HL Deb 12 February 1979 vol 398 cc1039-49

5.53 p.m.


My Lords, I beg to move that this Bill be now read a second time. The Bill is short. I believe that it is uncontroversial and it makes modest improvements to the Countryside (Scotland) Act which has remained virtually unamended since its enactment 12 years ago. That gives me a certain amount of pleasure because I had the responsibility of taking the original Act through your Lordships' House in 1967. The Bill does not make all the changes to the Countryside (Scotland) Act that might be desirable at present. As befits a measure introduced as a Private Member's Bill, it is confined to those provisions which are known to enjoy general support north of the Border. There may well be others which should be introduced, but I do not know whether they would be equally uncontroversial and, in any case, there has not been consultation about them in Scotland.

The contents of this Bill can, I think, be welcomed by all interests and will make a worthwhile contribution to the preservation and enjoyment of the Scottish countryside. Your Lordships will notice that the Bill is largely taken up with public paths and public rights of way. Those have an increasing significance not only in enabling citizens to get from one point to another in an unobstructed fashion, but also for wider leisure and recreation purposes.

The legal concepts are a little tricky, but a public path established by statutory process under the 1967 Act, is a physical entity, whereas a right of way is what it purports to be—a right of passage. Rights of way can be established if certain conditions are satisfied and they may also go out of use. There is a history of celebrated court cases in which the rights of the citizen became gradually clarified and there is now little doubt as to the nature of the facts which must be established before a right of way is recognised.

The Scottish public owes a debt to the Scottish Rights of Way Society Limited which has been active in this area for many years. However, it does not follow that, because the concept of the right of way is clearly established, nothing more needs to be done to promote its enjoyment by the public. In Scotland, unlike England and Wales, statutory lists of maps of rights of way are not maintained by local authorities. This is a matter of deliberate policy because it is thought that, in Scottish circumstances, by maintaining such lists one might cast doubt on the efficacy of a right of way which was not listed. However, that does have the effect that, where no case has been brought before a court, a right of way can be disputed by a landowner, and there needs to be someone to assert the public's rights. Equally, even if a right of way is undisputed, it may be physically obstructed or impassable and therefore of no practical use.

Parliament has therefore placed upon local authorities certain statutory functions relating to rights of way. They are required, in the first place, to assert, protect and keep open and free from obstruction or encroachment any public right of way in their area, including taking legal proceedings or any other steps that they may consider necessary. Authorities also have been given powers to repair and maintain public rights of way. They have a function too in relation to authorising erection of guideposts, direction notices, stiles, gates and so on. Unfortunately, those functions were not laid clearly on one particular type of local authority and, following the reorganisation of Scottish local government in 1975, the responsibility was even further diffused. A working party on walks and footpaths for recreation, formed by the Convention of Scottish Local Authorities—and that includes all types of authority in Scotland— and the Countryside Commission for Scotland, heard evidence from all the interests and concluded that the various duties and powers concerned with rights of way were not being discharged as well as they might because of the divided responsibility. They therefore recommended that functions connected with rights of way should be the responsibility of a single authority in each area. That is what Clause 1 seeks to achieve.

The other main purpose of the Bill is to enable local authorities to make by-laws to control the conduct of the public on footpaths, long distance routes and public rights of way and so to enable wardens to operate on such paths. A warden's job is, of course, mainly one of giving advice and information to the public. But, it is valuable if he has some backing in law for his presence if members of the public are misusing the facility or challenging his right to advise them. The presence of a duly appointed warden with a duty to enforce by-laws is likely to be an encouragement to landowners to conclude new footpath agreements with local authorities in the knowledge that there will be provision against abuse of their property by the public.

Finally, the Bill changes the title of "warden" to "ranger". That has become the preferred term in Scotland although I understand that on this side of the Border the term "warden" remains acceptable. This is obviously a very limited Bill, but I trust that your Lordships will agree that it is a useful one. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Hughes.)

5.59 p.m.


My Lords, I should like to congratulate the noble Lord, Lord Hughes, for sponsoring the Bill, and to thank him for having so clearly explained its purposes to your Lordships. The changes before us which he described as modest are generally welcome in Scotland. They do not seek to transform the 1967 Act, but they would adjust it appropriately to present-day circumstances.

I simply have two particular points which I should like to raise. The first is on the future progress of the Bill, because, in welcoming it, I hope that it will reach the Statute Book. When it reaches the Commons, given that there is enough time and that this Session is not interrupted by a General Election, I presume that the noble Lord is relying on the special Scottish Committee on Scottish Private Members' Bills. If the Bill does not go to that committee, it would seem that it would join the end of a considerable queue of Private Members' United Kingdom Bills, for which there really is no chance of a passage through Parliament this Session, because they have to wait their turn for the United Kingdom Committee and the only alternative is for them to be passed in another place without any debate at all at any stage.

If that assumption is correct, of course, there would be the opportunity of a debate on the Bill—at least at the Committee Stage—in another place, and one would hope that the other stages would then go through on the nod, as they say. At least there would have been a debate. But it requires that the Bill can be certified by Mr. Speaker as applying to Scotland only. Therefore, that is a very important point and I hope that the noble Lord, Lord Hughes, will be able to tell us quite definitely that the Bill applies only to Scotland and, therefore, can be certified for the special Scottish Private Members' Bills Committee. For myself, I hope that the way will be clear at all stages for the Bill to pass through both Houses.

My second point concerns fire risk. This arises because under Section 19 of the 1967 parent Act the Secretary of State for Scotland is given powers to suspend public access to the countryside areas which are dealt with in that Act at times of danger of fire; Section 19 actually speaks of weather conditions being such as to cause "danger of fire". I do not think that I need remind noble Lords who come from Scotland that Scotland's forestry industry goes through very anxious times when there are droughts or when the woods are very dry; and during those periods visitors can throw cigarette ash or pieces of glass about and cause very serious forest fires simply because they themselves are not familiar with the countryside or the dangers in certain conditions.

This Bill extends the powers of local authorities to cover public paths, long-distance routes and rights of way. Therefore, one would hope that the fire precaution power would be extended also to cover these to the extent that they cover the areas concerned which are already in the 1967 Act. I understand that both the Countryside Commission for Scotland and the Scottish Landowners' Federation consider that this is an important point, but that no one has been able to find a way of satisfactorily amending this Bill to this effect. Therefore, I am drawing attention to this matter now because the best solution which those two bodies have suggested is that provision for suspension of access—probably by the Secretary of State again, as in Section 19—in times of high fire risk should be incorporated in the agreements between the local authorities and the landowners. These agreements are to be found in the original Act and, of course, would not be extended to these public paths and long-distance routes. I hope that the local authorities in particular will recognise this requirements and will be prepared to include it in their proposed agreements.

I should like to raise a general point before closing. I have presumed that the structure and format of this Bill are in the best form for making the suggested alterations. The form of the Bill is to make specific changes and additions in pages and line numbers in the 1967 Act. I assume that the noble Lord, Lord Hughes, has had some expert advice on parliamentary drafting here and I therefore accept the form in which the Bill is presented to us. But, again, it is important that at a later stage we should not have eminent parliamentary counsel finding some objection to the way in which the Bill is being presented to Parliament. I wish the Bill well and hope that it will survive the uncertainties of the coming months.

6.6 p.m.


My Lords, it gives me great pleasure to welcome this Bill on behalf of the Government. The Government have given assistance with its preparation, and I am grateful to my noble friend Lord Hughes, who is a former Minister, for introducing it. My noble friend has made the point that this Bill is uncontroversial and useful. I am glad that it has also found favour with the noble Lord, Lord Campbell of Croy, a former Secretary of State. With them I agree, and I hope that your Lordships will also agree.

Long-distance routes and various kinds of footpaths for the public's enjoyment are a much more important part of the scene both North and South of the Border than they were when the Countryside Bills were enacted over 10 years ago. It is right that we should want to ensure that there are more of these footpaths, that they are readily accessible and that they are well-maintained and supervised. In the belief that my noble friend's Bill will make a distinct contribution to these ends, I venture to predict that the Bill will prove more significant than its modest size might lead one to expect.

Perhaps your Lordships may be wondering why, with a Countyside Bill for England and Wales proceeding in another place, the opportunity could not have been taken to bring in more substantial countryside legislation for Scotland. Perhaps I might dwell for a moment on that point. Few here will need reminding, however, that the requirements North and South of the Border rarely march in step with one another. There are undoubtedly new countryside issues arising in Scotland which demand attention, and the Government are looking at these in conjunction with the Countryside Commission for Scotland, whose concern for the well-being of the countryside over the years we should all applaud. But they are not always the same issues as occur in the South, and still less is it appropriate always to tackle them in an identical fashion in both countries. To take a relevant example, the law and practice relating to rights of way is different in Scotland from that in England and Wales, and though there is a recognition that wardens or rangers are needed to operate on rights of way and footpaths throughout the country, the method of achieving this in my noble friend's Bill is not the same as that which is in mind for England and Wales.

If I may, I should like to draw your Lordships' attention to a point in the Explanatory and Financial Memorandum on the Bill. In describing the financial effects of the Bill, the Memorandum mentions that: expenditure will count as relevant for the purposes of rate support grant". but it fails to state that expenditure will be eligible also for direct grant under the Countryside (Scotland) Act 1967. It was the Scottish Office which provided this particular piece of wording and so on its behalf I express apologies to the House for the omission. As the Memorandum says: Any increase in expenditure arising from the Bill is expected to be very small". As your Lordships know, the Explanatory and Financial Memorandum has no statutory authority and is merely put in for the convenience of the House, but I do apologise for that omission.

The noble Lord, Lord Campbell of Croy, in his speech, I was glad to see, welcomed the Bill, and he raised two points. First of all he asked, very rightly, about the future progress of the Bill in another place. I hope that another place will look on the Bill with equal favour to that of your Lordships, but I will certainly draw what the noble Lord has said to the attention of the usual channels and my right honourable friend the Chief Whip. I can say that the intention would be to have the Bill considered by the Special Scottish Committee on Private Members' Bills.

The noble Lord also raised the question of fire risk, and the need to be able to restrict access to public paths in exceptional circumstances. I may say that I have great sympathy with the point made by the noble Lord. I can assure him, however, that it will be possible to impose suitable conditions regarding access through the by-laws which, under the Bill, can be made by local authorities applying to public paths, and the presence of wardens on paths will be another safeguard in exceptional fire-risk conditions. I shall, however, bring what the noble Lord has said, and his suggestion, to the notice of my right honourable friend the Secretary of State with a view to his recommending to local authorities that specific provisions should be made in the by-laws. In conclusion, it gives me great pleasure to commend the Bill to the House.

6.11 p.m.


My Lords, I hope I may be forgiven for intruding very shortly in this debate. I listened with great care to what my noble friend who introduced the Bill had to say. I only wish that I had the same facility for finding my way about a Bill that he obviously has, and which I know from past experience with him. But I had not got him at hand when I spotted this Bill and I wondered what it was all about, and so I read the Explanatory and Financial Memorandum. I saw that it mentioned a couple of previous Acts of Parliament, and that led me to go further and look at the Bill itself. There I found, at the beginning of Clause 1, "In section 46 of the Act of 1967". So I got the Act of 1967 and I looked at Section 46. I did not get much further on that, but I found in a later line that it spoke of the Act of 1973. So I got that one too. That Act referred to an Act of 1972, and so it goes on. I waded through these various Acts. It is an impossible thing to do, The noble Lord, of course, is a wizard at this kind of game, but it took me hours to find out what this Bill was all about.

I ask any of your Lordships who wish to know more about it just to turn to Section 54 of the Act of 1967 to start with. It runs to 14 lines, and it begins, A local authority may… et cetera, and it goes on. Then if you look at a simple little amendment here dealing with Section 54 of the 1967 Act, it says: for subsection (1) there shall be substituted … Of course this is quite simple, is it not? Then you get down to the bottom of the page, 44 lines on, and turn over the page and you find that there are 58 lines to be digested before you discover anything about it.

That is only one example. The Act teems with examples of that kind. The other Act referred to is just as bad. You go on turning page after page, and you are given in one place a reference to Part IX of the Act of 1967—I think that is right, but it may be the other one for all I remember. It is a terrible business to find out what that means. You go on turning over page after page. It is high time that draftsmen were able to do something better than this. It is a perfect farce. There are about five different Acts of Parliament mentioned in connection with this little Bill. If you want to find out about it you have to wade through the whole lot of them, and it will take an hour or two to do so.

My plea to Her Majesty's Government is to get the people who write these things to produce something a little simpler. When you read the thing, at first you say: "This is easy". But it does not mean just what one gathers from the Explanatory Memorandum, it means a lot more; and the amendments you have to deal with are legion. I say these words in protest, because it is ridiculous that we in this House who are fairly busy have to wade through this kind of thing in a simple little Bill of this nature.

6.15 p.m.


My Lords, I have noticed before that sometimes the debate on one Bill seems, to a certain extent, to carry on the proceedings of the previous one. My noble friend Lord Donaldson quoted a friend of his as saying, "If you have a Hungarian for a friend you don't need an enemy", and I noticed that the noble Lord, Lord Strathclyde, started his remarks in his usual way, by referring to me as his noble friend. I hope that I shall not be here long enough to reach the day when he decides that he really wants to attack me. But I think he rather over-stated the case, because what he has omitted in all his researches, which appear to have been extensive, was that the Section 54 in the 1967 Act to which he referred is in fact removed by these amendments. If we had not amended in this particular way, if the draftsmen had not done a thorough job of looking at all the Acts affected, we would not be accomplishing the purpose of this simple Bill.

The trouble was that when the previous Government amended local government, of necessity the Act made references to previous legislation, which included the 1967 Act. I am quite sure, however justified Lord Strathclyde is in his criticisms of the way the draftsmen have to go about their job, he would have used—not necessarily in your Lordships' House, but certainly along in the Library—the sort of naval language of which he is a master if, by omission, they had made a mess of the job; and if they had omitted all these references, that is what they would have done. They could have made a total mess of the job in one paragraph. It has taken all these lines to do the job properly.

One of the advantages of introducing a Bill of this kind, as the noble Lord, Lord Campbell of Croy, suspected, is that I did have technical assistance in drafting it; and I must admit to the noble Lord, Lord Strathclyde, that I could not. by my own skill, have accomplished all these things to which he has objected. In fact, I would add that very little in this Bill is due to any skill on my part at all.


My Lords, I am grateful to the noble Lord for giving way. He has in fact replied to me as I had hoped. My noble friend Lord Strathclyde raised some of the difficulties about the way in which the Bill is drafted but, as I said, I prefer that it should be drafted in an expert way. Perhaps the noble Lord would agree, that what really matters is how soon the consolidations can be carried out, because then it will be much easier to find one's way round the legislation.


My Lords, all I can say is that it will not be consolidated in this Session, but given the continued co-operation of my noble friend Lord Strabolgi in the next Parliament, he can look after the consolidation. It has been a pleasure to have had the Bill welcomed so much by the noble Lord, Lord Campbell of Croy, and I confirm what he has asked, and as my noble friend Lord Strabolgi has said, that it applies only to Scotland. I am grateful to the noble Lord for describing the procedure that can be followed in another place. Perhaps he and I, with my noble friend Lord Strabolgi, can exercise a certain coalition in these matters to ensure that we get the right procedure in another place. I never had the misfortune to be a Member of the other place, so I was not aware of those procedures.

I need not say more on the fine point. It was a great advantage to find that the Government were approving the Bill, so the tricky work of replying to difficult points was undertaken by my noble friend Lord Strabolgi. I am in total agreement with him and I am grateful to him for having removed that task from my shoulders. Like Lord Campbell, I hope that the Bill may achieve speedy passage through the House. I could not possibly argue that the Bill is an argument against having a General Election, but if we do not have one for sufficiently long a time to enable the Bill to go through, that will be one modest gain from its continuation.

On Question, Bill read 2a, and committed to a Committee of the Whole House.