surveying authority has only recently either published its definitive map or a revision of it, it need not re-revise the whole lot. It need revise only the roads used as public paths on it for the limited and single purpose of re-designating them among the three categories I have already mentioned. I repeat, the Minister has power to make directions to expedite the special review if it appears that any stage has been or is likely to be unduly delayed. All the surveying authorities will be required to carry out the special review, though of course some of them will be doing it in the context of their general review. These provisions automatically expedite reviews in any area where the review of the definitive map is already due.
My Lords, I hope that I have given a reasonably comprehensible account of what is a horribly complicated position, and that the noble Lords, Lord Chorley and Lord Molson, will agree with me that this meets their point about expediting the revision procedure. I beg to move.

§ Amendment moved— Page 53, line 7, leave out paragraph 5.— (Lord Kennet.)

§ 4.42 p.m.

§ LORD BROOKE OF CUMNOR
My Lords, I feel sure that the noble Lord, Lord Kennet, will appreciate the difficulty under which the House is labouring when giving detailed consideration at such short notice to Amendments which are as late as these two. They were available in the Printed Paper Office less than two-and-a-half hours ago, and it has been impossible for those of us who are working hard on this Bill to take in all that is involved in them. Let me add that I, for one, am in no way criticising the noble Lord, Lord Kennet, over this matter. He has conducted this 628 Bill with great care and with great courtesy. He is handicapped in that, quite obviously, the Parliamentary draftsmen are grossly overworked because of the load of legislation which the Government are placing on them. I can fully understand the difficulty of his Ministry in getting the Amendments on which they have agreed as to policy put into legislative form speedily enough. My one regret is that in this situation, when there was congestion in the office of the Parliamentary draftsmen, the Government nevertheless insisted on pressing on with the successive stages of this Bill so quickly. By that decision they accentuated their own difficulties.
I trust that the noble Lord, Lord Kennet, will not take anything I say as a personal criticism of himself, because nothing of that kind is meant; indeed, we are all greatly appreciative of the care with which he has explained this pair of Amendments. So far as I can see, they are, to put it briefly, a good thing. The noble Lord is quite right in saying that they were foreshadowed. Nevertheless every good thing needs scrutiny and examination, and frankly, so far as I am concerned, there has not been the time to do this before the moment came for me to reply to the speech of the noble Lord. I must say, therefore, that we shall have to examine these Amendments at our limited leisure between now and Third Reading, and it may be that at that stage we shall have Amendments to put down to this new Part III, whether designed to alter the effect of certain of these provisions or as probing Amendments to discover precisely what is meant. I welcome the Amendments, in so far as they are designed to achieve a good purpose, and I believe that my noble friend Lord Molson will think the same. But he and I are in the same difficulty as are all your Lordships. Obviously, we shall wish to see these Amendments accepted, but we reserve the right to scrutinise them between now and Third Reading.

§ LORD MOLSON
My Lords, I need not repeat word for word what my noble friend Lord Brooke of Cumnor has said. However, I should like to express my gratitude to the Parliamentary Secretary. So far as I can see, the Government have met the points which we have been pressing on them for so long. I think that 629 to-morrow will be the time to repeat the criticisms which we have made. I think that the Parliamentary Secretary showed a certain boldness in quoting his colleague in another place who, on Committee stage there, said he was afraid these Amendments would not be drafted by the Report stage. He was referring, of course, to the Report stage in another place—

§ LORD KENNET
I said that.

§ LORD MOLSON
—and they were not drafted in time for the Committee stage in this place. But I should like to repeat that it is in the Committee stage that Amendments should be put down, in order that there is ample opportunity for proper scrutiny. It is an abuse of the procedure of this House that Amendments are put down only on Report. When they are available only after midday on the second day of the Report stage, that abuse becomes an absurdity. However, like my noble friend, I do not blame the Parliamentary Secretary for that and I thank him for what he has done in the matter.

§ LORD KENNET
My Lords, before the noble Lord withdraws his Amendment, I should like, with the leave of the House, to add one further consideration to the question of timing, in order that noble Lords may have everything in their minds.

§ LORD BROOKE OF CUMNOR
My Lords, it is only the noble Lord, Lord Kennet, himself who can withdraw this Amendment.

§ LORD KENNET
My Lords, the noble Lord, Lord Kennet, sometimes gets confused almost to the point when his head goes round. I apologise to the House for my procedural slip. Before I withdraw my Amendment—

LORD HENLEY
My Lords, is the noble Lord going to withdraw it?

§ LORD KENNET
My Lords, once again I apologise to the House. Before I finally invite the House to accept the Amendment, may I say that of course it is not simply a question of drafting; it it also a question of consultation which imposes delay. This is a difficult decision for any Government to take. We could have brought this Amendment before your Lordships earlier, but that 630 would have meant we should not have consulted everybody who ought to have been consulted in the local authority world, and the associations concerned, to the extent that they ought to have been consulted. It is an extremely complex matter, as I think your Lordships know from the complications which we have found in the discussion of it. If we had done that, and if those of your Lordships who are especially linked with one association or interest or another in this field had gone to your friends, and if they had been told by their friends that they felt they had not been fully consulted by the Government, it would have been more annoying, and more time-consuming to fight it out on the Floor of the House. I hope and believe that when noble Lords ask their friends their opinion of this Amendment, they will find that there are no major remaining objections to it among those interested.

§ On Question, Amendment agreed to.

§ LORD KENNET
My Lords, this Amendment is consequential. I beg to move.

§ Amendment moved— Page 53, line 37, at end insert—