HL Deb 17 February 1981 vol 417 cc592-673

5.30 p.m.

The Earl of Avon

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Earl of Avon.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD JACQUES in the Chair].

Clause 36 [Provisions with respect to the Countryside Commission]:

[Amendment No. 461 not moved.]

Lord Craigton moved Amendment No. 462:

Page 31, line 41, at end insert—

("( ) In Part III of the 1949 Act, unless the context otherwise requires, any reference to land includes references to land not more than three miles outside the low water mark and after any reference to flora and fauna is to be added the words "or other living thing".").

The noble Lord said: With the permission of the Committee, I will speak at the same time to Amendment No. 470. This returns your Lordships to the subject of marine reserves. When my noble friend Lord Mowbray and Stourton moved his Amendment No. 225 it was 11.44 p.m. on Tuesday, 3rd February, a fortnight ago, and he told the Committee: Already in some 60 countries statutory provision has been made for marine conservation areas, designated marine or underwater reserves, sanctuaries or parks. Many of these are in temperate seas and protect habitats similar to those which are found around our shores. Examples are to be found in France, Spain, South Africa, New Zealand, the Soviet Union, Japan and the United States".—[Official Report, 3/2/81; col. 1179.]

He did not mention the United Kingdom. In supporting that amendment creating marine reserves, the noble Lord, Lord Melchett, pointed out that all Government departments had agreed that we needed marine reserves and that the NCC had supplied noble Lords with a brief supporting them. Thus, in moving my amendment, I am giving the Committee one more opportunity to tell the Government that Britain really needs marine reserves and I am giving the Minister an opportunity to say what decision he has made about the undertaking he gave just after midnight when we last debated this matter, when he said: I undertake to go to the Secretary of State to see whether it is possible for us to include an enabling power in this Bill".—[Official Report, 3/2/81; col. 1188.]

That was a fortnight ago. My Amendment No. 462 speaks for itself and sets out clearly what I am trying to do; namely, to amend the measure which is the statutory basis for SSSIs in five lines: In Part III of the 1949 Act, unless the context otherwise requires, any reference to land includes references to land not more than three miles outside the low water mark and after any reference to flora and fauna is to be added the words "or other living thing".

In other words, my amendment is very simple and I wonder whether there is any more to do other than move it. All I suggest is extending the land of Britain for SSSI purposes for three miles out—it is as simple as that—leaving the NCC to get on with it. We have been told there are many restrictions in seaward areas and that they do not apply to the land. So be it, but there are also restrictions in landward areas that do not apply to the sea, and the NCC in creating SSSIs seems to get round that problem. If my simple and workable solution is accepted the worst that can happen is that in some areas the establishment of marine reserves might be very difficult and perhaps not worthwhile, hut in others the task will be easy. I say we can leave it to the NCC to take each case on its merits and negotiate each case with any other authorities which have rights and interests in the site. Those who may think that my speech does not have the approval of the Government will be interested in this quotation from the Government's short discussion paper: It could prove dangerous to wait until the damage is done before seeking the power to declare statutorily protected marine nature reserves". That is exactly what my noble friend Lord Mowbray said. It goes on: The procedure envisaged is that the NCC, before making any proposals, will consult all those with rights, responsibilities or interests in the area, including Government Departments, local authorities, statutory and voluntary bodies, industries and individuals".

Government Departments having rights and responsibilities in the area would, therefore, also be consulted. That is exactly what is now done in respect of SSSIs. But then it goes on: It is expected that most reserves would be established in areas at present unspoilt and free from existing industrial, commercial or similar pressures, thus ensuring that conflicts of use and restrictions on rights would be minimised". By accepting my amendment we can let the NCC get on with it and, as I said, some will be very easy and others will be more difficult, with some being too difficult to make marine reserves. We have made our case and I shall listen with great concern to what my noble friend has to say about the undertaking he gave a fortnight ago.

Baroness White

I support the amendment. I was not able to be here when the matter was raised on 3rd February but I have read the Official Report of that debate and I thought the case was admirably put by the noble Lords, Lord Mowbray and Stourton, Lord Craigton and Lord Chelwood, who I understand is not able to be with us today, and my noble friend Lord Melchett. The case in principle is unanswerable in the sense that there is no disagreement that I have been able to discern anywhere as to the desirability of enabling marine nature reserves to be established. The thin consultation paper dated 2nd February—in other words, the day before the matter was to be debated in your Lordships' House—at least does not hesitate about that and states in the final sentence of paragraph 3: The requirement for sites, not only for the conservation of wildlife but also for research, experiment and monitoring of change and education, is as great in the marine environment as on land". It could hardly have been plainer than that.

It proceeds in the following paragraph to remind us that the United Kingdom Government intend to ratify the Berne Convention on Migratory Species and the Convention on European Wildlife and Natural Habitats, and goes on: These involve present and potential commitments to protect marine creatures and the areas in which they live". So there is no dubiety whatever as to the aim. The noble Lord, Lord Craigton, quoted the final sentence of paragraph 5 of this document, which bears repetition: It could prove dangerous to wait until the damage is done before seeking the power to declare statutorily protected marine nature reserves". What could be clearer than both the intention and indication of how undesirable it would be to leave this matter until a situation arose in which, presumably ex post facto, one would have to attempt to do something by statute.

I can only repeat what I think was emphasised in the earlier debate about the time lag over this matter—and I really know something about it. I chaired a seminar in Bangor, which is the seat of one of the best marine biological establishments in the country. The seminar was held in September 1979—nearly 18 months ago. We had a typescript copy of the joint report of the Nature Conservancy Council and the National Environment Research Council, which was published in print a few weeks later. Then there was the inter-departmental committee, which substantially concluded its work long ago. As was remarked in the earlier debate, it is known that the substance for the consultation paper was available at least last October, and to my mind, to say the least, it was disrespectful to Parliament that the consultation paper came out only the day before the opening debate on this subject; and some of us did not receive the paper until afterwards.

At one point the noble Earl, Lord Avon, suggested that my noble friend Lord Melchett was a little naïve in some of these matters. I would suggest that the Government have been rather naïve, if I may say so in the most friendly way. If they think that they are really going to get away with this, then they are even more naïve than I would have supposed them to be, because there is a united front.

Bearing in mind the time that has elapsed during the various consultations and the promulgation of this fairly simple and straightforward paper—though I know that there is a good deal behind it—we recognise that to include in the Bill detailed legislation on this point is probably to ask for too much. After all, what has happened has happened, and we are all, I hope, reasonable and sensible people. But what we are really asking for is a provision in the Bill upon which future regulations, statutory instruments, bylaws—whatever are considered to be the most appropriate—can then depend. Give us an enabling clause in this Bill. We are not asking for the matter to be spelt out in detail. We appreciate that the way things have gone, with this great long list of bodies which are to be consulted and which are asked to submit their thoughts by 3rd August this year, plainly does not allow for anything detailed in the current legislation.

But we all also know of the time that is likely to elapse between this Bill and future legislation, given the congestion of the Government's legislative timetable. Though this is an extremely important measure, it is not necessarily a great vote catcher, and as we draw nearer an election we mieht think that other matters should take precedence over it. Some of us have been here long enough to know that we should not put our trust in princes, even if they sit on the Government Front Bench. Therefore, we are very anxious indeed that before the Bill leaves your Lordships' House it should include the statutory authority to take the matter further. That is all we are really asking for. We are realistic about this, but we are also determined. Therefore, I very much hope that we are to have from the noble Earl an assurance which will enable us to have some confidence that what we have asked for will happen.

The Earl of Avon

Perhaps I may intervene at this stage since I feel that otherwise we are in danger of rehearsing what we discussed on the third day of the Committee. First, with regard to my noble friend's amendment, I should like to deal briefly with the question of the phrase "other living thing". The Government are satisfied that the term "flora and fauna", which is used throughout the Bill, covers all living things in respect of which consultation is required and that the words suggested in the amendment are not necessary.

I now turn to the major question of marine nature reserves. As I have been reminded, I previously indicated that I would ask my right honourable friend the Secretary of State for the Environment to consider further the question of incorporating in the Bill enabling powers to establish marine nature reserves. However, it still seems preferable to the Government to consider legislating on marine nature reserves when we have had a chance to look at the comments of the various interested bodies on the consultation paper. Therefore, I think that without further ado I can ask my noble friend Lord Craigton either to withdraw his amendment, or to test the opinion of the Committee.

Viscount Massereene and Ferrard

I should like to speak on this matter very briefly for two or three minutes from the point of view of my own practical experience. I live on a very beautiful sea loch which was abundant in every form of marine life. During the past two or three years many skin divers, and other people from Glasgow, have driven up for weekends with dinghies and fishing gear. They have destroyed all the sea life in the loch. The other day a diver who had been into the loch told me that the bottom is like a harrowed arable field. He said that everything has been destroyed so far as he could see. He saw very few signs of life, apart from one enormous skate, which completely terrified him, and so he came up. I should like to support the amendment warmly because I think it necessary that we have marine reserves. After all, we have witnessed the disappearance of the herring. For years I warned Labour and Conservative Governments that the herring would disappear, and to a great extent it has.

Lord Melchett

I should like to say a few words from this side of the Committee. I found the noble Earl's reply quite extraordinary. If this is the way that we are to proceed with this Bill, it will never get through your Lordships' House and will never become law. This is a subject on which there has been absolute unanimity on all sides of the Chamber, from all parties, from the Cross-Benches, calling for such a provision in the Bill. Clearly it has overwhelming support. The Government were given an opportunity on a previous occasion by the noble Lord, Lord Mowbray and Stourton, to take the matter away and consider it, and then to insert an enabling clause. As my noble friend has said, nobody was asking them to be unrealistic about this. It seemed to me to be a moderate and sensible proposal, with support from all sides of the Chamber. If the Government's response to that kind of request from all sides of the Chamber is, "Well, let's have a vote on it", we shall be here forever, and the Report stage will take considerably longer than the Committee stage. That is not a prospect which would be relished by any noble Lords, in particular those who have to be present throughout the proceedings. But it would be something that the Government would have brought on their own heads.

It seems to me that the case for this proposal is overwhelming. It has been put very effectively by my noble friend and other noble Lords. The sensible course would be for the noble Lord, Lord Craigton, to divide the Committee and have his provision included in the Bill. I do not myself consider that it is the right provision, but having won the principle, we might then get the Government to adopt a more realistic attitude. I do not know whether that would follow, but I should certainly hope so. I hope that noble Lords on all sides of the Chamber will support the amendment of the noble Lord, Lord Craigton.

Lord Mowbray and Stourton

A fortnight ago, less five hours, I moved an amendment which was slightly different from this one. It was rather involved, but I spelt out the details. The amendment put forward today by my noble friend Lord Craigton is a simpler one. To put it mildy, I am very disappointed that my noble friend, on behalf of the Government, has not been able to give us any comfort after 14 days of thinking over the matter. He has brought us back to where we were, with a rather inconsequential consultation document, comments on which do not have to be in until August.

I feel that the question is not being looked at with the importance that it deserves. We have EEC commitments to meet; we have our own consciences to meet. We are asking people around the continent of Europe to think about our fishing rights and various other matters, including those relating to conservation. Here we have a simple proposal regarding marine conservation. No one, least of all the Minister, has denied that it is an important matter. Yet we are getting no farther. A fortnight ago, I spelt out the point at great length, despite the lateness of the hour. My noble friend has now put it simply.

The noble Baroness, Lady White, the noble Lord, Lord Melchett, indeed all of us are people of rather broad common sense. None of us is extremist. We are all, I hope, people who would not want to press the Government into doing anything stupid. All we are wanting is for the Government to say that, somehow, they will make an enabling amendment. They can fill out the enabling amendment how they want later, subject to the agreement of both Houses. An enabling amendment does not cost the Government very much. Why can they not do that? In the absence of the noble Earl saying that an enabling amendment, however broad, will be made, I would hope that my noble friend Lord Craigton will press this amendment so that we can test the feeling of your Lordships' Committee; and if that feeling is as I think it will be, then I hope the Government will feel obliged to listen to the feeling of this Committee on this matter.

The Earl of Onslow

There is nothing more pleasant than seeing an ex-Whip in revolt against his own Front Bench. That gives considerable amusement. But, to be serious, we must support this amendment. It has been rather depressing to listen to the noble Earl on the Front Bench producing the same sort of argument over SSSIs, over moorland conservation—

The Earl of Avon

I must interrupt my noble friend. It is not the same argument, is it? I would ask your Lordships to think just a little.

The Earl of Onslow

It is the same sort of argument as I have been listening to.

Lord Donaldson of Kingsbridge

With the greatest respect, I did not hear any argument at all.

The Earl of Onslow

All right; the different no-argument, if it is insisted on having it that way: that nothing can be done, and that if things do go finally wrong the Government will then do something later. The only things which have been statutorily protected are limestone pavings, for some extraordinary reason. That is probably because you cannot plough them up.

Lord Somers

Perhaps I could just say how very much I agree with what was said by the noble Lord, Lord Melchett, and by other noble Lords. This whole Bill is not a party affair; and perhaps I could remind the noble Earl of that and of the fact that it really should not be a matter of religious conviction to refuse every proposed amendment to this Bill.

Baroness Hornsby-Smith

I did not intend to intervene in this debate but I find myself in support of my noble friend on the Front Bench. I would be very happy to see marine reserves, but I think it would be wrong to accept this amendment at this stage, when we are apparently waiting for a consortium to give its opinions and recommendations, as mentioned by the noble Baroness, Lady White, and when the inshore fishing interests, which I hope will be represented, will be able to give their views. I think it would be to jump the gun to accept what to me reads as a rather final recommendation, that any reference to land includes references to land not more than three miles outside the low water mark", at a moment when the EEC is trying to knock our fishing rights down from 12 to six miles.

I should like my noble friend Lord Craigton to appreciate that in the principle of having marine reserves I am fully with him, but I think that at this stage, when the Government—and I understand the conference is to take place in March—are going to receive recommendations—

Lord Melchett

If I might interrupt the noble Baroness—

Baroness Hornsby-Smith

I shall be only a minute and then I will give way to the noble Lord. I think it is not unreasonable that the Government should ask that we wait until those recommendations on this very important issue have been considered from all angles. Is it not jumping the gun a little to give this power in this Bill at this moment of time?

Lord Melchett

The noble Baroness was mistaken in what she said. No doubt she was not able to be here for the previous debate and has not yet had an opportunity to read it, but if she had she would know that a group of civil servants representing all Government departments have been considering this matter since 1978; that it has been under consultation for the year and a half that this Bill has been under consultation; that this consultative paper which my noble friend referred to appeared the day before your Lordships were due to debate amendments on this subject; and that, unlike all the other consultative papers issued on this Bill, everybody had several months to reply to it. All the other consultative papers were issued with replies asked for within a matter of weeks.

Finally, if I could point this out to the noble Baroness, what we are being asked to vote on is something that she herself supports; that is, the principle that there should be marine nature reserves. If we can support that and get that principle accepted by your Lordships, I have no doubt that at the next stage we can have a Government-drafted amendment which would suitably encompass exactly what the noble Baroness wants to see. What we need now is a vote on the principle, and I hope the noble Baroness will be with us, as she said she was.

Lord Gray

I do not want to rehearse arguments that have been gone over already, but I should like, however, to make two points in support of the amendment. Firstly, it has been referred to, but I do not think quite in the way that I would have referred to it, that if the Government are to ratify, and do ratify, the Bonn and the Berne Conventions, we have been told that it will carry with it a commitment to legislate in this field. But, equally, it has not been pointed out that those conventions refer to other matters, and to birds, fauna and flora on land as well.

The only other thing I should like to do is to draw to the attention of my noble friend something which caused me concern about the consultation paper which was referred to earlier in this debate. That is, when I got my copy I found that from the circulation list had been omitted both the Scottish Marine Biological Association and the Marine Biological Association of the United Kingdom. I understand that has now been put right, but it was something which did not exactly commend the paper to some people who are very much involved in this field.

Lord Craigton

I have listened with great interest to this debate, and I am grateful to the noble Earl for giving such a clear reply. I am grateful to the noble Baroness, Lady Hornsby-Smith, because she raises a point which is completely answered by my amendment. True, there are areas, as the consultation paper says, where it would be difficult, where there would be conflicts; but it also says that there are areas at present unspoilt and free from existing industrial, commercial and similar pressures. All that my amendment is saying—and it is a no-nonsense amendment—is: put it on the statute book and the NCC, who are well used to making SSSIs, can, where it is possible and where it is practicable, start looking for nature marine reserves. It makes a start, and then the Government, when they bring in their Bill—that is, if the Whips find them any more time for any sort of conservation Bill within the foreseeable future—can, if they wish, amend my amendment. This is simply to hold the position, which it will do admirably through an organisation which is already existing, and it will cost nothing.

5.58 p.m.

On Question, Whether the said amendment (No. 462) shall be agreed to?

Their Lordships divided: Contents, 98; Not-Contents, 54.

Airedale, L. Lee of Newton, L.
Ampthill, L. Listowel, E.
Amulree, L. Llewelyn-Davies of Hastoe, B.
Ardwick, L. Lockwood, B.
Avebury, L. Longford, E.
Bacon, B. Loudoun, C.
Baker, L. Lovell-Davis, L.
Balogh, L. McGregor of Durris, L.
Banks, L. McNair, L.
Bernstein, L. Maelor, L.
Blease, L. Massereene and Ferrard, V.
Blyton, L. Melchett, L.
Boothby, L. Mersey, V.
Brockway, L. Mowbray and Stourton, L. [Teller.]
Brooks of Tremorfa, L.
Chitnis, L. Nathan, L.
Chorley, L. Newall, L.
Clifford of Chudleigh, L. Onslow, E.
Cooper of Stockton Heath, L. Peart, L.
Craigmyle, L. Pender, L.
Craigton, L. [Teller.] Phillips, B.
Cromartie, E. Renton, L.
Cudlipp, L. Rhodes, L.
David, B. Richardson, L.
Davies of Leek, L. Ritchie-Calder, L.
Donaldson of Kingsbridge, L. Rochester, L.
Elliot of Harwood, B. Ross of Marnock, L.
Elwyn-Jones, L. St. Davids, V.
Fletcher, L. Segal, L.
Fulton, L. Sempill, Ly.
Gosford, E. Shannon, E.
Granville of Eye, L. Shinwell, L.
Gray, L. Somers, L.
Greenway, L. Spens, L.
Greenwood of Rossendale, L. Stamp, L.
Gregson, L. Swansea, L.
Gridley, L. Taylor of Gryfe, L.
Hale, L. Teviot, L.
Halsbury, E. Thurso, V.
Hampton, L. Underhill, L.
Hanworth, V. Vickers, B.
Hill of Luton, L. Wallace of Coslany, L.
Hooson, L. Walston, L.
Houghton of Sowerby, L. Wells-Pestell, L.
Hughes, L. White, B.
Irving of Dartford, L. Wigoder, L.
Jacques, L. Wilson of Radcliffe, L.
Janner, L. Winstanley, L.
Kilmarnock, L. Yarborough, E.
Kinloss, Ly.
Alexander of Tunis, E. Bellwin, L.
Auckland, L. Belstead, L.
Avon, E. Brougham and Vaux, L.
Campbell of Croy, L. Lucas of Chilworth, L.
Craigavon, V. Lyell, L.
Crathorne, L. Mackay of Clashfern, L.
Cullen of Ashbourne, L. Margadale, L.
Daventry, V. Marley, L.
De La Warr, E. Marshall of Leeds, L.
Denham, L. [Teller.] Monk Bretton, L.
Drumalbyn, L. Morris, L.
Ellenborough, L. Mottistone, L.
Fortescue, E. Nugent of Guildford, L.
Fraser of Kilmorack, L. Orkney, E.
Gainford, L. St. Aldwyn, E.
Gisborough, L. Saint Oswald, L.
Glenarthur, L. Sandys, L. [Teller.]
Glenkinglas, L. Selkirk, E.
Gormanston, V. Skelmersdale, L.
Grimston of Westbury, L. Stanley of Alderley, L.
Hailsham of Saint Marylebone, L. Swinfen, L.
Trefgarne, L.
Harvington, L. Trenchard, V.
Henley, L. Tweedsmuir, L.
Hornsby-Smith, B. Vivian, L.
Hylton-Foster, B. Westbury, L.
Lauderdale, E. Young, B.
Long, V.

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 36, as amended, agreed to.

6.7 p.m.

Lord Melchett moved Amendment No. 463:

After Clause 36, insert the following new clause:

(" Amendment of Nature Conservancy Council Act 1973

.The Nature Conservancy Council Act 1973 is amended as follows—

  1. (a) in section 1(a)(ii), after "Great Britain" insert "and the representation of the views of nature conservationists on such matters to the Secretary of State or to any other Minister";
  2. (b) in section 1(a)(iii), after "nature conservation" insert "and all wildlife and natural history";
  3. (c) after sub-paragraph (iii) of section 1(1)(a) insert the following sub-paragraph—
  4. (d) in sub-paragraph (iv) of section 1(1)(a) for the words "sub-paragraphs (i) to (iii) above" substitute the words "sub-paragraphs (i) to (iii) (a) above";
  5. (e) the following sub-paragraph shall be inserted after subparagraph (iv) of section 1(1)(a)—
  6. (f) at the end of subsection (2) of section 1 insert—
  7. (g) in subsection (8) of section 1, after "number of members" insert "representative of nature conservation, natural history and wildlife interests".".

The noble Lord said: This is, in effect, a series of amendments to the Nature Conservancy Council Act 1973. Taking the different paragraphs, I think it would be sensible to omit any reference to paragraph(e) which deals with enforcement, as we had a debate on that earlier in the Committee stage and we shall no doubt come back to the subject at Report stage. Otherwise, taking the paragraphs in order, paragraph (a) simply, I think, affirms something which I understand to be the firm policy of the Secretary of State for the Environment; that is, that the NCC should, as part of their duties, represent the views of nature conservationists to the Secretary of State or other Ministers. I should like to say in respect of this and other parts of this amendment that absolutely no criticism of the Nature Conservancy Council is intended in anything that either the amendment says or that I say in introducing it.

I think that the reverse is the case. The NCC are to be strongly congratulated for disagreeing with the Government on certain key features of this Bill and on finding themselves much more in tune with the mood of this Committee than they have been with the Government—for example, on marine reserves, where the NCC played a major part in producing the report referred to by my noble friend Lady White and in supporting the case that your Lordships have now yourselves supported. I have nothing but praise for the way that the NCC have behaved during the passage of the Bill and in the period immediately before its consideration in your Lordships' House. But it seems to me that it will be useful to clarify certain parts of the NCC's objectives and remit. That is what this amendment would seek to do.

Paragraph (a) simply ensures that the NCC, as part of their functions, convey to the Government the views of nature conservationists. This it seems will become rather more important in the future than it has been in the past because the NCC's remit is being extended to take on responsibility for the numerous advisory committees which are likely to be set up under Part I of the Bill, and therefore, even more than they are now, they will be the official channel of information and communication between nature conservationists in this country and the Government. As the Government, with many others, believe very strongly in supporting voluntary organisations, it would be valuable for this nature conservation Quango to have, as part of their objectives, the duty of conveying the views of voluntary bodies to the Government.

Paragraph (b) attempts to ensure that the NCC sees as its role not simply the caring for and interest in scientific nature conservation, by which I mean the scientific study of nature or the study and conservation of rare species; but the Nature Conservancy Council should also take an interest in, and encourage an interest in, the generality of wildlife which is what after all gives most people in this country their pleasure from the kind of things we have been discussing. I hope that will not be too contentious and will also be acceptable to the Government.

Paragraph (d) is a consequential drafting amendment. Paragraph (e): we have already debated the general question of enforcement, and it would be sensible to leave that for the time being. Paragraph (f) is a consequential drafting amendment which will need some tidying up. Paragraph (g) is the third substantive amendment, and that would ensure that those people appointed to the Nature Conservancy Council were representatives of nature conservation, natural history and wildlife interests.

Again, I should like to stress that absolutely no criticism is intended of those people who are currently members of the NCC. As I have already made clear, it is quite the reverse. Their actions over this Bill deserve nothing but praise. It would be useful to clarify in the legislation what I understand to be the position. The Nature Conservancy's role, as seen by the Government and certainly by the voluntary nature conservation bodies, is to represent nature conservation's views to the Government. Other people represent the views of agriculture, the views of fisheries, the views of forestry or whatever it may be. Indeed, the views of those people interested in the wider countryside, and the amenity value of the countryside, are represented very ably by the Countryside Commission.

The Nature Conservancy Council is the only official organisation which speaks up for the interests of nature conservation and wildlife. It would be useful to be clear that its council should be, as I believe it is now and has been in the recent past—and that is why no criticism at all is intended—composed of those people most able to give the Government that advice. I hope that I have explained a slightly complicated amendment reasonably briefly. I beg to move.

Lord Cullen of Ashbourne

I entirely agree with the views of the noble Lord, Lord Melchett, about the way in which the NCC have carried out their work. Perhaps he is right that in the last amendment they were against the Government, but in many other respects so many of the provisions of the Bill are a result of the contributions which the NCC staff have made after wide consultations with other experts in the conservation world.

We realise the important contribution that the voluntary bodies make both in the practical field of establishing nature reserves and in providing advice to the Nature Conservancy Council. However, we are not persuaded that it is necessary to place with the Council the function of representing the views of "nature conservationists"—however defined—on the development and implementation of policies for or affecting nature conservation in Great Britain. They are, after all, our statutory advisers on nature conservation. They do seek such advice as they think necessary from outside before advising Government, and I am sure the conservation movement is not backward in making their views known to the council. But to do as the amendment seeks would be to require the council to consult with, I imagine, a vast number of people or bodies, before ever coming to Government. I believe we must leave the NCC to decide how best to take account of the views of the voluntary movement in their advice to Government. Perhaps I could turn to paragraphs (b) (c) (d) and (f)—

Lord Melchett

If the noble Lord is leaving that point—it might be simpler if we take them one at a time—the noble Lord would have reassured me and answered my point had he said something which I understood the Government had already said to the NCC and if he had simply repeated—but he did not—that they looked upon the NCC as having an important part to play in communicating the views of nature conservationists generally to the Government. The noble Lord, it seemed to me, carefully did not say that. But if that is the case (which I certainly understand the NCC's position to be) then what I want is the confirmation that the Government also see it that way. There is no criticism of the NCC in this, but if we can have the Government confirming that they see that as an important role for the NCC then I should be happy to leave paragraph (a).

Lord Cullen of Ashbourne

Yes, we see it exactly that way. We think that is, in point of fact, what happens. Turning to paragraphs (b), (c), (d) and (f), the Committee can be assured that the Nature Conservancy Council, in exercising the functions decided for them by Parliament, do take account of wildlife and natural history, do seek to promote the public enjoyment and better understanding of it, and to carry out research into wildlife and natural history. These things happen at the moment.

As to amendment (g), members of the council have been appointed by successive Secretaries of State, not only for the interest they have shown in nature conservation and the work of the council, but for the personal qualities and experience which they can bring to the work of the council. To restrict the composition of the council to representatives of nature conservation, natural history and wildlife interests may restrict the range of relevant experience and expertise which might otherwise be brought to bear on the council's deliberations. Although I understand entirely the point behind the amendment, I hope that the noble Lord will withdraw it.

Lord Melchett

Although I must confess that in previous years I have said it myself from the Government Front Bench. I always wonder why, when the Government Minister says that something happens at the moment, they cannot therefore accept with a cheerful countenance an amendment which ensures that it will continue to happen. But the noble Lord obviously was not about to do that. I should like to have a further thought about what he said about widening nature conservation to include wildlife and natural history. It did not seem to me that he provided a very good answer to that part of the amendment. I may wish to come back to that part at a later stage. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.18 p.m.

Lord Melchett moved Amendment No. 464:

After Clause 36, insert the following new clause:

(". The Water Act 1973 is amended as follows—

  1. (a) (1) in section 22 leave out ("have regard to") and insert ("take steps to preserve"); leave out ("of conserving") and insert ("to conserve"); leave out ("of protecting") and insert ("to protect").
  2. (b) after subsection ( ) of section 22 the following subsection shall be inserted—

("( ) The Secretary of State shall submit to Parliament each year a report on the way the water authorities have fulfilled their obligations under the above subsection and the steps they have taken to modify their actions as a result.".")

The noble Lord said: With Amendment No. 464 it may be convenient to take Amendment No. 465, which amends the Land Drainage Act 1976, and Amendment No. 466A, which also amends the Water Act 1973, as does Amendment No. 464. These are important amendments because there is a fairly widespread feeling among nature conservationists that it is in the field of land drainage, particularly in the area of major new land drainage works, that some of the most serious and controversial threats to nature conservation have taken place in recent years and are likely to take place in the future.

There is, I am afraid, a widespread belief that regional water authorities have a lot of engineers who need work to keep them busy and that rather a lot of looking around for things to do is going on in this field. These amendments would, taken together, ensure I hope that regional water authorities and, in particular, internal drainage boards, which act under authority from the regional water authorities, would take into account all the issues which we have been discussing in this Bill.

The first part of Amendment No. 464 strengthens the duty which the water authorities will have to conserve and preserve wildlife and natural habitats. I hope it would mirror, for example, the work which the Forestry Commission have done so ably in taking steps to preserve natural habitats and to encourage wildlife. The second part of Amendment No. 464 would ensure that these general duties were not simply imposed and then forgotten about, but reported upon regularly so that people would know exactly what was done to implement them.

As I said, the amendment would have some impact, I would hope, on the activities of internal drainage boards. It is in the field of their activities that most concern arises at the moment. I spoke earlier of damage being done to a site of special scientific interest by activities nearby which it, the Government very kindly said they would consider, about a problem in the Broads, where some drainage works have very seriously affected one of the last Broads to retain its natural vegetation. That appeared to be undertaken by the internal drainage board without any knowledge that what they were doing might be damaging one of the most important sites for wetland habitats in the whole of Europe. It seems extraordinary that an internal drainage board should be without that sort of information and without any obligation to be aware of the consequences of their activities.

I have been told very recently of another scheme being promoted by an internal drainage board in the Broads area, which will affect Halvergate Marshes, and in particular the Seven Mile Berney area of the Broads. The scheme would involve new pumps, the construction of new access roads and the deepening of some marshes. Water levels would be reduced and the land used for arable cropping. The cost would be about £1.2 million. Again this is a major scheme promoted by an internal drainage board about which there appears to have been no necessity for, and indeed no consultation with, the Nature Conservancy Council or the Norfolk Naturalist's Trust in the early stages of the scheme being drawn up. Had there been such consultation, it is quite possible that the scheme would have been acceptable and we would not now have, as we do have, demands for a public local inquiry regarding the proposals. It is that sort of problem which I hope my amendment will help us to avoid in future.

Amendment No. 465 makes this particularly clear by ensuring that in the exercise of the powers conferred under the Land Drainage Act particular note is taken of sites of special scientific interest. It does not say that people cannot do things on sites of special scientific interest; it does not say that they are protected for all time or that water authorities or IDBs cannot take any actions there: it simply says that they should take particular note of them. In other words, this is one of the most moderate, and probably not very effective but nevertheless valuable, amendments which I have spoken to so far. I hope it will be acceptable to the Government.

The final amendment, No. 466A, would ensure that some people appointed to regional water authorities would have some knowledge and experience of wildlife, natural history and related matters. This is important, first, because of the enormous amount of money which regional water authorities have at their disposal to spend on schemes which are very often important and worthwhile. Let me make it clear that I am not arguing about their activities in general; but because they have such huge sums of public money to spend and because the schemes on which they embark very often have such widespread effects on wildlife and natural habitats, it seemed to me it would be useful if at least one member of a regional water authority had some expertise on these matters and would be able to advise the authority when drawing up this sort of proposal. I hope that these amendments will commend themselves to the Government and I beg to move.

Viscount Massereene and Ferrard

Regarding these amendments I understand that we are losing about 150,000 acres of wetlands every year and, of course, once these lands have gone they cannot be re-created: they have gone for ever. When these wetlands are situated in an SSSI area, there must be some control put on water boards as regards not destroying them. If we take the disappearance of semi-natural woodlands, of course they can be rehabilitated although it takes a long time; but you cannot rehabilitate a bog of scientific interest once it has gone. It cannot be re-created. Therefore, I support these amendments.

Lord Cullen of Ashbourne

We are dealing with quite a number of amendments together. Perhaps I could speak first to Amendment No. 464. The water authorities' present statutory duty to "have regard to" conservation of landscape and wildlife, archeological sites and historic buildings, and so on, and the formulation of their proposals is extremely important. I agree with and sympathise wholeheartedly with the noble Lord's view that the water boards must take their conservationist responsibilities seriously. However, the Government think it is unreasonable to impose this new statutory duty upon them. Indeed, I believe that a duty to take steps to preserve natural beauty, to conserve nature and to protect archeological sites and historic buildings, when considering what they propose to do, would positively inhibit them in carrying out their prime function. It is the water authorities' main task to provide sufficient water for the needs of our population, to remove sewerage and to provide for its effective disposal.

The authorities have other important duties in the land drainage, river conservation and fisheries fields. Discharging these duties must entail from time to time the enlargement of existing reservoirs, the construction of new reservoirs or new treatment works and other forms of development. Although in considering such proposals the authorities must and do pay full regard to environmental considerations, it sometimes unfortunately happens that the appearance of the countryside is changed. However, this is not always harmful. In some cases, new reservoirs have been considered to be a positive improvement, certainly in the eyes of some people. If this amendment is passed, I suggest that its effect could be against the national interest by inhibiting the development of our water resources. At the very least, it would result in an increase in the costs of water authorities, which in present economic circumstances clearly need to be contained.

Lord Melchett

If the noble Lord is leaving that point, could he deal with the point I made about the Forestry Commission? It seems to me that their actions in providing picnic places, in leaving deciduous trees along the sides of woodlands and allowing parts of their woodlands to be used for nature trails, picnic spots and so on, has been enormously successful. It has not detracted at all from their primary task, but they have been allowed to spend some money on ensuring that those kinds of activities can take place. I would have thought that my amendment would ensure that water authorities would be able to do the same thing and it would be equally valuable, in the long run, from their point of view.

Lord Cullen of Ashbourne

I think that is a perfectly fair case, but I do not think that it really changes what I said in my reply to the noble Lord.

Lord Melchett

Can the noble Lord confirm that water authorities are able to spend money in that way?—because the experience seems to be that when water authorities propose new schemes—and I agree with a reservoir but I think that is rather a different case—which are major new drainage schemes, for example, they will occasionally include in the original proposals some figure for landscaping or amenity. That always gets left out in the end because if money is spent in that way the proposal becomes not cost-effective. This amendment, by ensuring that they had a positive duty to spend money and that they were enabled positively to spend money in that way, would overcome that problem.

Lord Donaldson of Kingsbridge

Before the noble Lord speaks again, he did say that the water authority must pay attention to conservation, and so on, in its works. In what sense must it do that?

Lord Winstanley

Again, before the noble Lord replies—and I beg his pardon for delaying his reply—I think that the waters (and we are talking about waters) have been a little muddied by the recent comment by the noble Lord, Lord Melchett, with which I agreed, when he referred very clearly to the enormous amount of very valuable work which has been done by the Forestry Commission with regard to the provision of recreational opportunities. I hasten to say that there are some regional water authorities which have done likewise. The record varies from area to area, but in certain areas there is not the slightest question that regional water authorities have provided quite marvellous recreational facilities in the countryside for many people.

But the point that I want to put is that there is nothing whatsoever in this amendment about a requirement to provide recreational facilities. Had there been, that would have been relevant. This is dealing with an added responsibility for conservation. I agree with that, and I support the noble Lord, Lord Melchett, on it. But I would also support him were his amendment to do the kind of things which he seemed to be implying it actually does do, but which I am quite sure he would agree with me it does not do at all. I think that that was a red herring.

Lord Inglewood

May I ask for an explanation before the noble Lord replies? In the North-West area, we have had trouble over generations because of Lake Thirlmere, which is a very important reservoir. There has been, on the part of all the nature and amenity organisations, a wish that the public should get greater access and greater enjoyment from what could be a wonderful asset. We are always hearing about jam tomorrow, but we never have jam today. Will this amendment give us jam today?

The Earl of Avon

It might be helpful if I draw attention to Section 22 of the Water Act 1973, which specifically lays down the duties with regard to nature conservation and amenity. It reads: In formulating or considering any proposals relating to the discharge of any of the functions of water authorities, those authorities and the appropriate Minister or Ministers shall have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest, and of protecting buildings and other objects of architectural, archaeological or historic interest and shall take into account any effect which the proposals would have on the beauty of, or amenity in, any rural or urban area or on any such flora, fauna, features, buildings or objects. Subsection (2) goes on to spell it out in a little more detail. I think our case is that we do not honestly think we ought to ask the water authorities to do more than that. But this debate will have been extremely useful in bringing the attention of the water authorities to the feeling of this Committee on conservation.

Lord Cullen of Ashbourne

Perhaps I may add one word. The noble Lord, Lord Melchett, asked me whether the water authorities have power to spend money on these water conservation measures. The answer is that they have.

Turning to Amendment No. 465, which deals with land drainage, I had been all prepared to resist this amendment. But to reply as shortly as I can, I was very impressed with the argument that the noble Lord made, so I should like to take this back and look at it again.

I do not feel the same about Amendment No. 466A. When the Secretary of State makes appointments to water authorities, he is obliged by the Water Act 1973 to choose people who appear to him, to have had an experience of, and shown capacity in, some matter relevant to the functions of water authorities". The conservation of natural beauty and wildlife are relevant matters, since authorities are obliged to have regard to them under Section 22 of the Water Act 1973, and under Section 11 of the Countryside Act 1968, when exercising their functions. The proposed amendment requires only familiarity with the need to conserve natural beauty and wildlife in the authority's area.

I think it would be quite wrong to make such familiarity a precondition of appointment in every case. It might, for example, debar the Secretary of State from appointing someone who is well qualified for the water authority's main functions, but who has no previous familiarity with the conservation needs of a particular area. The Secretary of State must appoint the most experienced and capable people that he can get in the main aspects of the water authority's work—water supply, drainage, sewerage and so on.

He fully expects the authorities to be familiar with the landscape and conservation needs of their area. They are statutorily obliged to have regard to them under the provisions that I have mentioned, and there is no reason to think that authorities do not take this duty seriously. The members are bound to become well versed in these matters in the course of their work, even if they are not so familiar before being appointed. We cannot accept that the Secretary of State's freedom of choice should be statutorily limited, as in this clause, so I would ask the noble Lord not to press the amendment.

Lord Melchett

Either I drafted the amendment wrongly or the noble Lord misunderstood it. My intention was that there should be one or two people on the water authority who were knowledgeable about these matters, not that every single one should be. I think I understood from the noble Lord's reply that he was assuming that I intended that everybody on a water authority should be an expert on nature conservation, which I had not intended—

Lord Cullen of Ashbourne

That is that the amendment actually says.

Lord Melchett

I am not sure that it does, but I shall have to have another look at the Water Act, because I thought that that section of the Act listed a number of areas in which members would have expertise, and this would be one of them. It does not say "All the members"; it just says, Members appointed by the Secretary of State … who appear … to be familiar". I am not sure that the noble Lord is interpreting my amendment correctly. But maybe I can leave it at that and look at what he has said.

Perhaps he could just reconsider the point of whether it would be useful to have one or two people—the noble Lord is nodding, so I take it that he will—with expertise on nature conservation on the water authorities. Amendment No. 465 is by far the most important. I am grateful to the noble Lord for saying he will consider that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 465 not moved.]

6.37 p.m.

Lord Melchett moved Amendment No. 466:

After Clause 36, insert the following new clause:

("Amendment of Countryside Act 1968.

The Countryside Act 1968 is amended in section 2(8) by substituting for the words "for encouraging a proper standard of behaviour on the part of persons resorting to the countryside" the words "and for explaining to people visiting the countryside their rights and how they can avoid damaging the areas that they visit".")

The noble Lord said: This amendment is on another point, although a minor point. The wording in the Countryside Act about, encouraging a proper standard of behaviour on the part of persons resorting to the countryside seems to me to be an anachronism. It seems to me that what the Countryside Act should be doing is encouraging the Countryside Commission to explain to people both their obligations when they visit the countryside, and their rights.

In my own experience, both as a walker on long-distance footpaths and a camper, and also as a farmer having people visit my own farm to camp or picnic on it, a great many of the problems which visitors occasionally cause in the countryside stem from the fact that they do not really know what they are allowed to do, any more clearly than they know what they are not allowed to do. For example, it should be explained to people in the Country Code that they are allowed to walk down public footpaths, but not across fields with crops growing in them, and that they are allowed to park in some areas where it says that they may do so but not anywhere they can pull off the road:

In other words, if there were a balance in the explanation between what people could do in the countryside, what their rights were and what they were able to do without upsetting or offending any farmer or landowner, as against what they should not do—which is what the Country Code is concerned with—then it seems to me that those visiting the countryside, either for the first time or more regularly, would go with a much more reasonable understanding of what they could or could not do, and of what the countryside had to offer them, which is, after all, a very great deal. I hope that that brief explanation will allow the Government to accept this small amendment. I beg to move.

Lord Craigton

I rise to support this amendment. I think that the wording suggested is a great improvement. It is in tune with the times and is what is needed, so I hope that my noble friend will accept it.

Viscount Massereene and Ferrard

I, too, support the amendment. Some tourist information offices are good about this, but many are very slack in explaining to tourists who wish to ramble through the countryside what they can and cannot do.

Lord Cullen of Ashbourne

I feel that I can deal more easily now with the amendment than before I heard what the noble Lord had to say about it. I was far from clear about the purpose of the amendment. It appeared to be taking away the Countryside Commission's duty to encourage a proper standard of behaviour and to replace it with a duty to take steps to tell visitors their rights and explain how to avoid damage. What I can see the noble Lord really means is that they should be doing both. I think I am right in saying that the way the amendment is drawn removes from the commission one job and gives them another. As I do not think that we want to take away the job which they are now doing very well—stopping people leaving gates open and so on—it would be wrong of me to accept the amendment, which I do not think does what the noble Lord really wants. Perhaps he would consider withdrawing the amendment, so that we may think about whether there is anything we can do at the next stage.

Lord Melchett

I had intended to replace "encouraging a proper standard of behaviour", which seems to me to have connotations which are a little old-fashioned, to put it mildly—my noble friend Lord Donaldson of Kingsbridge says "governancy", which is a better way of putting it than I could have thought up—with telling people how to avoid damaging the areas which they visit. That is what landowners and farmers are interested in. They want people who visit the countryside to know how to avoid doing damage: not to walk across growing crops, not to leave gates open, not to start fires. It seemed to me to be a much more direct and precise way of putting it. From the farmers' and the landowners' point of view they should be told how to avoid doing damage, and from the visitor's point of view they should be given information, which seems to have a good deal of support, about their rights.

Baroness White

For once I have considerable sympathy with the Government Front Bench. It seems to me that one needs both. I speak as a citizen of a small country which in certain parts is absolutely invaded by people who come to the countryside and behave in a way which is bound to cause intense irritation to those who live there. An example I could give is the Aran mountain area of Wales. Persons from outside that area have issued a guidebook for those who wish to walk, rock climb and so on which disregards the convenience or the rights of those who live and work in that area—without a by-your-leave and after no consultation with them. They were made welcome when they first came but they have caused such irritation—more than that, real bitter anger at the inconsiderate way in which they have behaved.

It is not only a question of physical damage; it is more than that. If you come to a place and without any regard walk through Farmer Jones' farmyard as though it belonged to you, without a by-your-leave or anything, without common courtesy—behaviour may be out-of-date these days; I am afraid I am older than my noble friend—it is bound to cause resentment. The people in these areas are very often leading quite a hard life. The upland farmer does not have an easy life. Therefore, I hope one can find a happy, felicitous combination of the sentiments embodied in these words.

Lord Renton

It follows from what the noble Baroness, Lady White, has said that if we are to refer to the rights of people visiting the countryside we should also refer to their duties. This amendment does not do so, but in further thoughts about it I hope that it will.

Lord Melchett

I wonder whether I may cut things short; it does not seem to be a point upon which we should spend too much time. There has been a great deal of support for the idea which I support and which I had intended to put into the amendment but obviously have not got right: that there should be two balancing things; namely, the obligations of people visiting the countryside and their rights. I think my noble friend was saying that there are obligations to behave in a way which does not disturb or upset local people. Perhaps the noble Lord could look at that point, which obviously is not adequately covered by the amendment. If he will agree to do that, I shall happily withdraw it.

Lord Winstanley

Before we leave the matter, it seems to me that in supporting the amendment the noble Lord, Lord Craigton, did so because he felt that the original wording of the 1968 Act was no longer in tune with what is actually happening. I entirely agree with him. Whether this amendment improves that wording I am not quite so sure, but the whole point is that if you take the wording of the 1968 Act—a duty to encourage a proper standard of behaviour on the part of persons, and so on—there are different ways in which that can be done.

Whenever I speak I seem to cause the noble Lord the Chief Whip opposite to twitch. I am wondering whether I ought to go and get him a prescription. I assure him that I shall not be very long. I am merely saying that nowadays the national park authorities, committees and boards and the Countryside Commission endeavour to achieve harmony between those who visit the countryside and those who live and work there by a much more permissive and persuasive method than by merely putting out rules and prohibitions. By providing proper information we feel that we can often get people to learn to behave properly. I agree with the noble Lord, Lord Craigton, that the original wording is not very happy and in tune with what happens and that perhaps it ought to be looked at again.

Lord Craigton

If you add both together you have a perfect combination.

Lord Denham

I must apologise for twitching at the noble Lord, Lord Winstanley, and I should be very grateful for his prescription. I should like him to write on it, in words slightly more legible than those which most doctors normally write, that speed is of the essence for this Bill and that we must get through it quickly. We must finish it this week.

Lord Donaldson of Kingsbridge

The quickest way is occasionally to accept an amendment.

Lord Cullen of Ashbourne

I accepted an amendment a moment ago and I have just said that I would like to look again at this one, but everybody has been talking ever since I said so.

Lord Melchett

I am very grateful to the noble Lord. I beg leave to withdraw the amendment, as I tried to do earlier.

Amendment, by leave, withdrawn.

[Amendment No. 466A not moved.]

Schedule 11 [Provisions with respect to the Countryside Commission]:

6.47 p.m.

Baroness David moved Amendment No. 466B:

Page 74, line 7, leave out sub-paragraph (3) and insert— ("(3) The Commission shall ensure that terms and conditions applying to their employees are, taken as a whole, not less favourable than those applying to the Civil Service.").

The noble Baroness said: It might save the time of the Committee if I spoke to Amendments Nos. 466B and 466C at the same time. They both have to do with giving reassurance to the staff of the Countryside Commission when the role of the Commission is changed and it becomes a different body from what it is at the moment. Amendment No. 466B says: The Commission shall ensure that terms and conditions applying to their employees are, taken as a whole, not less favourable than those applying to the Civil Service". Those words are inserted instead of lines 7 to 13.

We are seeking the amendment because the assurances given in paragraph 8(3) of the schedule do not provide sufficient protection. It states that for those former civil servants employed on duties reasonably comparable to those performed before the schedule became effective, the terms and conditions of employment, taken as a whole, should not be less favourable than those previously enjoyed. This provides no protection for any ex-civil servant who has a substantial change made in his duties or grade. Examples of this would be persons transferred at management's decision from one form of work to another, such as a specialist transferred to administrative work, persons who are successful in being promoted within the new Countryside Commission and staff whose duties are altered because of policy changes arising from the decisions of commissioners once the legislation is passed. The amendment we seek would go some way towards tying the commission's terms and conditions to those in the Civil Service.

Amendment No. 466C would add, after line 4, a new paragraph, numbered 11. The amendment is sought in order to oblige the commission to consult its employees, through their trade unions, on terms and conditions of employment and to provide channels to arbitration in the event of there being disagreements. The Countryside Commission currently has a local Whitley Council and the staff are represented through the Civil Service unions to the departmental Whitley Council in central DoE, and ultimately through the trade unions to the national Whitley Council machinery. We are seeking to ensure that future commissioners feel bound to maintain the good industrial relations practices which have operated hitherto. This is important, as all those agreements negotiated through the national and departmental Whitley machineries within the Civil Service, such as redundancy agreements, promotion arrangements, accommodation standards, et cetera will all lapse when the schedule comes into force, and therefore need to be the subject of agreement between the Commission and the staff employed therein and the trade unions that represent them. There is ample precedent of Ministers in the past seeking to ensure that good industrial relations practices continue by inserting clauses on consultation procedures within legislation which is hiving off civil service staff to newly formed public bodies. A clear example would be the Airports Authority Act 1965, Schedule 1, paragraph 10. This is precisely the paragraph that we are now seeking to introduce into Schedule 11 to the Wildlife and Countryside Bill. Additionally, similar protective paragraphs appear in the Civil Aviation Act, Schedule 1 and they have also been incorporated in the legislation forming the Atomic Energy Authority.

I hope the Government will be able to accept these extremely reasonable amendments and give the staff of the Countryside Commission the reassurance for which they are asking. I think it is understandable that there may be a little anxiety because the staff have been very much reduced in numbers just recently. In 1979 the staff was increased to 124 for the regional offices to be opened, which have been very successful. The aim was to increase the complement to 150. But there has been a reduction, first to 117, and now to 106, and there is fear of further reductions to 100. When the Commission assumes its status as a grant in aid body there will in fact be more work involved. So I hope the Government will be understanding about these amendments and will feel able to accept them. I beg to move.

The Earl of Avon

Speaking first to Amendment No. 466B, as the noble Baroness pointed out, this would delete the existing sub-paragraph (3) and insert a new sub-paragraph in its place. The Government think that the existing sub-paragraph (3) provides a clear, no worsening guarantee, for any person who is transferred from the Civil Service to the employment of the Commission on the appointed day, provided of course, as the noble Baroness pointed out, that he continues to be engaged on reasonably comparable work. The effect of the amendment would be to link the terms and conditions of service in the Commission with those prevailing in the Civil Service for all staff and for all time. The Government believe that it would be quite wrong to tie the hands of the Commission in this way. I think that is where I differ from the noble Baroness. The existing sub-paragraph is in a standard form and has been applied in other cases where civil servants have been transferred to the employment of an independent body, and the Government can see no grounds for making a change.

Baroness David

Would the noble Earl allow me to ask whether he can cite some cases where this same paragraph has been used?

The Earl of Avon

Perhaps I shall be able to in one second, and in the meantime I will get on to the other amendment. That concerns consultation and the Government fully accept the need for regular consultation between management and unions as part of good industrial relations practice. However, we are not persuaded by the precedents which in fact the noble Baroness has cited, that it would be either necessary or indeed right to include in the Bill specific provisions on the lines proposed in the amendment. For one thing, it is not easy to see how the provision for arbitration operates in relation to a requirement for approval of levels of remuneration by the Secretary of State and the Minister for the Civil Service contained in paragraph 8(2) of Schedule 11.

I may add that, as my right honourable friend the Secretary of State for Employment has made clear in another place, it is the view of the Government that, except in special circumstances, arrangements for arbitration should provide for access to arbitration only with the consent of both parties to a dispute. The present commission already has established machinery for discussion with the unions and I have no doubt that this will continue to operate after the change in status. We believe that it is quite unnecessary to make further detailed provisions for these matters in the Bill.

As I suspect the noble Baroness has seen, an example has come to me in connection with Amendment No. 466B, which is the Crown Agents Act 1979.

Baroness David

I should like to study the Minister's reply with care because this is an important matter and I am not quite sure whether sufficient reassurance has been given. I will study the reply, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David had given notice of her intention to move Amendment No. 466C:

Page 75, line 4, at end insert—

(". It shall be the duty of the Commission, except so far as it is satisfied that adequate machinery exists for achieving the purpose of this paragraph, to seek consultation with any organisation appearing to the Commission to be appropriate with a view to the conclusion between the Commission and that organisation of such agreements as appear to the parties to be desirable with respect to the establishment and maintenance of machinery for:

  1. (a) the settlement by negotiation of terms and conditions of employment of employees of the Commission, with provision for reference to arbitration in default of such a settlement in such cases as may be determined by or under the agreements; and
  2. (b) the promotion and encouragement of measures affecting the safety, health and welfare of employees of the Commission and the discussion of other matters of mutual interest to the Commission and its employees including efficiency in the performance of the Commission's functions.").

The noble Baroness said: I have already spoken to this amendment, but I do not wish to press it.

Baroness David had given notice of her intention to move Amendment No. 467:

Page 75, line 34, leave out from ("include") to the end of line 39 and insert—

  1. ("(a) a statement of the action taken by the Commission to promote the enjoyment of the countryside by members of the public who are disabled; and
  2. (b) a record of all questions with which the Commission have been concerned during that year and which appear to the Commission to be of general public interest, indicating the purport of any representations or recommendations made by the Commission with respect thereto, and the conclusions (if any) reached thereon.").

The noble Baroness said: I spoke to this amendment when I spoke to Amendment No. 444, but I do not wish to press it.

Schedule 11 agreed to.

Clause 37 [Powers of entry]:

[Amendments Nos. 467A and 467B not moved.]

6.57 p. m.

Baroness Elliot of Harwood moved Amendment No. 468: Page 32, line 29, after ("occupier") insert ("and owner").

The noble Baroness said: I will move this amendment quite shortly. Clause 37(3)(a) says: 24 hours notice of the intended entry has been given to the occupier",

and I should like to see added the words "and owner" because it seems to us that it is just as important for the owner as for the occupier to know if the land is going to be designated as an SSSI, or indeed anything else. Therefore, we feel it is only fair that the owner should also be mentioned in this clause. The occupier might be a tenant—he probably would be a tenant and he would almost certainly know who the landlord was and would be able to inform anyone who wanted to know. Equally I think it should be the job of the person initiating this inquiry to find out who the owner is, and we would like to see the words "the owner" added. I beg to move.

Viscount Massereene and Ferrard

In my opinion it would often be the case that it would be more important for the owner to know, depending upon the tenancy. The owner can easily be found. The occupier will obviously know who the owner is, or at any rate he will know the owner's agent and the agent will know where the owner can be found. So I hope the Government will accept this amendment.

Lord Cullen of Ashbourne

I fully understand the point made by my noble friend, but the difficulty arises when something urgent has to be done. If I may just go through the argument, the purpose of giving notice of entry to the occupier of the land is because he, as occupier, would need to let the authorised person on to the land and suffer any immediate inconvenience there may be. The owner will of course get the notice where he is also the occupier.

Entry to land for the purposes in Clause 37 may be needed very quickly. We have made it clear that we do not intend to make any compulsory notification order in respect of Exmoor while the voluntary agreement entered into between the National Park Authority, the NFU and the CLA continues to operate successfully. But if the voluntary agreement ever breaks down, what happens then? Although we hope this will never occur, there would be a need for urgent action if an order were to be made in time to delay some operation which the occupier intended to carry out.

If we were to insist that entry must be postponed until the owner is informed, and if his name and address were not readily available or he might be abroad, as may be the case, we should be introducing a factor which could delay the making of a notification order and enable the occupier to carry out the operation the notification order would have been designed to forestall. That would frustrate the purpose of Clause 33, and I really could not accept it.

Viscount Massereene and Ferrard

There are telephones. The owner might be in Australia, but you can telephone Australia; it only takes two or three minutes.

Lord Cullen of Ashbourne

Not everybody has an agent, and it may be very difficult to find out where the owner is. The occupier, of course, is easy, but the owner could well be away in Australia.

Lord Renton

Bearing in mind that my noble friend Lord Cullen of Ashbourne has pointed out that this procedure is needed in urgent cases, I wonder whether I may ask him what is to happen if the occupier is away ill in hospital or maybe on holiday; even farmers sometimes have holidays. Would it not, therefore, be a good thing to consider putting the words "occupier or owner", because it is essential that one or other of them should be notified in these urgent cases. On the Bill as drafted and in the light of what the noble Lord has said, it may well be that the whole thing be frustrated by the occupier not being available.

Lord Cullen of Ashbourne

I think if the occupier was doing something he is not supposed to do, he must be there or he would not be able to do it.

Viscount Massereene and Ferrard

His employee might be doing it.

Lord Cullen of Ashbourne

I must agree with that. I can see that nobody is really very happy about this. I will tell your Lordships what I will be prepared to do, which is to go part of the way to a halfway house, and consider putting down an amendment at Report stage along the lines that the owner as well as the occupier must be given 24 hours notice of entry only where the purpose is in connection with compensation. What one could not do is to do that in the case of something which needed urgent action. I do not know whether that would help the Committee.

Lord Avebury

That does not seem to me to cover the point made from the Benches behind the Minister, that acts may be done by servants of the occupier or owner and the authorities cannot serve a notice on the occupier, and therefore they are unable to enter on land to put a stop to those activities. I think some further thought is required on the whole clause.

Baroness Elliot of Harwood

I have listened to the Government's reply. I am afraid I think it is not good enough. I cannot understand why you should not have the "owner and the occupier" or the "owner or the occupier". There will be far more delay if one or other of them takes great exception to what is being done and takes the matter to court. It would be infinitely better to get the goodwill of both sets of people. I would have thought it would be perfectly simple to add, either, as Lord Renton suggested, "or owner" or put in "occupier and owner", as long as it is not just the occupier because that seems to me too silly; one would be dealing with only one side when one wants to get the goodwill of everybody. I will withdraw the amendment, but I think the Government should look at this because it seems to me it is wrong.

Lord Cullen of Ashbourne

I am grateful to my noble friend for withdrawing the amendment. We will certainly consider whether "owner or occupier" would not be an improvement.

Lord Houghton of Sowerby

I think this amendment is a waste of time. There are more obscurities about ownership today than ever I remember. If owners want to have their rights respected they should be more forthcoming in saying who they are. Many people do not know who their own landlords are. In these circumstances it is a lot of rubbish to talk about the owner being notified with a view to being able to do something.

Amendment, by leave, withdrawn.

[Amendment No. 468A not moved.]

Clause 37 agreed to.

Lord Melchett moved Amendment No. 469:

After Clause 37, insert the following new clause:

(". The Secretaries of State shall submit to Parliament each year a report on the way they have fulfilled their obligations under section 11 of the Countryside Act 1968 to have regard to the desirability of conserving the natural beauty, amenity, wild flora, fauna, geological and physiographic features of the countryside and steps which have been taken to modify their actions as a result.").

The noble Lord said: This is a simple and straightforward amendment. I should say straight away, in case anyone from Scotland should take exception, that I intended that the amendment should cover the Secretary of State for Scotland, but it does not because I have got the wrong Countryside Act and the wrong section. If it were to cover the Secretary of State for Scotland it would need to refer to the Countryside (Scotland) Act 1967 and to Section 26 of that Act. I hope the noble Lord on the Front Bench opposite who is to reply will allow me to speak to an amendment which would cover the Secretary of State for the Environment in England and the Secretary of State for Scotland, and possibly it might be desirable to include in this the Minister of Agriculture; I would welcome the Government's view on that.

The amendment would require the Secretaries of State to submit to Parliament each year a report on the way they have fulfilled their obligations under Section 11 of the Countryside Act. This was something which was looked at by the Countryside Review Committee, which was a committee composed of officials from all Government departments which produced a series of reports, I think most of which were not all that favourably received by most interests and I understand that was also the reaction of the present Government to some of their recommendations. Nevertheless, a lot of very useful work was done by representatives of all the departments and of the Nature Conservancy Council and the Countryside Commission.

It seemed to me, in reading those reports, that of all the things they suggested this was one recommendation which would be uncontroversial and which would be acceptable; first, because it has been recommended by all departments concerned, and, secondly, because it would not place a very onerous duty on the Secretaries of State, who are presumably at present very much aware of their obligations under Section 11 and are ensuring that they do all they possibly can to carry out those obligations.

Section 11 of the Countryside Act is very wide-ranging and lays a general duty on the Government Ministers to take account of the interests of the countryside. I am afraid that, while a valuable provision in itself, it is something which has been not felt to be very valuable in practice; in other words, there is a feeling that this general sort of duty being placed on Ministers can be safely ignored by anyone concerned as soon as it appears in an Act of Parliament. I am sure that was not Parliament's intention and I am sure that is not the way Ministers view it, but I am afraid that is the way it tends to be seen by the general public. I have no doubt that for that reason this group of officials felt it would be helpful to have a report presented to Parliament, available to the public, so that everyone would know how Ministers had taken into account Section 11 and what action they had taken as a result. I hope this is not something which would cause problems. I beg to move.

The Earl of Avon

The Government, of course, recognise and indeed sympathise with the objectives of the amendment. The duty laid upon Ministers and others by Section 11 of the Act of 1968 is a most important one and my colleagues in Government are firm in their determination to abide by that duty. I find it slightly difficult to introduce accountability in the form of an annual report to Parliament, in that I would have thought the Secretaries of State were in any event accountable to Parliament. The idea of producing an annual report on what they do strikes me as being slightly strange. I have not got the background the noble Lord produced for me, so I would like to look at this again. I am not terribly hopeful for that reason, but I will investigate it and let him know how far I can go.

Lord Melchett

It is my experience that a committee composed of civil servants never recommends something unless it has numerous precedents. I am certain this does have numerous precedents. Also they do not recommend such a thing unless it is highly uncontroversial and not likely to upset anybody. I hope the noble Earl will find it is a good deal easier for the Government to accept than he originally thought. I am grateful to him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 [Interpretation of Part II]:

[Amendment No. 469A not moved.]

The Deputy Chairman of Committees (Lord Nugent of Guildford) : The next amendment is Amendment No. 470. I should tell your Lordships that I have received a manuscript amendment to that amendment, so that it now reads:

"Page 32, line 39, at end insert—

("land" includes land not more than three miles outside the low water mark.").

Lord Craigton moved Amendment No. 470, as amended by the manuscript amendment:

Page 32, line 39, at end insert—

("land" includes land not more than three miles outside the low water mark.").

The noble Lord said: The noble Earl in answering the first of these two amendments which I discussed together told me that "'flora and fauna' include any other living thing" was incorrect and so to make it easier for the draftsman I have deleted those words. I beg to move.

On Question, amendment agreed to.

[Amendment No. 470A not moved.]

The Earl of Avon moved Amendment No. 471:

Page 32, line 43, at end insert—

("( ) References in this Part to the conservation of the natural beauty of any land shall be construed as including references to the conservation of its flora, fauna and geological and physiographical features.").

The noble Earl said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 471A not moved.]

7.12 p.m.

On Question, Whether Clause 38, as amended, shall stand part of the Bill?

Lord Melchett

This clause deals with the interpretation of Part II and I hope that it will not be stretching your Lordships' patience too much if I say, when we are looking at Clause 38, that it seems to me as a result of our deliberations in Committee so far, particularly on Clauses 26 and 33, that it would really be a stronger Bill if we did not have Part II in it at all, and that would remove the need for the interpretation which is currently in Clause 38.

I say that simply because the voluntary conservation movement as a whole were unanimous in their view before the Bill was presented to Parliament that if Clause 26 remained unamended, as it has done during the Committee stage, it would substantially worsen the position so far as the conservation of natural habitats is concerned, compared with the position before the Bill was introduced. It would do that because it would appear to give protection to 30 or 40 sites which would not actually be protected. As we pointed out when we came to that clause, the NCC in practice does not use its compulsory purchase powers, and that is the only mechanism which the Bill provides for protecting natural habitats.

Secondly, it would worsen the position because, having created a top tier of 30 or 40 sites the voluntary conservation movement's view—and it seems to have a good deal of support in your Lordships' House—is that the rest of the sites of special scientific interest would be seen as much less important than they are now and we would simply have an open season on them and they would be destroyed not at the rate of 10 per cent. as they were last year but at a much higher rate in years to come. I hope that the Government when looking at various points on Part II will seriously consider deleting it altogether if they are not able to go further than they have done on Clause 26, because I think that it would be a better Bill without it unless we can see some serious improvement to Clause 26.

I know that the Government have agreed to look at one of the amendments of the noble Lord, Lord Craigton, which was the one which introduced an order-making power. They have not agreed to look, as yet, at the amendment which suggested that there should be notification from landowners to the NCC if they were going to carry out something that would damage a site. I know that there will be discussions between now and the Report stage, but I hope that the Government will bear in mind the considered, serious view of those who are interested in wildlife and the countryside: it is that at the moment they have a Bill which aims to protect those things but that those who take the view that they need such protection feel that we would be better off without the Bill. That is a serious charge to make against a Government Bill and it is the first that we have ever had, as far as I know, on this subject. But it is a charge which is made in all seriousness and I hope that it is something that the Government will be able to consider before we come back to Part II on Report.

Lord Craigton

The noble Lord opposite has been speaking not from the Opposition Front Bench but as chairman of the Link Committee of CoEnCo on behalf of all the conservation bodies. We have been desperately unhappy throughout the Bill. We feel that we have achieved absolutely nothing. People are asking me about bats, SSSIs and where we are going to finish up. We have a very serious and perfectly genuine worry and I echo every word that the noble Lord, Lord Melchett, has said.

Baroness White

I should also like to add my voice. I see the noble Lord, Lord Bellwin, on the Front Bench and we are delighted to welcome him on the Front Bench. His name appears on a number of amendments and I hope that he will take this matter seriously as well as the noble Earl, Lord Avon, who has had to do most of the work on the parts of the Bill which I have attended at any rate. We really believed that we were to have some advance from the Government on Clause 26. Unless we get some advance it will be a great disappointment to all those who put in such a tremendous amount of voluntary work in protecting both wildlife and the countryside.

We have made it absolutely clear that unless we protect the habitats, the various other measures in the Bill will be of no avail. I plead with the noble Lord, Lord Bellwin, to recognise that there is very strong feeling that the Bill will not do what we have been waiting for. Many of us have been saying, "Well, at least we shall have new legislation". I was one of those on the committee which discussed the 1968 Bill. Had I known then what I have learnt during the intervening period, the 1968 Bill would have been a better Bill. But it was not; things were needed and we all looked forward to them. We have been looking forward for several years to this legislation. We are being given a very dusty answer indeed. As we leave Part II of the Bill, at any rate at the Committee stage, I would urge the Government to take the matter more seriously than they have done so far.

The Earl of Avon

I take most of the points which have been made, but I did not like the reference to "not seriously". We have taken the matter very seriously indeed. We have worked very hard on Part I of the Bill and then we have come on to Part II where we have had difficulty with Clause 26. I fully take on board the remarks of the noble Lord, Lord Melchett. We have taken the matter back and we are at present looking at it again. I should perhaps say as the NCC are our advisers, that we have had a letter from them with today's date on it and which bears in mind what we might call the "recommendations" following a press notice which they released slightly prior to the recommendations coming in. That will, of course, be taken into account as our advisers' advice.

I think that we have had a good debate. We have learned a lot as regards Part II and, please, we have taken everything seriously. We have the matters fully in mind and I have frequent meetings with my Secretary of State about them and all departments of my own department have taken note of the matters. In view of that, I hope that the clause will stand part.

Lord Winstanley

I listened to the noble Earl most carefully and I understood him to say that he fully understood and that he would see to it that it was understood that there was grave anxiety about Clause 26. He made no mention whatever of Clause 33. Is he aware that the anxiety about Clause 33 is equally grave and very similar to the anxiety about Clause 26?

The Earl of Avon

I take the point of the noble Lord, Lord Winstanley. Of course Clause 33 catches us a little on Government policy, which I explained when we went through Clause 33. Equally, of course, we had a vote on the matter and the voting figures will be taken into account.

Lord Melchett

I am grateful for that response. I am sure that the noble Earl is aware that the remarks that we made both now and at the end of our debate on Clause 26 were not directed to him personally but rather through him to others—both senior Ministers in his department and possibly more importantly junior Ministers in other Government departments, whose heavy hand I think we have felt on all sides of the Committee rather more frequently than maybe we would have wished. Again on all sides of the Committee we have been filled with nothing but admiration and gratitude for the way in which the noble Earl has been kind enough to deal with the many amendments which have been tabled.

Clause 38, as amended, agreed to.

Clause 39 [Duty to keep definitive map and statement under continuous review]:

7.20 p.m.

Lady Kinloss moved Amendment No. 472: Page 33, line 9, leave out ("section 43(2)") and insert ("subsections (1A) and (2) of section 43").

The noble Lady said: I beg to move Amendment No. 472. I should also like to speak to Amendment No. 512. The intention of these amendments is merely to seek to clarify the Bill; they do not seek in any way to alter the intentions of the Bill. Clause 39(1) defines "definitive map and statement" as being either the latest revised definitive map and statement where this exists or, where there is no map at present, a new map to be produced for any area except inner London. Clause 39(2) requires surveying authorities of county and London borough councils to keep the definitive map and statement under continuous review and to make amendment orders as necessary to keep it up to date.

In Clause 43(2) there is a provision for the authority to produce a completely new map incorporating all the changes which have been made, and this will then become the "definitive map and statement" for the purposes of Clause 39. What is not clear from the Bill, however, and what Amendments Nos. 472 and 512 seek to clarify, is whether or not the modifications to the map and statement brought about by the making of amendment orders under Clauses 39, 40 and 41 will themselves form part of the definitive map and statement. This point is of importance for two reasons.

Clause 42 is about the conclusive evidential effect of the showing of a path or way on the definitive map. It re-enacts Section 32(4) of the National Parks and Access to the Countryside Act 1949, which provides that when a public right of way is shown on the definitive map, that in itself is conclusive evidence of the public's right to use that path or way. If there should be any dispute about the status of a path, it can easily be resolved by reference to the definitive map, and the map may be produced in court as evidence of the public's right. This provision has been of immense value to all those who use public rights of way. It follows that it is very important for these evidential provisions to apply quite clearly to any modifications which are made to the map and statement by means of the new types of orders created by the Bill.

No less important is for the public to be able to see the up-to-date position. Clause 43(4) re-enacts the existing legislation, contained in Sections 32 and 38 of the National Parks and Access to the Countryside Act 1949, which provides for definitive maps and statements to be made available for public inspection free of charge in every county and district. This provision has also been of considerable value to the public and it is obviously very important that these maps should be kept up-to-date with changes as they occur. To sum up, the amendments do not in any way seek to alter the intentions of the Bill. They merely seek to clarify those intentions and avoid the possibility of legal argument over the point at some future date. I beg to move.

The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)

I wonder whether the noble Lady may have misunderstood the effect of the Bill's provisions because I respectfully submit that there is, indeed, no need for provision of the kind contained in the amendment. The effect of the Bill is such that whenever a modification order is made the definitive map and statement are modified immediately it takes effect. In so far as the amendment is intended to secure that a fresh map and statement are produced each time a modification takes effect, I do not think that it actually achieves this result. However, Clause 43(2) of the Bill deals with this situation by empowering surveying authorities to prepare copies of maps and statements, as modified, when it appears expedient to do so.

Having regard to the cost, it would be impracticable to require—and I suspect that the noble Lady is not calling for this—that a fresh map and statement should be prepared every time the map and statement are modified. To put it slightly differently, the fact is that when an order is made modifying a map and statement—I repeat, the moment the order takes effect—they remain the definitive map and statement for the area in question until replaced by a copy of the definitive map and statement, as modified, prepared under Clause 43(2). That copy is then required to be regarded as the definitive map and statement. With that clarification, I wonder whether the noble Lady will feel able to withdraw the amendment.

Lord Melchett

I should like to ask the noble Lord a question. I was trying to follow that, but I am not sure that I succeeded. Was he saying that when the definitive map needs to be amended a copy will be made with the amendment on it and that it will be that copy which will be used for evidential purposes and be available for inspection by the public? Presumably copies will then be amended as each amendment to the definitive map is made. Is that right?

Lord Bellwin

That is my understanding of the position.

Lord Fletcher

It is most important in the public interest that we should be clear about this matter. I am not quite clear. It is not easy to follow this series of provisions, but I wonder whether the Minister can help us in this way. In parenthesis, may I say that some local authorities have been very defective in preparing quinquennial revisions. As I understand it, the object of this part of the Bill is to ensure that modifications shall be made continuously as and when evidence arises which requires a modification to an existing definitive map which has been published and circulated. Presumably, therefore, there will be a whole series of modifications to a particular map before a new map is prepared for the public. It will not be altogether easy for members of the public to familiarise themselves with the modifications that have been made. Perhaps the noble Lord can help us on this.

In order that the public may have the fullest knowledge of modifications to definitive maps, can steps be taken to ensure that those modifications are available to the public, not only at the headquarters of the county concerned but also at other public places in the county, particularly in every district of the county which is affected? I appreciate that it may not be appropriate to require these particular modifications which apply to a particular locality to be made available throughout the county, but surely it is essential that they be made available in the locality where they are relevant. I should be grateful if the Minister could give us an assurance that this will be the case, whether or not this particular amendment is accepted.

Lord Bellwin

I hear with interest what the noble Lord, Lord Fletcher, says and I know that he will understand that we are now moving forward into a new situation, if I can call it that. As yet there is no precedent for the procedures about which we are talking. I should like to think carefully about the implications of what he said, particularly about making the map available at all points. I can think of snags. However, we ought to look at that. As regards the amendment as such, in view of what I have said I am sure that the noble Lady will not want to press it. But I shall certainly have a look at what the noble Lord said.

Lord Fletcher

I am much obliged to the Minister.

Lady Kinloss

I should like to thank the noble Lord the Minister for his explanation. I might wish to bring this forward again in a different way at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Bellwin: moved Amendment No. 472A: Page 33, line 28, after ("occurrence,") insert ("on or").

The noble Lord said: For the convenience of the Committee I should like to speak to Amendments Nos. 472A, 472B, 472C, 475A, 475B, 475C, and 476A together. These are all drafting amendments, most of which are intended to ensure consistency in the language of Part III. The substitution for "have been" of the word, "be", recognises the fact that the surveying authority is concerned with the present status of the highways shown in definitive maps and statements. I beg to move.

On Question amendment agreed to.

Lord Bellwin moved Amendment No. 472B: Page 33, line 36, leave out ("on") and insert ("in").

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 472C: Page 33, line 38, leave out ("on") and insert ("in").

On Question, amendment agreed to.

Viscount Hanworth moved Amendment No. 473: Page 34, line 3, after ("way") insert ("to which this Part applies").

The noble Viscount said: I think it would be for the convenience of the Committee if I speak to this amendment and Amendment No. 474, and part of what I am going to say also applies to Amendment No. 475. Amendments Nos. 473 and 474 seek to extend the coverage of this paragraph to include byways. The paragraph as it stands in the Bill in conjunction with Clause 39(2) provides that the surveying authority shall modify the definitive map and statement in consequence of an order or an agreement creating a new footpath or bridleway. The paragraph makes no provision to modify a definitive map statement in respect of a byway being created by agreement.

Presumably this paragraph was drafted on the asumption that because public path creation orders (Section 26 of the Highways Act 1980) only apply to the creation of footpaths and bridleways, and it was not possible to create a byway. This is incorrect. Under Section 30 in the 1980 Act they may be created by agreement. During a meeting with the DOE they agreed that it was possible, though unlikely, that a byway could be created. The paragraph, as amended, will read as follows: a new right of way to which this Part applies has been created over land in the area to which the map relates, …". By omitting the term, "public path", and inserting (a new right of way), "to which this Part applies", the paragraph will include creation agreements in respect of byways, bridleways and footpaths. The terminology has been adopted because it is used in line 16 on the same page of the Bill.

The reason for wanting to extend the paragraph to include byways is that it is theoretically possible to create byways by agreement and it would be unsatisfactory to exclude the ability to modify the map accordingly. It has been argued that in practice any agreement to create vehicular rights over land would only be made in respect of a road which would then be shown on the county road map as an unclassified county road, and not on the definitive map as a byway. Although this may be the usual case, there is a possibility of creating a byway in Amendments Nos. 556A and 556B whereby a byway, … means a path over which the public have a right of way for vehicular and all other kinds of traffic but which is mainly used for purposes for which footpaths or bridleways are so used". Rare as such an agreement may be, it seems sensible to include it in the Bill for completeness. I beg to move.

Lord Bellwin

The amendments are concerned to ensure that byways open to all traffic are covered in two places in Clause 39 where reference is currently made only to public paths—public paths consist, of course, of footpaths and bridleways. The objective is to enable definitive maps and statements to be modified by the addition of byways. Unfortunately, these amendments rest on a misconception, which I shall try to explain.

The first place where it is proposed to add a reference to a byway is Clause 39(3)(a)(iii), which is concerned with new rights of way created by an enactment, instrument or any other event. The creation of a new byway is an impossibility. Creation implies that something is brought into being for the first time, having never previously existed. This notion is reflected in the opening words of Clause 39(3)(a)(iii) which refer to "a new right of way". Byways can never—by virtue of the process by which they come to be shown on definitive maps—be new rights of way.

The archetypal byway is a former road used as a public path which has been reclassified as a byway in the course of a special review under the provisions of Part III of Schedule 3 to the Countryside Act 1968. As such, byways number amongst them some of the oldest rights of way of which we know, namely, the ancient "greenways" which have existed since time immemorial. It suffices to say that the expression byway open to all traffic is merely a new label for something old, and that it can never refer to a newly created right of way.

The other place where it is proposed to refer to a byway is Clause 39(3)(b), which deals with cases where a right of way is presumed to be dedicated after the expiration of a certain period of public use. The problem in this instance is that a byway is not a type of way that exists at common law, and it is impossible, therefore, for a byway to arise by presumed dedication. The types of way that exist at common law, and of which dedication can be presumed, are a footpath, a bridleway and a cartway or—as we now call it—a vehicular highway. A byway is a sub-species—if I may use that expression in relation to something that is neither an animal nor plant—of vehicular highway.

The factor that distinguishes it from the rest of the species has nothing to do with the rights the public may exercise over a byway, but only with the extent to which those rights are actually exercised. Thus, a byway is a vehicular highway which is used by the public mainly for the purposes for which footpaths or bridleways are used. This reflects the fact that byways result from the reclassification of roads used as public paths, and explains why a reference to a road used as a public path is incorporated in the definition of byway in the Bill—in fact, it is proposed to alter the definition of byway to refer specifically to the purpose for which they are mainly used. As I said a few moments ago, this distinguishing feature of byways has nothing to do with the public rights of way which exist over them, but only with the extent to which those rights are exercised. It follows that it is impossible to presume the dedication of a byway, since dedication is concerned with rights. If we were to consider extending the scope of paragraph (b) to cover byways, we should have to think in terms of extending it to refer to vehicular highways. In my submission, the essential purpose of definitive maps is to record the ways that are available for the benefit of people on foot or on horseback, and it would be quite wrong to show vehicular highways, as such.

Perhaps I may conclude by saying that it will, in any event, be possible to show byways in definitive maps by virtue of Clause 39(3)(i) or (ii) so that the amendments are not needed. I have gone to some length to cover this because it is a somewhat complicated matter, but I think the noble Viscount may feel in the circumstances able not to pursue his amendment.

Lord Fletcher

Some noble Lords will agree that when the noble Lord described this as a somewhat complicated provision, that may have been an understatement. I feel the Committee will wish to consider very carefully what the Minister said and if necessary revert to these matters at a later stage; it would be difficult for me, and I think for other noble Lords, to embark on a long discussion with the Minister on the statement he has just made, but there is one observation I feel I should make. As I understand this somewhat complicated Clause 39, which provides for a series of modifications to the definitive map to be made from time to time, the operative words which cover the duties of local authorities occur in subsection (2)(a), which requires local authorities, to make such modifications … as appear to them to be requisite in consequence of the occurrence". I emphasise the word "occurrence" because the occurrence does not appear to be defined anywhere in the Bill. I hope the Minister will consider whether the word "occurrence" is sufficiently wide to cover agreements. He referred to dedications and so on and I hope that "occurrence" is sufficiently wide to cover not merely matters discovered—"discovery" is the word used in subsection (3)(c) and is, again, a somewhat ambiguous word. When we come to debate Clause 39 stand part I shall invite the noble Lord to tell us what the Government think is meant by discovery on the part of the authority of evidence, and whether or not it involves their being persuaded that there has been sufficient or a lack of evidence. I hope that when considering amendments to the clause the Minister will, between now and a later stage, consider the necessity of having a definition of "occurrence" in Clause 39(2)(a) and of "discovery" in Clause 39(3)(c).

Viscount Hanworth

We are agreed that this is a complicated matter. I believe the Minister has missed the point I was making and I am not sure I have the points he was making. It would therefore seem sensible if he would look in Hansard to see what I said and I shall certainly look at what he said. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 474 and 475 not moved.]

Lord Bellwin moved Amendment No. 475A: Page 34, line 13, leave out ("on") and insert ("in").

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 475B: Page 34, line 18, leave out ("on") and insert ("in").

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 475C: Page 34, line 20, leave out ("have been") and insert ("be").

On Question, amendment agreed to.

7.46 p.m.

Lord Monk Bretton moved Amendment No. 475D: Page 34, line 21, after ("description") insert ("except that nothing in this section shall cause an authority to show as a byway open to all traffic a highway formerly shown as a road used as a public path and reclassified as a bridleway or footpath in a review under Part III of the Countryside Act 1968").

The noble Lord said: I think it would be convenient if I spoke at the same time to Amendment No. 483A. These amendments primarily concern roads used as public paths, sometimes known as RUPPs. To fill in the situation a bit, I should go back to the Gosling Committee, which sat prior to the 1968 legislation and which considered rights of way and, obviously, RUPPs. By 1968 it was evident that the category of RUPPs—roads used as public paths—was most unsatisfactory, and the Gosling Committee therefore recommended that they should all be reclassified as either footpaths or bridleways, or as byways open to all traffic. These byways open to all traffic—sometimes known as BOATs—were intended to be for the use of all but were at the same time to be exempt from the normal provisions which lay a duty on a highway authority to keep the highway up.

The Countryside Act 1968, which bore well in mind the fact that the highway would not be kept up, set out the manner of reclassification, which was based on the Gosling Committee's recommendations. That consisted of a three-part review: first, to find out what rights existed; secondly, to find out whether the way was currently physically suitable for vehicular traffic; and thirdly, to consider whether, if the route was closed to vehicles, there would be hardship, and account had to be taken of that. The last two tests in the 1968 Act are combined in Amendment No. 483A, which seeks to put them back into the law.

As the Bill stands, a RUPP can be reclassified as a byway open to all traffic and, if that is done, any motorcycle, Land Rover or car can use it, but the highway authority still does not have to keep up the surface. My concern is that this could lead to problems. The path could get severely chewed up, and we have quite a problem here because there could be a mess, motorcycles could be roaring up and down to the dissatisfaction of other users and, more than likely, to the owners, and there would be the problems of the cost to farmers of maintaining their roads under such conditions in order that they should use them for their own purposes. That is quite a problem, to which I wish particularly to draw attention.

Currently I can see a way out of it—that a local authority could make a traffic regulation—but that is a slow process and the farming community is concerned because of the slowness of the process, and the fact that it means going through the whole business of an inquiry again, first to discuss the road being used as a public path and secondly to discuss the traffic order. That is the nub of Amendment No. 483A.

As for Amendment No. 475D, which is connected and is probably more important, since 1968 a number of local authorities have reclassified their roads used as public paths. As the Bill is drafted, where a road used as a public path has gone through this full process of reclassification under the 1968 Act and has been shown as a footpath (or, more normally, has been shown as a bridle-way because it is unsuitable for modern needs) it would be possible for a motorcyclist or similar user to ask that it be shown again as a byway open to all traffic. This is what the worry is about. One will then be thrown back on using traffic regulations to remedy the situation when the track gets into a mess. The theory is that this process will be slower and disadvantageous by comparison with amendment to the Bill.

In the meantime there will again be difficulties over the control of vehicular traffic—motorcyclists et cetera—until an order can be obtained. Therefore Amendment No. 475D attempts to provide that, where an authority has within its area a track which has been reclassified as a bridleway or, occasionally, a footpath, in a special review, then it shall not have to take note of claims that it should be upgraded once more.

There is one thing further that I should like to say about the drafting of the amendment. At present the beginning of it reads, except that nothing in this section shall cause an authority to show as a byway … et cetera. I should be fully agreeable to deleting the word "cause" and inserting the word "require" in the belief that it would leave the highway authority with a greater discretion in the matter. I should be very glad indeed if that were to help the situation. I beg to move.

The Deputy Chairman of Committees

Amendment proposed, page 34, line 21, after the word "description" insert the words set out on the Marshalled List, with the manuscript amendment that the noble Lord has just mentioned, substituting in the second line the word "require" for the word "cause".

Lord Stanley of Alderley

Before my noble friend replies, I wish briefly to say a few words in support of this proposal. I was particularly interested in the remark of my noble friend Lord Bellwin on a previous amendment—I think it was the one before last—when he said that the role of the Bill was to provide for pedestrians and riders, not vehicles. This amendment may not be correct, but it emphasises the need that arises here, since it would require the authority to take note of the state of the path before reclassifying it, as my noble friend Lord Monk Bretton said. I hope that my noble friend on the Front Bench will see the point of the amendment.

Lord Moyne

I wish very briefly to give strong support to the amendment. As I understand it, if the RUPPs are again upgraded, there is no appeal. Presumably they will have been downgraded for good reason. Unless the amendment is passed, they can again be upgraded and nobody can say anything about their unsuitability.

Viscount Hanworth

I should not have thought that the situation envisaged was very likely to arise. I can understand the farmers' point of view. On the other hand, I consider that the proposal is unduly restrictive and is not in the spirit of Clause 39 of the Bill. Therefore, I hope that the Government will not agree to the amendment. Although I have sympathy with the farmers, there are other points of view.

Lord Bellwin

As the Bill stands, local authorities are free to reclassify again those roads used as public paths which they downgraded to bridleways or footpaths as a result of the application of the suitability or hardship tests. Since these tests have now been discarded, it is clearly right that they should have the opportunity to apply the sole remaining test of vehicular rights to those ways.

The tests applicable to reclassification, because they call for subjective judgments on whether a way is suitable for vehicular traffic and whether the loss of vehicular rights would cause hardship, have never been consistently applied. The "suitability" and "hardship" tests have therefore been dropped in the Bill. It is left to the local authorities to decide whether there is a case for reclassifying again on the basis of the remaining "vehicular rights" test those roads used as public paths which were downgraded as a result of the application of the "suitability" or "hardships" tests. It is considered that this discretion should be retained.

If I have understood my noble friend's amendment aright, he, too, thinks that the authority should have the discretion to decide whether or not to reclassify again. I submit that the amendment is not necessary, since its objective is already achieved in the Bill—in Clause 39(2)—and I wonder whether following contemplation my noble friend would agree with this view and so feel able to withdraw the amendment.

Lord Moyne

Would the noble Lord, Lord Bellwin, agree that, if new evidence of ancient vehicluar rights can be produced, the question can come up again and again for years, during which time motor cyclists, who may not have the rights, or perhaps should not have them, or perhaps motorcar drivers, can go on using the roads?

Lord Bellwin

I should have thought that that was so. Yes, I think I would agree with that. The proceedings on the Bill are perhaps taking longer than might have been expected, though I must point out that this is the first Bill with which I have been concerned that has started in this House, apart from the minerals Bill. I feel that it is quite proper that the kind of consideration that has to be given to the Bill should be more prolonged than would be the consideration of a Bill on which there had previously been deliberations in another place. There is nothing at all wrong in this situation, but there is a difficulty in that your Lordships' House has to push on with its business. This is a long and contentious Bill, and for that reason in response to my noble friend I make the point that I imagine that what he says is right. However, should it upon reflection, and following reading—and I assure the Committee that there will be much reading—be considered that there is a contra view, I shall be in touch with my noble friend to tell him so.

Lord Avebury

Far be it from me to prolong the discussion. I have already pointed out to the noble Lord, Lord Denham, that I have not spoken at all today because I am so keen that the Committee should press on and proceed as far as possible this evening. However, I wonder whether the noble Lord the Minister can possibly clarify one point. I listened to him very carefully when he spoke about the circumstances in which the local authority may reclassify a road that has been downgraded. I thought I understood the Minister to say that the discretion which the noble Lord who moved the amendment was seeking to confer on the local authorities was already contained in the Bill as it stands, but that the discretion was not an absolute and unfettered one, and that though the criteria which were laid down in the 1968 Act were now removed, there was one remaining hurdle to be surmounted before a local authority could exercise its discretion to reclassify a road upwards from being a bridleway to one to be used by vehicluar traffic. Can the noble Lord clarify that one point?

Lord Bellwin

Yes, that was indeed what I said. So far as I am aware—and I qualify all that I say on this clause—the position is precisely that the local authority has the absolute discretion, with the one caveat to which I referred earlier.

Lord Underhill

Is what the Minister saying cancelled out by the provisions of Clause 40(3), which lays down three particular points in paragraphs (a), (b) and (c)?

Lord Bellwin

I have no reason to think that it does. I am advised that the position is as I have stated.

Lord Monk Bretton

I feel that what the noble Viscount, Lord Hanworth, said a moment ago over the last amendment is fairly apposite, in that this is a complicated matter. At this stage it would probably be best to take this matter away and look at it. I hope very much that my noble friend Lord Bellwin will do the same. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8 p.m.

Viscount Hanworth moved Amendment No. 476:

Page 34, line 25, at end insert— ("Provided that the authority shall not take account of evidence relating to alleged events under subsections (c)(ii) and (c)iii above if satisfied that the person prejudiced by the public right of way, or his predecessor in title, could have produced the evidence on or before the appropriate date as defined in subsection (6) below, and had no reasonable excuse for failing to do so.")

The noble Viscount said: This is one of the three or four amendments which I think are absolutely vital, from my point of view, in this Part of the Bill. I am afraid, therefore, that I must give it to your Lordships in some detail. The general principle is perfectly easy to understand, but I think it is important at this stage to give the supporting arguments, unless the noble Lord, Lord Bellwin, can say at this moment that he agrees to the amendment.

Lord Bellwin


Lord Denham

I am sure the noble Viscount will give us the detail very thoroughly, but I hope he will realise that there are 800 amendments and that we have a time difficulty.

Viscount Hanworth

I shall not be appreciably longer than some other noble Lords have been, I think. I should like to speak to Amendment No. 476 and to the consequential one, Amendment No. 479. They seek to restrict the types of evidence which can be brought forward by the surveying authority to justify the downgrading or deletion of a way already shown on a definitive map. Prior to the 1968 Countryside Act there was no provision at all for making amendments to the map in this way. It is important, I think, to realise that. Section 33 of the National Parks and Access to the Countryside Act 1949 provided for periodical revision of maps and statements only in so far as higher rights of way could be shown, or rights of way over paths which had not been shown at all on the definitive map.

The 1968 Act amended Section 33 allowing a surveying authority to delete or downgrade a way shown on the map on the basis of new evidence or of evidence not previously considered by the authority, but placed a restriction on the bringing forward of evidence by providing that the authority should not take account of it if satisfied that the person prejudiced by the public right of way, or his predecessor in title, could have produced the evidence before the relevant date of the map concerned and had no reasonable excuse for failing to do so.

In Circular 22/70, issued by the then Ministry of Housing and Local Government, paragraph 6, the Ministers of the day said that their view was that the only sort of evidence to which authorities can have regard to correct a mistake is that which shows conclusively that there was no public right of way over the land shown on the map as a public path, or that any other particulars in the map and statement are not as shown. Where the evidence is merely that of witnesses asserting that there was no right of way, this would not be sufficient to justify the deletion of the right of way and no action should be taken by the authority. Such evidence would have been considered at the previous stage of map-making. If no such evidence was then considered, and there is no valid reason it was not then produced, it cannot amount to the new evidence now required. Deletion would be justified only if the new evidence satisfied the local authority that they had misconstrued the original evidence and, on a proper view of the original evidence, ought to have decided that no right of way existed". This circular sums up the circumstances in which new evidence should be allowed to justify amendments to be made to definitive maps to reduce the status of a public right of way, or delete them.

The DOE has argued that it is wrong to allow public rights to be shown incorrectly without providing a method of correcting the mistake. This is accepted, but the principle of res judicata must stand; otherwise, landowners could apply for an order ad infinitum, or at the least wait until the chief witnesses, who proved the public right, have died and then apply for an order. In such a case the public would have no evidence with which to support an objection.

I will cut my remarks a little short, shorter than I had intended, but that is the real point at issue. It would be very unfair to allow any evidence to be produced which could not be rebutted simply because the witnesses would be dead, and so on. I hope that even if the Minister cannot in fact agree to this amendment he will look very seriously at what I have said, because it represents to a large number of associations and people who have looked at this Bill one of the key amendments in Part III. I beg to move.

Lord Fletcher

I am very sympathetic to this amendment, which I hope will have the support of the Minister, but I regret to say that it seems to me to fall short of what is desired. If your Lordships will look at the second line of Amendment No. 476, it will be seen that if makes provision, as the noble Viscount, Lord Hanworth, has indicated, to prohibit a local authority from dealing with evidence which could have been produced but has not been produced. But my noble friend's amendment appears to me to be limited, in the second line, to events under paragraph (c)(ii) and paragraph (c)(iii). What puzzles me is why the noble Viscount's amendment does not also cover paragraph (c)(i), which seems to me to be at least as important as paragraphs (c)(ii) and (c)(iii). Although I think it would be out of order at this stage to propose a manuscript amendment to the noble Viscount's Amendment No. 476, I hope that nevertheless the Minister will bear in mind what I have said; and unless we get satisfaction about this, at the Report stage I should like to introduce another amendment to make this amendment apply to paragraph (c)(i) as well as paragraphs (c)(ii) and (iii).

Lord Bellwin

I appreciate that these amendments are designed to apply to the new review procedure a provision which limits the evidence which authorities can at present take into account in considering the downgrading or deletion of ways shown in definitive maps and statements. The proposed retention of this provision introduces an important point of principle; namely, whether it is equitable that a landowner should, because he failed to object in the past, be prejudiced from bringing forward evidence to support a claim for downgrading or deletion. I must say that I find it difficult to understand why a landowner should be restricted in bringing forward evidence to achieve a downgrading or deletion of a path while no such restriction applies to a path-user who might wish to add or upgrade a path.

A proviso along similar lines to that contained in the amendments was included in the various changes made in 1968 for reviewing definitive maps. It was excluded from the present Bill because, as I say, it is inequitable that landowners should not have the same opportunities as the users of rights of way to correct errors in definitive maps that are detrimental to their interests. Both bodies had, before 1968, equal opportunities to object to definitive map proposals.

Definitive maps and statements are, I understand, not always entirely accurate, and therefore surely any proposal that would limit people's capacity to remedy the situation would be wrong. That is why I am not able to accept this amendment—because I think it is unfair so far as a landowner is concerned. So often have I heard, it seems to me, that in this Bill it is a question of finding a balance and of doing what is equitable as between the varying interests that I cannot accept the amendment. Of course, I will seriously read what has been said and will take careful note of what the noble Lord, Lord Fletcher, has said. I hope with that assurance that the noble Viscount may feel able to withdraw his amendment.

Viscount Hanworth

The strange thing is that this Bill in this particular clause has now gone way over towards the landowners; whereas before it was the other way. I think the noble Lord really has to consider why he has done this, because the situation was perfectly satisfactory under the previous legislation. He really ought to consider my argument, that it is particularly unfair that, it having been decided that the whole question must be opened again, the onus—and this is the important point —of producing the evidence then is on the person or organisation who is trying to show that right of way exists. If the onus is put the other way, on the landowner, this would be much more sensible. As I have said, it is too much to have to try to prove a right of way when all the people who could have come up to give evidence have probably died.

It is really the question of the burden of proof which is worrying. This could go on indefinitely. Land changes hands and a new owner might say, "Let's have another try. This right of way is a bore". I should like the noble Lord to think about this largely on the grounds of the burden of proof. I think he should consider why a change has been made from the legislation which, as far as I know, has proved perfectly satisfactory for a very long time. I cannot help feeling that there may have been a slip when this Bill was drafted because it was not fully realised how far the situation had moved from what was satisfactory before. I hope the noble Lord will consider the matter. I beg leave to withdraw the amendment.

Lord Melchett

Before the noble Viscount withdraws his amendment, may I ask the Minister a question. As I understand it, the Bill as drafted (in other words, as it has now amended the previous Act) would allow somebody to come forward and say that this particular right of way is not a right of way and they knew it was not. And the local authority would be obliged to re-open the whole question. There is no qualification as to the new evidence that must be produced. It has not got to be (as I believe it should be) evidence which had been overlooked or misconstrued by the previous inquiry. Anybody could walk into wherever they have to walk into, say, the local authority office, and say that there arc 14 rights of way on the map which do not exist and then 14 new inquiries must take place.

The noble Viscount, Lord Hanworth, says that many who might have given evidence as to the existence of those rights of way when proved may have died or moved away. It seems to me extraordinary that there is not qualification on the new evidence that obliges the local authority to re-open the whole subject. I do not know if that is what the noble Viscount, Lord Hanworth, meant by burden of proof, but it is the nature of the evidence which concerns me.

Lord Bellwin

In those circumstances of the extreme case, I would have thought that that is something that the authority who had to decide on re-opening would take into account. If I was called upon to decide whether or not to re-open, I should want to know why. If that which was put to me sounded reasonable, I would proceed. If not, I would not proceed. At the end of the day, it is something like one of those other matters which may be coming up shortly where one expects the local authority to take a view. That is how I would see it.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 476ZA:

Page 34, line 25, at end insert—

("( ) In the exercise of its duty under subsection (3) an authority—

  1. (a) shall disregard the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public right of way during that period raised a presumption that the way has been dedicated as a public path where such a presumption is based on the inclusion of the way in any definitive map and statement and evidence has been discovered that the way ought not to have been shown as a public right of way, or ought to have been shown as a highway of a different description; and
  2. (b) shall have regard to such physical features of a way as may be evidence as to the existence of a public right of way, or the correct description of that way, notwithstanding that such features may have been removed or altered consequent upon the inclusion of the way in a definitive map and statement.").

The noble Earl said: I should like to move Amendment No. 476ZA and at the same time to speak to Amendment No. 483B. Like the noble Viscount, Lord Hanworth, on his amendment, I believe these two amendments are probably the two most critical amendments of Part III. One of the counter-arguments to the noble Viscount's case in the last amendment is that in many parts of England and Wales the original process of definitive mapping was haphazard in practice, although, legally, the process was formal. It is the user groups which have pointed this out since the Suffolk v. Mason decision in 1976. At the risk of generalising, for every problem arising from an error in marking there are far more from showing a path with the wrong status. Once a path is on a definitive map it is conclusive evidence that a right of way of a particular status exists. No matter how gross the error, if there is a complaint by a path user, then most highway authorities feel that they must assert the right of user. This is a duty on them under the Highway Acts and prejudicial against the landowner on whose land the path is.

Possibly the worst prejudice of all could arise from the interaction of Clause 39(3)(b) and Clause 39(3)(c)(ii) or (iii). Supposing a farmer brings good evidence under Clause 39(3)(c) that a path ought not to have been shown or that a bridleway ought not to have been shown as a footpath, and wins his case either without objection or after inquiry, and the path had been mapped in the 1950s and there had been no review of the definitive map since. It would then seem open to the claimant if so minded, to claim under Clause 39(3)(b) that before the path was removed there had been the expiration of a period—that is, 20 years—such that it should be presumed that the path had been dedicated. This claim might stand, whether there had been use or not, because in law it is not the use but dedication that gives rise to a path. Where use is pressed, particularly higher uses, special problems arise. Because the map is definitive, the affected individual has generally had to submit to the use pending a review. In this case, he is in great danger of a claim that there is an implied dedication and there appears to be no certainty that even a sign inconsistent with dedication, which is the usual defence against claims, would offer any protection.

Amendment No. 476ZA seeks, first, to say that any authority shall disregard claims which arise purely because of a presumption of dedication arising from the fact that it had been on the map, where there is no other evidence. Secondly, it goes on to state that a local authority shall take into account the physical features on a way where there is evidence as to whether a right of way really did exist there. They shall do this whether or not such features have been removed. The related amendment to Clause 40, No. 483B, attempts to do the same in the case of contentious roads used as public paths as a result of the case of Hood. This is not a party political matter but one of prejudice, and I hope that it will receive your Lordships' support. I beg to move.

Lord Bellwin

As I hope I illustrated by my response to the last amendment, I am by no means unsympathetic to the problems of the farmers and the landowners faced with the situation described in the first part of the amendment. I am bound to question the extent of the problem and whether it justifies such measures. Acquisition by the public of a right of passage over land by implied dedication is a well established principle of common and statute law. Its curtailment, whatever the origins of the initial use, is not a matter which should be taken lightly. I cannot lend my support to this part of the amendment. Moreover, it would be difficult for authorities, in the face of allegations to the contrary, to tell with absolute certainty that the initial use of the way in accordance with the higher status resulted from its inclusion in the definitive map and statement. There is little evidence to suggest that numerous rights of way have been shown on maps and statements in a higher status than that actually existing and that the problem is widespread. In fact, most representations we have received point to the opposite being the case.

I respectfully submit that the second part is otiose. Evidence of this nature would be admissable in determining the status of a right of way and there is no need for a specific provision requiring authorities to have regard to it. I think that my noble friend, on careful consideration, will agree that. Although disappointed at the first part of my answer, I hope that he will recognise that it has the validity that I have made and will feel able to withdraw the amendment.

Lord Fletcher

I very much welcome what the noble Lord has said. It would be a retrograde step if he were to contemplate accepting this amendment. It would fly in the face of what has been the established law for a long time. If a path is shown on a definitive map, it is conclusive evidence against all the world. I am very glad that that provision of the law as it now stands is repeated and reinforced in Clause 42(1) of this Bill. It would make nonsense of that clause if this amendment were to be accepted by the Minister.

8.22 p.m.

Lord Moyne

I should like to take this opportunity, as the noble Lord, Lord Bellwin, mentioned his understanding of the problems of the farmers and landowners, to point out the great hardship—the practical hardship—that arises to farmers. It is not just a matter of not wanting people to go through a field; it is having to take the gates down. The proper rotation of crops involves grass among corn. If there can be no gates, the grass cannot be eaten. That is a severe, practical problem for farmers. It is not a question of landowners; it is farmers and their gates.

Lord Houghton of Sowerby

Having listened to the noble Lord's impassioned defence of the interests of the farmers, let us bear in mind that there is another side to the case. This Bill, so far as I understand it, is not opening up further access by the public to the countryside. It is reviewing what has already been done in that regard, and attempts are being made to tighten up the procedure so that further access will be difficult to obtain. That is an important consideration that needs some examination.

In long experience of trying to understand propositions, amendments and Motions, when I find I cannot easily comprehend them, I look at from where they have come. That is always a good guide to what somebody intends to do. I remember the late Ernest Bevin once being told that a certain amendment on the TUC agenda "after all could not be objected to". His colleague said: "Look what it says. You cannot object to that, can you?". He replied: "When I do not understand a Motion I want to know who is moving it". I see this noble quartet on the Benches opposite parading this amendment before the Committee and I think that we ought to look at it carefully.

The Earl of Caithness

Could I—

Lord Bellwin

Before my noble friend comments, with respect to the noble Lord, Lord Houghton, it is not that basis at all on which we came to the conclusion that we have about this amendment. I am anxious to watch carefully for the interests of all concerned, of one side as another. It would be wrong not to recognise that farmers have a very, very important role to play. We must be very careful about anything that we may do to impinge upon their activities. We must be careful about that. For that reason, I am not unsympathetic to whatever they bring forward. I shall listen as carefully as I can just as I shall do with users as well. I hope that my noble friend will not feel that anything I have said is in any way because of any views we have as such; it is because we are trying to get the best Bill we can.

Lord Houghton of Sowerby

I had not finished, with great respect. The noble Lord came in when the noble Earl, Lord Caithness, had risen to intervene in what I was saying. As I began to sit down, the noble Lord, Lord Bellwin, jumped up and wanted to carry the debate a little further. May I therefore give way to the noble Earl who rose earlier.

The Earl of Caithness

I am most grateful. I was going to point out that one of the famous quartet happens to sit on his Benches too.

Lord Houghton of Sowerby

That does not make any difference to me. In this House one gets varied interests on both sides of the Chamber. I will not delay the Committee more than a moment further, though I realise that we have reached a stage in this Committee when any speech from the Back-Benchers is an intrusion into conversations that are going on between the two Front Benches.

Lord Melchett


Lord Houghton of Sowerby

No, no. It becomes a kind of duet or conversation between the two Front Benches. Surely there could be some better procedure than our sitting here to listen to in the conversations between the two Front Benches. So I make no apology for an intrusion into this debate. What I want to say is this: we hear far too much about the interests of the farmers. They are a pretty well-to-do section of the community. They are not entitled to any more consideration than any other section of industry. They are an industry and they are entitled to consideration along with other sections of industry. But I do not regard farming as a form of worship.

While I am prepared to consider their interests very carefully indeed, I have to have regard to two factors. One is that there are more people in the country than there were. Secondly, walking down the lanes in the countryside can be a dangerous occupation with the intrusion of the motor car throughout the lanes and in many places where it should not be. It becomes very difficult to walk in many parts of the country today. Footpaths are an escape from the dangers and unpleasantness of the road. Farmers have to understand that they are in occupation of the basic inheritance of the whole of the people. They must be prepared to make concessions to yield up to the population generally some reasonable access to the countryside. Otherwise we are all going to be shut out. We shall have to live in urban areas or be confined to the lanes and roads of the countryside, be knocked down by motor cars, and be subject to all the other hazards of life today.

There ought to be a better appreciation of the general problems of the public at large today who go out for their exercise in the country and see notices up about trespassing, barbed wire and fences put up against them. Noble Lords are all getting stirred now. Let us get the debate going and see where we are. That is my point of view.

Lord Moyne

The noble Lord referred to my impassioned plea. People can pass through the gate, if it can be opened. But if the land is graded up from a bridleway or footpath to a byroad through which motor cars and motor bicycles can go, no gate—although it can be opened—is allowed to be put there. That is of very serious concern to the farmer.

Lord Stanley of Alderley

I was delighted to hear the noble Lord, Lord Houghton of Sowerby, in such good form. Occasionally it has occurred to me that when the noble Lord, Lord Houghton, moves amendments they have a certain difference from mine. I have one very quick question to ask my noble friend on the Front Bench. As I understood him, he was saying that if a path of any sort has been dedicated for more than 20 years the case that is made in the Bill under Clauses 39(3)(b) and 39(3)(c)(ii) or (iii) is irrelevant. I hope I have asked the correct question and I hope he can confirm one way or the other, because if he is saying they are irrelevant in that case I should be very disturbed by his reply, and I hope that my noble friend Lord Caithness will perhaps press him further on that.

Lord Bellwin

I should hate to disturb my noble friend. I do not recall having referred at all to a period of 20 years. I said that the second part of the amendment was superfluous, that evidence of this would be admissible in determining the status of a right of way, and that there is no need for a specific provision requiring authorities to have regard to it. I said that, and I repeat it now. I am not sure whether the implications of that are very far reaching as far as my noble friend is concerned, but that is the position.

Lord Teviot

Before we move from this point, I should like to intervene for the first time in regard to this Bill. I should like to point out to the noble Lord, Lord Houghton, that I am a walker, as he is, but I do not feel we should enter into a sort of preciousness. The farmer has one right and the walker has another right. These rights of way came about because of the rights of access. Nevertheless, these ancient rights of way are the Queen's Highway just as the MI is, so really what we are asking for is give and take on all sides. I think this Bill is trying to do something which will let the walker walk round and the farmer farm, but not having any confrontation or conflict of any kind so that people can work together in a fairly harmonious situation wherever possible. That is marvellous, but I find that when one does walk over prime agricultural land one should pay respect to the farmer. When my noble friend Lord Moyne spoke about gates, though perhaps in another context, if the local organisations put up stiles and work in with the farmer, then we could have the best of both worlds. I do not think we should try to drive a wedge between the two sides. We should be able to work in with each other and then we can co-operate for a very long time without any form of legislation.

The Earl of Caithness

I am afraid that my noble friend on the Front Bench has confused me a little more than I thought I was confused before by this Part of the Bill. What I am trying to do by these amendments is to allow justice to be seen. I am not trying to stop access to the countryside, or in any way trying to alter the law relating to what I call the 20-year rule. The Bill as it stands, as far as I understand it—this was highlighted by my noble friend Lord Stanley—means that if a right of way is claimed after 20 years and new evidence is brought after 25 years, that new evidence is inadmissible by the fact that the path has already been dedicated. Am I right?

Lord Bellwin

So far as I recall interpreting this, I think that is right.

The Earl of Caithness

Then can I ask my noble friend what is the point of bringing forward new evidence?

Lord Bellwin

I cannot answer this, but, like so many of the other things we have been talking about, clearly we shall take careful note of all that is said and, should it be necessary, we will look at things again. I think I have given an exposition of the facts as they are and I do not think I can help my noble friend any further. I am sorry.

The Earl of Caithness

I will not prolong this discussion at this stage. We will bring this back at a later stage and I hope that on consideration the noble Lords, Lord Fletcher and Lord Houghton, will see my point and will be able to support me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bellwin moved Amendment No. 476A: Page 34, line 29, at end insert ("open to all traffic").

The noble Lord said: I have already spoken to this amendment in connection with Amendment No. 472A. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 476B not moved.]

8.36 p.m.

Lord Melehett moved Amendment No. 477:

Page 34, line 39, at end insert—

("(6) Without prejudice to subsection (2) above, where any person submits a written claim to an authority alleging that any event mentioned in subsection (3)(b) or (c) has occurred and that the definitive map should accordingly be modified, the authority shall consider the claim and notify their decision thereon in writing to the claimant.").

The noble Lord said: Rather in contradiction of what my noble friend Lord Houghton said a minute ago, I think this is the first time, apart from a brief question, that I have had the pleasure of speaking on Part III, but I hope my noble friends behind me will continue to make their very helpful contributions. This amendment, with No. 478, would impose on a surveying authority the duty of considering any claim made to them that the definitive map and statement should be modified as a result of an event of any of the types listed in Clause 39(3)(c): that is, the discovery by the authority of evidence showing, for example, that there is no public right of way over land shown in the map, and so on, as listed on page 34 of the Bill.

Under these amendments, the authority would also have to notify their decision to the claimant in writing. Amendment No. 478 takes this a stage further by providing that a claimant will have a right of appeal to the Secretary of State either where the surveying authority says no to a claim or where it fails to respond to a claim within 12 months: in other words, if it simply ignores the claim there would be a right of appeal against that.

The aim behind these two amendments is to introduce into the Bill a procedure for appealing against a refusal or a failure by a surveying authority to act on a claim. This seems to me to be essential if the new, continuous review procedure, which is generally welcomed as an improvement, I think, is to work fairly and effectively, and it would be analogous to the existing right to object to the inclusion or omission of anything from a draft of a revised map: that is under the existing legislation.

As I understand it, this sort of right of appeal was envisaged by the department in their consultation paper issued in August 1979, in one of the first series that was issued on the proposed provisions of this Bill. Without the right of appeal against a decision by a surveying authority to take no action at all on a claim—in other words, if they simply ignored a claim and took no action on it, however well-founded the claim might be—it would leave the claimant in an impossible position. It would, I suppose, be possible to challenge the lack of action in court, but we know how difficult, expensive and time-consuming that could be. There would be no simple or straightforward method of appeal if the local authorities simply do not respond to the claim at all.

The effect of not showing what is a public right of way on a definitive map would be to obscure its true status and would make it easier for anyone who wished to do so to obstruct it or generally to deny the use to which the public were entitled, whatever that might be. I hope the amendments will find favour with the Government because I think they would improve the continuous review procedure which the Bill introduces, and which is generally welcomed. I beg to move.

Lord Fletcher

May I say a word in support of this amendment, which I regard as one of the most important amendments to this Part of the Bill, and may I give a specific example as to why I am certain that this amendment is necessary? The Minister will observe that there is some underlying contradiction between Clauses 39 and 41. As Clause 41 stands—and I put down certain amendments to it, which may not be necessary if the Minister is sympathetic to what I am about to say on this amendment—no further inquiry is to be begun by a local authority in respect of a survey or a review which is in progress, and there is no certainty whatsoever that a local authority will be able, or will be required by the Secretary of State, to complete it.

May I illustrate my concern? I am familiar with a case in the county where I live, where there was a review by the local authority pending 12 months ago. I am familiar with the facts, which are that some 40 or 50 inhabitants of that locality tendered evidence to the Minister that a particular path, which was not included in the definitive map, had been used and enjoyed by the public at large for very many years. Evidence was tendered, showing that some people had been using it for 20, some for 30, some for 40 and some for 50 years without interruption and as of right.

In the ordinary way, if the old legislation had been maintained in force, the Minister would have ordered an inquiry and the landowner could have objected. But these 40 or 50 local inhabitants were all prepared to go to the inquiry and give evidence, if necessary on oath, that they had exercised their right for more than 20 years in using that path as a right of way.

What I am concerned to ensure is that that evidence shall not be lost. Because of the introduction of this Bill, that review was suspended. If Clause 41 remains unamended, it is by no means certain—it looks to me as if it is unlikely—that that review will be completed. It seems to me that, in the interests of justice and in fairness to those who gave evidence to the Minister 12 months ago, their evidence should not be overlooked and they should not, in any circumstances, be required to give that evidence again to any local authority or inspector. That is why I support this amendment and I should like the Minister to deal with this question.

Under Clause 39(2)(a), I appreciate that modifications of the map can be made on certain occurrences—and there is no definition of the word "occurences". But, if you look at subsection (3)(c) of Clause 39, you will see that a local authority can modify the map on the discovery of evidence justifying their doing so. In this case which I have specified, there is abundant evidence that a pathway which is not at present on the definitive map ought to be on the map, and that the existing map ought to be modified accordingly.

Accordingly, I ask: are those facts under the Bill as it stands, and, in particular, under Clause 39, sufficient to substantiate the theory that a local authority can now discover that evidence and make a modification of the existing map? Unless that is the case, then, unless Clause 41 is also revised to require the Secretary of State, in cases similar to that which I have instanced, to insist upon a public inquiry, grave injustice will be done to the inhabitants of that locality.

Lord Stanley of Alderley

I am afraid that my noble friend on the Front Bench thinks I am sniping at him, but I have to support this amendment if only out of consistency. I hope, therefore, that when he sums up he will be able to give some positive reply that he will make some effort to accommodate the noble Lord, Lord Melchett.

Lord Avebury

I should also like to support, not only for myself but for all my noble friends on these Benches, the amendments of the noble Lord, Lord Melchett, which we think are absolutely essential to be added into the Bill. If they are not there, then what can happen is that the persons may submit evidence to the local authority, which they say shows that one of the events in paragraph (c)(ii) or (iii) has occurred, and the local authority may dismiss the assertion without examining it properly.

Whereas if these amendments are made, first, the local authority is obliged, under the first new subsection proposed by the noble Lord, Lord Melchett, to make a proper reply in writing to the claimant, instead of merely telling him verbally that he has not produced even the glimmerings of a case to show that one or other of these events has occurred; but, secondly, and much more important, if the local authority rejects the submission, which is undoubtedly evidence within the meaning of subsection (3)(c), the person aggrieved must have a right of appeal to an independent authority.

As the noble Lord, Lord Melchett, said, he would probably already have a right to proceed against a refusal of the local authority by way of, for example, mandamus. But it would cost him an enormous amount of money to go to a divisional court and seek a writ, and it would be a very heavy weapon to take against a refusal of the local authority to consider the evidence, even if it were of a very substantial nature such as the noble Lord has just mentioned. But if it is one person who believes he has a good case to establish that an event, within the meaning of either sub-paragraph (ii) or sub-paragraph (iii), has occurred and the local authority turns him down, he must be able to go to some impartial authority and have his claim properly examined.

Lord Bellwin

I shall not say much on this amendment. I am prepared to give further consideration to this question, on the understanding that my right honourable friend the Secretary of State is not involved, and that it will be possible to protect authorities against frivolous or repetitious claims which do not introduce any new information. Your Lordships may care to note that the informal committee on rights of way matters, which my honourable friend Michael Spicer chairs, has the problem under consideration. In the circumstances, I would invite the noble Lord to withdraw his amendment. The matter is being considered by the Spicer Committee and we will take it away and consider it.

Lord Melchett

I hear the noble Lord, Lord Avebury, suggesting that it might be possible for the Government's consideration to be completed by Report stage, and I hope that that will be the case. If not, I have a feeling that the support on all sides of the House is so strong for this amendment, that it would be worth while tabling it and pressing it if we needed to do so. But the noble Lord has been very kind in saying that he will consider it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 478 and 479 not moved.]

Clause 39, as amended, agreed to.

Clause 40 [Duty to reclassify roads used as public paths]:

8.49 p.m.

Lord Bellwin moved Amendment No. 479A: Page 34, line 45, leave out ("(however they are there described)").

The noble Lord said: In speaking to this amendment, by leave of the Committee I should like to speak also to Amendments Nos. 481A, 484A, 484B and 484C. It will not have escaped your Lordships' notice that there are several Government amendments to Clause 40. As these represent a single package of proposals, I should like to take them together. The key amendment is the one to subsection (3), which is No. 481A.

The purpose of Clause 40 is to enable authorities to settle, once and for all, what rights—vehicular, bridle-way or footpath—exist over roads used as public paths and to reclassify them accordingly.

As it stands, subsection (3) would require authorities to reclassify solely on the basis of evidence of the rights that have been known to exist. It takes no account of the principle established by the decision in the Court of Appeal in the case of Hood v The Secretary of State, that unless there is evidence to the contrary the conclusive evidential effect of definitive maps in relation to roads used as public paths means there are at least bridleway rights over these ways. I am content that this principle should continue to apply to future reclassifications. The amendment fulfils this purpose, in so far as it specifies that public bridleway rights have not been shown not to exist. The amendment would not prevent roads used as public paths from being reclassified as footpaths if the evidence at the authority's disposal indicates that only such rights exist.

The decision to retain the principle established in Hood also made it necessary for us to look again at the scope of Clause 14. Our original intention was that the clause should apply not only to ways shown on definitive maps as roads used as public paths but also to any path shown on the definitive map as a footpath or bridleway but which should have been shown as a road used as a public path. The clause was drafted with this arrangement in mind.

The question we were obliged to consider was whether, given the changes being proposed to subsection (3), it was logical that the clause should continue to provide for what amounts to an upgrading. The conclusion we reached was that Clause 40 should be confined to the reclassification of ways shown on definitive maps as roads used as public paths. The upgrading of footpaths and bridleways would thus take place within the terms of Clause 39(3)(c)(ii). I am convinced that this arrangement is far more sensible and practicable than the one originally proposed and would simplify considerably the process of reclassification. I beg to move.

On Question, Amendment agreed to.

[Amendments Nos. 480 and 481 not moved.]

The Deputy Chairman of Committees (Lord Greenwood of Rossendale)

I must tell your Lordships that if Amendment No. 481A is agreed to I shall not be able to call Amendment No. 482.

Lord Bellwin moved Amendment No. 481A: Page 35, line 19, leave out from ("apply") to ("to") in line 20 and insert ("and public bridleway rights have not been shown not").

The noble Lord said: I spoke to this amendment with Amendment No. 479A. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 482 and 483 not moved.]

Lord Stanley of Alderley

had given notice of his intention to move Amendment No. 483A:

Page 35, line 22, at end insert— ("(d) before showing any road used as a public path as a by-way open to all traffic account shall be taken of its suitability for vehicular traffic having regard to the position and width of the existing right of way, the condition and state of repair of the way, and the nature of the soil together with the hardship which might be caused by extinguishment of vehicular rights.").

The Deputy Chairman of Committees

This amendment was discussed with Amendment No. 475D. Does the noble Lord wish to move it?

Lord Stanley of Alderley

No, I do not wish to move the amendment.

[Amendments Nos. 483B and 484 not moved.]

Lord Bellwin moved Amendment No. 484A:

Page 35, line 29, at end insert— ("( ) In this section "road used as a public path" means a way which is shown in the definitive map and statement as a road used as a public path.").

The noble Lord said: I spoke to this amendment with Amendment No. 479A. I beg to move.

On Question, amendment agreed to.

Lord Bellwin moved Amendment 484B: Page 35, line 32, leave out ("on") and insert ("in").

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 484C: Page 35, line 34, after ("section") insert ("or section 39").

On Question, amendment agreed to.

8.56 p.m.

Lord Moyne moved Amendment No. 484CA:

Page 35, line 39, at end insert— ("(7) There shall be a speed limit of 7 miles per hour on all unsurfaced byways unless, with the agreement of the parish or community council concerned, the county council shall allow a speed limit of up to 20 miles per hour, to be clearly indicated on the byway concerned.").

The noble Lord said: In moving the amendment which stands in my name, it may be of interest, perhaps even of amusement, to mention how I came to put it down. I have had to miss some meetings of the Committee through being involved in inquiries held in Wiltshire regarding the conversion of roads used as public paths into either bridleways or byways, as the Bill envisages.

The motor cyclists' organisations have got me on my feet. They explain that, according to the Bill as originally drafted and as I think it still is, if a vehicular right of way for pony carts even 50 or 100 years ago can be proved, no appeal will be available to prevent an unsurfaced track from being a byway today open to motor cars and motor cycles, however unsuitable the surface or the surroundings might now make it.

I suggest that what may have been suitable for a pony trap 100 years ago may not be suitable for high speed motor cycles or cars today. A friend of mine lately went for an early morning walk at a beautiful spot on the Ridgeway. His peace was disturbed by a motorcyclist roaring by. "What matter?" he thought. "The rider went too fast to enjoy the scene but that is his affair. I am left in peace". But then came another motor bike, and another and another until 14 motor bikes had roared by. "Well, it's over now", he thought. But, no. After a while they all came back again. They were doing a circuit.

If motor cyclists are to have rights strengthened by the Bill to use the quiet green lanes of our countryside, I suggest that they should at least be limited in speed and prevented from using the byways as scramble tracks, in the same way as horses are forbidden to be raced or galloped on bridleways. The right should be one of quiet passage at a moderate speed.

I have suggested seven miles per hour, but perhaps five would be more appropriate, though seven miles per hour I think would be about the speed of a pony and trap, upon which this whole thing seems originally to have been based. I should like to hear the Minister's view, and the views of the Committee, on the appropriate speeds. I have suggested that in places where local feeling suggests a higher limit it should be no more than 20 miles per hour, which I believe is the limit normally advised to its members by one of the most responsible motor cyclist organisations. If the Minister thinks my proposal can be improved, he might like to undertake to introduce a better alternative at Report, or he may encourage me to set down the amendment again in an amended form. I hope, however, that the amendment may commend itself to him as it stands. I beg to move.

Lord Bellwin

I am very sympathetic to the points which my noble friend makes. Who would not be? There is much validity in the concern which he expresses, but I would respectfully submit that the amendment is not necessary, in that highway authorities already have the necessary powers under Section 74 of the Road Traffic Regulation Act 1967 to impose by way of traffic regulation orders speed limits on any highway under their control. These powers extend to byways open to all traffic. I am confident that authorities would not hesitate to use them in appropriate circumstances.

The primary purpose of the imposition of speed limits on vehicular traffic is road safety and not the prevention of the use of a highway by a particular class of traffic. There is also the question of enforcement. This would be extremely difficult in the case of byways open to all traffic, which also suggests that the imposition of a specific speed limit on a particular way should be left to the discretion of highway authorities. I hope that after this explanation my noble friend will feel able to withdraw his amendment.

Lord Brougham and Vaux

If the Road Humps Bill were in force, would this come into effect under that Bill?

Lord Bellwin

I am not sure whether the Road Humps Bill, which is in another place at present, would in any way affect this issue. I do not think that it would be a matter which would make me wish to change my mind so far as this amendment is concerned.

Lord Moyne

I should like to thank the Minister for his sympathetic reply and for pointing out that speed limits can be imposed, but I was suggesting that there should be a presumption of low speed on these highways. If the Minister is not meeting my point, I wonder whether he would look at it again? Is it not reasonable that on these small green lanes there should be a presumption that there would not be speeding at more than the speed at which a pony cart might travel, on which the rights are founded? Would the Minister perhaps undertake to look at it again?

Lord Bellwin

I am concerned about the matter of enforcement. I am not at all sure about how that could be done and, at the end of the day, I think it would have to be for the highway authority to decide. I am sympathetic because I know the kind of problems that this can bring, but I think it is not necessary to do anything along the lines suggested, and in any case the problems attached to it would mean that I could not accept the amendment as it stands.

Lord Moyne

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 40, as amended, shall stand part of the Bill?

Lord Houghton of Sowerby

I think one of the deficiences of our procedure, not only in your Lordships' House, but in another place, is that in the Committee stage of a Bill, before anyone has explained what a clause sets out to do, we begin to discuss amendments to it, and it is only after all the amendments have been disposed of that one can get round to what the clause itself is designed to do. This seems to me to put the whole procedure the wrong way round. In the Explanatory and Financial Memorandum to this Bill it says: Clause 40 makes fresh provision for the reclassification of roads used as public paths". That is illuminating so far as it goes but it does not really take us very far, so I can only plead difficulty in comprehending the provisions of this clause when I ask a question. Does this clause lead to the conversion of a footpath into a path for vehicular traffic? Is there any possibility under this clause of a footpath being converted into a way upon which vehicular traffic is permitted? I ask this question because a moment or two ago the noble Lord, Lord Moyne, was referring to motor cycles and motor cars going down unsurfaced roads upon which, generally speaking, the public rather than vehicles tend to go.

I am looking again at the broader question of the rights of access of the public to the countryside and where that right exists; that it shall not be rendered almost unwalkable by permitting vehicular traffic to use it. In earlier parts of our debates on this Bill many noble Lords have referred to certain mammals as "pests"; I think some people on motor bikes are pests and we should not hesitate to say so. They are an infernal nuisance and if they are going to use footpaths and to come roaring past one where previously only pedestrians trod, then I think we want to look carefully at what this clause does.

I am seeking reassurance here. I can understand that any ambiguities up to now as to the use of a particular right of way should be removed, and I understand that where obscure expressions have been used, leaving some doubt as to who has the right of way, they should be reclassified in order that the right of way should be made more clear. But, in doing that, I want to be assured that we do not turn footpaths into rights of way for vehicular traffic because the motor car is going deeper and deeper into the countryside. One sees motor cars where motor cars surely should not be and all that goes with motor cars being where they should not be, which can easily give rise to serious pollution of the countryside. This raises the question referred to earlier by the noble Lord, Lord Moyne; namely, the problems of ill-considered use of the countryside and people not behaving as they should in keeping to the footpaths and taking care as to how they proceed.

Incidentally, when we are talking about pedestrians and walkers in the countryside and how they behave, I am tempted to wonder how farmers reconcile the fox hunt going over their land. What sort of damage do they do? I have seen 120 horses go over fields, jump over hedges—do they not do any damage? Do they not do more damage than a few pedestrians enjoying a Sunday afternoon walk across the countryside? Yet we do not hear a single word against the huntsman and what he does. No, it is the pedestrian, the people who do not have motor bikes to ride on or who are civilised enough not to use them. I am just a little uneasy, but probably the noble Lord can give me a little reassurance.

Lord Moyne

The noble Lord, Lord Houghton of Sowerby, referred formerly to a quartet, and I find myself singing in a duet with him, except for one slightly discordant note; I think he is not fair on the hunt. No hunt is allowed along a bridle path or on any kind of field or path without the consent of the landowner. That consent is very often refused. What the noble Lord is saying is not true of the fox huntsmen, since they have to be very courteous in asking for permission, otherwise they are barred. They take great trouble to get consent from the farmer, but that is a side issue.

Viscount Massereene and Ferrard

I should like to support my noble friend Lord Moyne. Before one goes on a farm to hunt, one always asks permission of the farmer or the landowner and of course the hunt always repairs any damage that is done. Regarding the riding of motor cycles on bridleways there is a great danger here because bridleways and footpaths are usually very narrow and the surface is very rough.

There is the possibility of great danger to any child who is out on a pony on one of these rideways or footpaths. My experience of these young men on scrambler bicycles is that they go a lot faster than 20 miles an hour—probably 40 or 50. I am quite sure you will have some fatal accidents to children on their ponies if motor-cycles are allowed on these paths.

Lord Donaldson of Kingsbridge

My noble friend's ingenuity in getting round to his favourite subject is admirable, but I shall not follow him. I only want to say this about the first part of his remarks. I agree with him. I am extremely disappointed that neither this clause nor any other part of the Bill is going to diminish the factor about which conservationists and farmers agree totally, which is the disgusting noise and the horrible smell and the frightening effect of motor-bicycles dashing in sequence along bridlepaths. I am very disappointed that there is nothing in this Bill which has any effect on it. The fact that that is quite irrelevant to this clause I feel noble Lords will forgive.

Lord Stanley of Alderley

Before my noble friend replies, I think the noble Lord, Lord Houghton, is going to get a rather disappointing reply, but could he between now and Report look very carefully at the amendment moved by my noble friend Lord Caithness, because I think he might find that he would be rather in favour of that if he looked at it carefully.

Lord Bellwin

I do not want to prolong the proceedings by making a lengthy "clause stand part" speech. I have one here before me, but I feel it is not what I should be doing at this stage. So far as the point raised by the noble Lord, Lord Houghton, is concerned, I should say there is in fact no way in which a footpath can be converted into a right of way for vehicular traffic. I do not think there is anything much I want to add. I commend the clause to your Lordships. It may not go as far as all would like, but then if it did it would probably arouse some antagonisms, as I have noted this Bill to do in the past, on other matters, from other sources. I think again that it draws a balance and I commend it to the Committee.

Clause 40, as amended, agreed to.

Schedule 12 [Procedure in connection with certain orders under Part III]:

9.11 p.m.

Lord Monk Bretton moved Amendment No. 484D:

Page 76, line 26, at end insert ("and with every owner or occupier of land to which such an order would relate. (2) If, after reasonable inquiry has been made (including where appropriate consultation with the representatives of farmers and landowners), the authority are satisfied that it is not practicable to ascertain the name or address of an owner or occupier of any land to which the draft order relates, the notice required to be served on him by sub-paragraph (2)(b) may be served by addressing it to him by the description of "owner" or "occupier" of the land (describing it) and by affixing it to some conspicuous object or objects on the land.").

The noble Lord said: In moving this amendment I should also like to speak to Amendments Nos. 488A, 492A, 540C and 543ZA. This is all about consultation, to ensure that there is consultation with affected individuals at various stages of either definitive map orders under Schedule 12 or public path orders under Schedule 13. The Schedule 12 provisions for owners and occupiers to be informed of draft orders are a major step forward from the past and I should like to welcome them very much indeed. I believe it had been one of the great failures of the original legislation that owners and occupiers were not consulted sufficiently. They have always been in a particularly unique position, of knowing the ins and outs, the history, having also the documents that may exist, and so on.

However, as the Bill stands, if the owner or occupier thinks an error has been made when they have been informed, their course at present is to make a formal objection and this has to be followed by an inquiry or hearing. I do wonder whether this is strictly necessary. That is has to take place is expensive and time-wasting. Would it not be better to include owners and occupiers, therefore at an earlier stage in the consultations, namely, with the consultees in paragraph 1 of Schedule 12?

It may be said that users might object to this because they would not be in on the proceedings at that stage as well. But against that I would say that usually they will have had their say in initiating the proceedings, which is probably how the proceedings will have started.

I should like to mention two further areas of anxiety about consultation. First, the procedures where owners or occupiers cannot be found. I should like to see words to ensure that consultation took place with their representative organisations before reaching the stage when one starts affixing notices to the property itself. Of course, the representative organisations would be the NFU, the Country Landowners' Association, the Farmers' Union of Wales, perhaps, and so on. As regards the matter of procedures the words "reasonable inquiries" are mentioned prior to getting down to affixing the notices to properties. It would be useful if we could have some amplification of what those "reasonable inquiries" would be.

The second point is about re-consultations, where an order is to be confirmed after an inquiry but with variations, under Schedule 13. The authority is obliged to give owners such notice as appears requisite. Should we not amplify this by including here a minimal duty to inform owners and occupiers of new proposals which affect their land? Amendments Nos. 492A and 543ZA attempt to provide that. I beg to move.

Baroness David

The mover of the amendment mentioned farmers, landowners and so on. Would he be willing for the people who are going to use the footpaths to be consulted as well?

Lord Monk Bretton

I think that they will inevitably be consulted in the course of the proceedings. I am asking for earlier consultation for owners and I added the particular rider that, of course, the users might ask to be included at that stage too. I added the plea that I hoped that the users would see that where they had initiated the proceedings they had in fact already had the chance to submit their views in that way.

Lord Melchett

But the users would not have initiated all the proceedings. I think that it would be unwise to accept an amendment of this sort in the even-handed mood which the noble Lord, Lord Bellwin, is encouraging us to adopt, unless they were mentioned as well as the owners and occupiers.

Lord Bellwin

I well understand that in some instances preliminary consultation may be desirable, but I am far from convinced that a specific requirement is necessary. The Bill's provisions will, in fact, enable landowners to take steps to safeguard their interest. That is ensured by the requirement to notify them of orders affecting their property.

Personally, I feel that if the amendment were conceded it would almost certainly lead to a demand from the user organisation for similar concessions, all of which would make definitive map order procedures more cumbersome and the keeping of definitive maps up to date more time consuming. In the circumstances, I think that we can safely leave it to the discretion of the authorities to decide when such consultation should take place. I think that they have discretion in these matters, they are responsible and that is the way to go about it

Lord Monk Bretton

I should like to stress that it seems necessary to ensure that local authorities make a thorough job of this consultation, because if they do not they will not make a good job of the map. Therefore, it seems to me important that the degree of consultation that the Government have in mind should be very clear to all and I hope that my noble friend may be able to enlarge a little further on this matter, because it might be helpful. I also wonder whether the Government would be able to take this matter away with a view to coming forward with a more general statement regarding, in particular, reconsultation. Could it perhaps be, with all those who would be affected, and with all who had made objections, and all who had appeared at the inquiry?

Lord Bellwin

The Bill provides for preliminary consultation with other local authorities—that is, district and parish councils—because of their familiarity with the public rights of way in their areas. I recognise the importance of consultation wherever that is possible. But there is a point beyond which we cannot go because once we do that we open up the whole area of who ought to be consulted in every instance; indeed, this is the point made by the noble Baroness, Lady David, with which I have sympathy. Of course, we shall read everything that has been said, but I very much doubt whether we could help my noble friend on this occasion.

Lord Monk Bretton

Possibly we might wish to return to this at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.21 p.m.

Lord Bellwin moved Amendment No. 485: Page 76, line 32, leave out ("stating the name of the") and insert ("naming a").

The noble Lord said: For the convenience of the Committee, I shall speak to Amendment No. 486 as well. These two minor drafting amendments do no more than ensure consistency between Schedules 12 and 13 in the expressions used to describe the information to be included in the notice announcing that a draft order has been prepared. I beg to move.

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 486: Page 76, line 36, leave out ("stating") and insert ("specifying").

The noble Lord said: I spoke to this amendment when I dealt with Amendment No. 485. I beg to move.

On Question, amendment agreed to.

Baroness David moved Amendment No. 487: Page 76, line 37, leave out ("first").

The noble Baroness said: I should like to speak to Amendments Nos. 493, 519 and 540 at the same time because they cover the same point. The aim of all these amendments is to give the public adequate opportunity to object to orders of which they do not approve. We want to change the current practice for giving publicity to draft public path orders and the orders whereby the objection period runs from the date of the first publication of the notice.

By deleting the word, "first", our amendments would provide that the objection period would be 28 or 42 days, depending on the type of order, from the date of publication of the notice. Amendment No. 487 applies this to the proposed procedures for definitive map amendment orders in Schedule 12, Amendment No 493 to the proposed procedures for advertising modifications to such orders and Amendments Nos. 519 and 540 to public path orders.

Under the present arrangements, notice of a public path order has to be published in the London Gazette and in at least one local newspaper. Only the first of these to be published has to allow the requisite number of days for objections. The second can quite legally allow a shorter period and there have certainly been instances when a shorter period has been given, particularly when the London Gazette has suffered delayed publication through industrial disputes. It seems quite unfair on the person who chooses to get his information from a particular source that he might, quite legally on occasion, be given a shorter period of time in which to consider the order and submit objections, if he so wishes.

There is a precedent for this proposal in Section 215(1) of the Town and Country Planning Act 1971 which prescribes the procedure to be followed by the Secretary of State when he publishes notices of a draft order under Sections 209, 211, 212 or 214(1)(a) of that Act. As we are about to deal with the next point fairly soon, perhaps I could say that noble Lords opposite have put down an amendment to delete the publishing of a notice in the London Gazette. We should certainly oppose that because we want people to have the greatest possible opportunity to know what is going on, so that they can put in their objections if they want to. I also understand that an alternative package has been discussed and agreed by the Rights of Way Review Committee chaired by Michael Spicer, MP, so perhaps we shall hear more of that from the Government when they reply. We want to ensure that the public has adequate opportunity to know and to be able to consider what is being proposed. I beg to move.

Lord Bellwin

This amendment has clearly been inspired by the frequent delays that have occurred in recent times in the publication and distribution of the London Gazette. As drafted, Schedule 12 provides for the notice announcing that a definitive map order has been prepared shall be published in both the London Gazette and a local newspaper and shall specify a period of not less than 42 days for lodging objections. The arrangements I hope authorities would adopt in complying with these requirements would be for the notice to appear in both publications on the same date, thus ensuring that there is only one objection period. Without the qualification as to the commencement of the objection period authorities would be placed in the unfortunate position of being in default of the statutes if for some reason the appearance of the notice in either publication was delayed. As a result the validity of the order would be questionable. I am satisfied, therefore, that the qualification serves a useful purpose and is worthy of retention.

Several noble Lords will by now be aware that an alternative procedure for publicising these and public path orders, which does away with the need to advertise in the London Gazette, has been drawn up by Michael Spicer's committee. These proposals have been accepted in general terms by the Government and amendments to both Schedules 12 and 13 giving effect to the proposals will be tabled at a later stage. There will, however, still be a need to retain the qualification which these amendments seek to remove to cover those cases where it may be desirable to advertise in more than one local newspaper. I trust that in the circumstances the noble Baroness may feel able to withdraw her amendment.

Baroness David

If we know that some amendments will be put down by the Government at Report stage we shall wait to see what they are, and I shall withdraw this amendment for the moment.

Amendment, by leave, withdrawn.

Lord Monk Bretton

had given notice of his intention to move Amendment No. 487A: Page 76, line 42, leave out ("the London Gazette and also"). The noble Lord said: I should like to speak to Amendments Nos. 487A and 540B at the same time. I merely have to say now that the noble Baroness, Lady David, and my noble friend Lord Bellwin have practically dealt with this matter of advertising in the London Gazette. I am particularly pleased to hear that my noble friend is considering bringing forward amendments at a later stage in the Bill that are very much in accord with the ones that we have set down. In view of that, there is no necessity for me to move this amendment.

[Amendment No. 487A not moved.]

Viscount Hanworth moved Amendment No. 488:

Page 77, line 4, at end insert— ("(d) by causing a copy of the notice to be displayed in a prominent position at the ends of so much of any footpath, bridleway, road used as a public path or byway open to all traffic as is affected by the draft order.").

The noble Viscount said: The noble Lord, Lord Kilmarnock, has asked me to move this amendment for him. The purpose behind it is to ensure that when a draft definitive map amendment or reclassification order is published under Clauses 39 or 40, notice of its publication will be placed on the path or way concerned. This is both desirable and comparable to other legislation. Although there will be notices in the local paper they are not always easily picked up, and I think it is desirable to give the public concerned every possible opportunity of knowing what may be going on. I beg to move.

Lord Moyne

I am wondering whether there are two defects in the amendment. First, the reference to "the notice" sounds like a piece of paper with something written on it, when what the public want is a signpost saying "bridlepath" or whatever it may be. Secondly, I understood that the whole purpose of this part of the Bill was to abolish roads used as public paths and make them either into byways or bridleways, and I would have thought therefore that that should be omitted from the amendment.

Lord Bellwin

I am not opposed in principle to the substance of the amendment. Indeed, it is a feature of the alternative procedure for publicising these and public path creation, diversion and extinguishment orders recently presented to the Government by Michael Spicer's informal rights of way committee. These proposals have been accepted in general by the Government and appropriate amendments to Schedules 12 and 13 will be tabled at a later stage. In those circumstances the noble Lord may be prepared to withdraw the amendment.

Viscount Hanworth

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 488A not moved.]

9.32 p.m.

Lord Melchett moved Amendment No. 489: Page 77, line 28, after ("inquiry") insert ("or hearing").

The noble Lord said: With this amendment, I should like to speak to a long list of amendments which it might be of assistance to the Committee if I numbered. They are Nos.: 491, 494, 515, 516, 517, 521, 522, 523, 525, 526, 527, 530, 531, 532, 533, 534, 535, 536, 537, 538, 541, 542, 543, 544, 545 and 552. The mere fact of my moving such a large number of amendments together should commend all of them to the Government without my needing to say more, but I am afraid that as this is a somewhat controversial issue I shall have to say more.

The amendments are all concerned with the proposal to give local authorities jurisdiction over opposed proposals of theirs concerning public path changes; that is, the creation of new public paths, the diversion of public paths or the extinguishment of public paths, and in changes to definitive maps and statements. Amendments Nos. 489, 491 and 494, of which 491 is the key amendment, would give the Secretary of State jurisdiction over opposed definitive map amendment orders. This is analogous to retaining his existing jurisdiction over definitive map review procedures. The remaining 23 amendments would retain the status quo whereby the Secretary of State has jurisdiction over opposed public path orders made under the Town and Country Planning Act 1971 and the Highways Act 1980.

The reason for not simply deleting this schedule and retaining the position as it is under existing legislation is that there is a useful change in wording in the Bill, which is a change from the orders being made and then confirmed afterwards. When one sees an order being made one would normally assume that that meant it had actually been made, but it does not; it means it is proposed. That change has been made and would, under this series of amendments, stand unaltered.

Amendment No. 552 would allow the Secretary of State to transfer jurisdiction to a person appointed by him for that purpose. In practice that would mean an inspector appointed to hold a public inquiry. The inspector would actually give a decision, instead of merely making a recommendation. All I want to say about this series of amendments has to be said with that in mind: that I am not in fact suggesting that we return to the position as it is now, where the department and the Secretary of State have a role as independent arbiters, but that this should be done by the inspectors who will be appointed to hear inquiries.

I think it would be fair to say that the proposal to transfer jurisdiction to local authorities is probably the most difficult to defend of the proposals in Part III of the Bill. This matter has arisen very recently. The other controversial issue, about bulls on footpaths, has been under consideration for a number of years, but the point with which we are now concerned came up only three months before the Bill itself was published, at the end of August, at the time of one of the last consultation papers to be issued by the department. In other words it was not a matter that was considered in the round of consultations in the previous year, 1979, nor was any such proposal included in the Government's September 1979 White Paper, Central Government Controls over Local Authorities, Cmnd. 7634, which dealt with a number of other matters where the Government were considering transferring functions from central Government to local authorities.

Public path orders were clearly considered in the review which led to the White Paper, because they are included in an annex to the White Paper. The White Paper stated in paragraph 5: There are for example very many provisions which allow third parties to appeal to Ministers against local authority decisions. The Government has looked closely at the need for all these appeals to come to Ministers. It has concluded that in the majority of cases a right of appeal to Ministers is generally the most efficient way consistent with natural justice of enabling a third party to have his case heard on its merits". Paragraph 5 of the White Paper continued: the simple appeal to the Minister seems to be in general the best approach and the Government has accepted that provisions which protect third parties against the decisions of local authorities should only be withdrawn or replaced by other safeguards after careful individual review".

It seems to me difficult to accept that in a consultation paper published, as I said, a very short time before the Bill itself was published, there really was time for the careful individual review which the Government's own White Paper envisaged before a change of this kind was made—in other words, a change which removed people's right of appeal from the decision by a local authority. It seems to me, and I think to almost everyone else who has looked at this part of the Bill, that this is clearly a case where the right of appeal should be to the Secretary of State and not to the local authority.

At Second Reading in your Lordships' House, and in other places, the Government have put forward a number of arguments, and, because this is such an important and long series of amendments, I should like very briefly to deal with one or two of those arguments. First, it was stated by the noble Lord, Lord Bellwin, on Second Reading, I think, and certainly it was stated in the Government's consultative paper in August of last year, that public rights of way are essentially local matters and are therefore best decided by local authorities.

That is clearly the case in some right of way disputes, but I question whether it is true of, for example, a proposal to create a new right of way as part of a long-distance footpath, such as the Pennine Way, which is itself a long-distance path, approved by the Secretary of State, and paid for entirely out of national funds. In the area in which I live in Norfolk, there is a current proposal, which I strongly welcome, for a new long-distance path, the Peddar's Way and North Norfolk Coast Path. Is that purely a local matter? It clearly is not. There are involved a number of important issues that will have to be settled by the Countryside Commission, which is not a local, but a national, body, and ultimately by the Secretary of State, who is not going to make local decisions about such a matter. These are national footpath issues. If somebody was going to put forward a proposal to create a new bit of the Pennine Way, to divert part of it or to extinguish part of it, would that be a purely local issue? It clearly would not. The Pennine Way is a national asset walked by hundreds of people each year. Our network of long-distance footpaths is considered to be something of which this country is rightly very proud, and it clearly would not be a local issue.

To give the noble Lord another example, I would suggest an area like the Isle of Wight, where I have walked on the local footpaths and which has a really excellent network of local public footpaths with very good guides to them. Again, issues affecting those are not purely local because they are used in the main by the very large numbers of holidaymakers that visit an area like that. So it does not seem to me that the proposition that these are purely local issues is really one which can be sustained.

The second major point, of course, is that local authorities are not impartial in these cases. There will be some local authorities—and I think noble Lords may know of at least one which I would have in mind—that would be very keen on creating a lot more new public footpaths in their area. Under the Bill's proposals they would be able to put forward a series of proposals for, let us say, 50 miles of new public footpaths. They would presumably face objections from people like the National Farmers' Union, the landowners and the farmers involved; and they would say, "Well, if there are objections we will appoint a public inquiry".

Then there will be an inspector appointed from the panel which has been drawn up by the Secretary of State—a concession which the Government announced at Second Reading—and this inspector from the panel appointed by the Secretary of State would come down, there would be a major public inquiry at enormous expense, and the NFU, the CLA and everybody else would spend a lot of time and effort objecting to this local authority's proposal to establish 50 new miles of footpath. The inspector would then find in favour of the objectors and would say that the local authority was wrong, but under the provisions of the Bill the local authority would say, "Scrub that—we want to go ahead and do it". That, then, would be the end of the matter; there would be no further appeal, no right to go to anyone; the local authority which had originally made these proposals would have the final decision in going ahead with them, and in those circumstances all the rest of it seems to me to be a charade and a waste of time.

I am not saying, of course, that all local authorities would act in that irresponsible way, but I dare say that the noble Lord feels at the moment that there are at least one or two local authorities controlled by my own party that are not acting in an entirely responsible way; so even if we do not agree on particular cases I hope that we can at least agree that all local authorities do not always act in ways which Ministers and others see as entirely responsible.

The analogy, of course, is with appeals in regard to planning. I understand that roughly 12,990 planning appeals were received by the Department of the Environment in 1979, and 16,208 in 1980. I do not know how many appeals on public footpath orders were received by the Department of the Environment, but I understand that it is about 200, compared to the 16,000-odd planning appeals which the Secretary of State determined. If that is the case, it seems to me that we are dealing with a very small number of appeals which the Government are attempting to shift back on to local authorities; and, as I understand it, there is absolutely no question that those 16,208 planning appeals should not be heard by the Secretary of State and should be transferred to local authorities.

Many of those planning appeals, of course, concern very small matters—single houses and matters of local significance—but, nevertheless, because the local authority is, as it were, a protagonist in the case it is felt fair that the Secretary of State should hear them, all 16,208 of them, while 200-odd appeals on path orders are felt to be, I suppose, insufficiently important for them to be transferred back to the local authority in what I would see as an unjust and unfair way.

The other argument, as I understand it, on the Government side is that all this is an enormous saving in public manpower and public expense. I very much doubt if that is the case, because, of course, instead of one group of officials at the Department of Environment hearing all these cases there will be however many local authorities there are, and however many local authority solicitors there are, all dealing individually with them; and I am not sure that that is in the end going to lead us to a saving in public expenditure although it may provide some minor help to the Secretary of State at the Department of the Environment in meeting some arbitrary target which he has been set to meet. But it really does not seem to me to be a serious argument in favour of what the Government are proposing.

In any event, my Amendment No. 552 would meet that by allowing the inspector to make the final decision. The department would be rid of all their extra work and all the civil servants which the noble Lord and his colleagues want to get rid of could be got rid of and all the work which the inspectors do at local inquiries would not be wasted when they are overruled by the local authorities because they could take a decision which would be a final decision. While that might not be as appropriate as an appeal direct to the Secretary of State, it would be a satisfactory conclusion for all sides and it would be one which was acceptable to all sides and which would achieve these savings if the Government were determined to achieve them and not allow us to have a lot of local inquiries which are a waste of time because the local authority, which has originally made the proposal which is being objected to, simply decide to carry on regardless of the inspector's findings.

A leading article in The Times of last month said of this part of the Bill: The proposals to end the right of objectors to planned footpath closures"— and in fact this applies as was made clear to new footpaths or diversions as well as closures— to appeal to the Minister looks as unwarrantable now as it did when first mooted. The local council will often not seem an impartial adjudicator in such cases and the right of appeal could hardly be called unimportant when the Minister rejects almost half of the 250 closure plans referred to him each year". If the Government have not listened to me, I hope that they will listen to the leading article in The Times and will accept these amendments. I beg to move.

9.47 p.m.

Lord Teviot

I should like to agree with the noble Lord, Lord Melchett. I should not have agreed with Lord Melchett had I not presided over an annual general meeting recently of the county group of the Ramblers' Association when this point came up. There was a distinguished county councillor who many years ago had been a member of another place and of the party opposite, who felt strongly that the final arbiter should be the county and the county's inspectors. During the course of this brief discussion, there were several articulate persons who very clearly made the point which I shall make briefly—and I will not go through all the points as did the noble Lord, Lord Melchett—that they wished the final arbiter to be the Department of the Environment and that it should not be left to the county councils because they did not dot the i's or cross the t's. I think this is an important amendment and if the noble Lord wishes to press it I will be with him.

Lord Avebury

May I say one word about this amendment, having put down a short one designed to do much the same thing? My amendment, equivalent to his 40, is No. 529. While I daresay it does not dot all the i's and cross all the t's as did Lord Melchett's amendment, I do not think it is worth going to an enormous amount of trouble, because the Government never accept any of my amendments. When on the rare occasions they say they will look at them and come back to them on Report stage with one of their own, I am convinced all the more that I need not have gone to all the trouble and spent the time on drafting because the Government will do it for me.

I agree with the principle outlined by Lord Melchett. We are dealing with a matter which is not of purely local interest and which spans the boundaries of local authorities who are to be left, if the Bill is untouched, to make these decisions on a piecemeal basis according to different criteria as you cross the boundary between one local authority and another. This is a most important point: in considering an extensive public path which crosses the boundaries of several counties there is a need to ensure some degree of uniformity regarding the policy to be followed. If the Bill is left untouched, we will have different local authorities coming to different conclusions regarding the various stretches of this highway. I think that that is a point which the Government have not sufficiently considered. Maybe they have had the opportunity as had the noble Lord who has just spoken, about listening to meetings such as the one he presided over. If they had listened to the views of the ramblers, I feel sure that the Bill would never have been drafted in this form in the first place, and I hope that it is not too late to rectify it now.

Lord Gisborough

I hope that the noble Lord will accept this amendment. I think that the arguments have been well put and it should be accepted.

Viscount Hanworth

I should like to support everything that has been said on this amendment and add one further point. It is idle to suppose that an appeal to the High Court is a practical proposition for most people. The cost is very great and even if you win you still have to pay something. In consequence, it is no answer to say you can appeal to the High Court, it is impractical for most people.

Lord Nathan

May I support Lord Melchett's amendment without rehearsing all the points he made? There are two matters to which I should like to draw attention. First, we are dealing with a Part of the Bill covering public rights of way. These public rights of way have been enjoyed—as the noble Lord, Lord Houghton, reminded us—by increasing numbers of people from outside the locality in which those rights of way exist. This is one of the difficulties with which landowners and farmers have been confronted. It is a real difficulty. They find masses of people rambling and coming across their land, exercising their rights of way. It was quite different in ancient days when it was merely local people making their way along the well-known paths.

They are public rights of way and large numbers of the public enjoy them from all over the country. Many of us walk or ride over long stretches, not just on the South Downs way and the Pennine Way. I rode before 1949 from Kent to Somerset using my rights of way. They were not at that time of course on the maps which are now available. This will continue and increase. So the local authorities are being put in a quasi-judicial position regarding the ascertainment of the rights of way and their determination. This seems to me to be quite unacceptable without any appeal. Two reasons have already been given by the noble Lord, Lord Melchett. One he did not mention; the orders made by the local authority are presumably to be drawn up by their legal officers within the local authority. Those legal officers will then put forward the merits of the order at any inquiry and will also be the people to whom the local authority will refer on legal matters arising on the adjudication. This seems an entirely impossible position for any lawyer or lawyer's department to be put in. That is one reason why I believe that there must be an independent tribunal to which an appeal can be made, be it an inspector or be it the Secretary of State.

The other point which was made by the noble Lord, Lord Melchett, was to refer to the position regarding town and country planning. I believe the analogy is wholly misleading. Town and country planning deals with legislation concerned with the assessment of policy, the advantages and disadvantages of determining whether a proposed development shall take place or not. It is not a question of law, it is a question of administration, a matter of policy. The questions at issue in this case are primarily questions of law and of rights, though secondarily questions of convenience, but within a much narrower compass. I do not think that the analogy of town and country planning is a sound one.

9.55 p.m.

Lord Bellwin

As the noble Lord, Lord Melchett, acknowledged, the amendments are aimed primarily at frustrating the intended transfer to the local authorities of the responsibility for the determination of disputed proposals to amend definitive maps and statements.

Despite what has been said, I am still convinced that we are right in bestowing these additional powers on local authorities and, for that matter, similar responsibilities in relation to the determination of orders for the creation, diversion or stopping up of rights of way to which there are objections. I can assure your Lordships that the Government's decision was not taken lightly and without careful consideration of all the facts and the responses received to the consultation paper published last August.

The Government came to office committed, among other things, to the policy of getting rid of unnecessary and unjustifiable bureaucratic controls over the activities of local authorities. This proposal is without doubt consistent with that philosophy. The amendment of definitive maps and statements depends entirely on the discovery and evaluation of facts and evidence of an essentially local nature. As such, they are a paramount example of a local matter that can and should be handled locally without the unjustified intervention of central Government. Furthermore, I am satisfied that local authorities have the expertise and capacity to absorb these additional functions without any significant increase in public expenditure. Of course, we recognise the misgivings which some have about the way that local authorities will handle these powers and, in particular, the fear that they will be exercised to the detriment of users of public rights of way.

Lord Melchett

The noble Lord is reading his brief very well, but he is not responding to what I said. The case I gave in particular was of a local authority proposing 50 miles of new rights of way. Quite deliberately, I did not try to cast this as being simply a worry about local authorities closing rights of way, because I do not think that is a fair reflection of the case which has been put from all sides of the Committee against the Government's proposals.

Lord Bellwin

If the noble Lord will allow me, as I allowed him, to develop my argument then I will come to the points he raised and answer them, I hope; but I think what I have to say on this aspect of it needs to be said to put the matter into proper context. That is, that what we are concerned with here is the establishment of a factual record of public rights of way—not whether a right of way ought to exist, but whether it does exist. We are concerned with the ascertainment of facts. Does the Secretary of State really need to be involved in this exercise? Are we really saying that local authorities cannot be entrusted with this task? It is not as if, in relation to definitive maps, they have any axe to grind. It is not even a matter on which they can exercise discretion once the facts have been established. If evidence is brought that a right of way exists, they have no choice but to put it on the map.

Having said that, it also has to be said that in the establishing of the facts there will be cases where a judgment has to be made and here, of course, local authorities will be assisted by the inspector who is appointed by the Secretary of State, who will conduct the public inquiries they will have to hold when objections are made. The evidence will be produced and examined in open forum before a person independent of the authority. His report will be publicly available and the authority will be required to state the reasons for their decisions. I think that to suggest that local authorities will, in cavalier fashion, frequently overturn an inspector's recommendations when it suits their book to do so is not really good enough. Why should it be assumed that the elected members of an authority will not be guided by the conclusions of the inspector? They will have to give very weighty reasons for not doing so.

Local authorities are there to serve the electorate but, equally important, they are answerable to the electorate. I take the point made by the noble Lord, Lord Melchett, about the individual maverick authority. Of course you find that just as you find situations of that kind of all circumstances; but in the main —and after all this is what we must be concerned with here—the fact is that if local authorities do not follow the recommendations in a case of this kind made by an inspector then they have to be prepared to give some very weighty answers.

I cannot accept, and not least in the light of my own experience, that authorities are so insensitive to local feelings and interests or that they are so inconsiderate as the noble Lord has suggested. Local authorities are not inanimate bodies. They are made up of people who have to work within the laws and regulations of the land, despite some deviations from time to time. But, in the main, the record is a first-class one, going back over many years. They have to look after the interests of the people in the areas which they represent, but, as I said a moment ago, most important of all, they have to be responsible for the decisions which they make and they have to live with them.

The noble Lord—and here I should like to cover the points which he mentioned—talked about cases such as the Pennine Way. The Secretary of State will still have reserve powers to create, divert or extinguish public paths, when it is in the national interests so to do, and I submit that the case which he mentioned would be one such case. Therefore, I do not think we need fear too much from that.

Lord Melchett

if the noble Lord is about to leave that point, may I ask whether that would apply to an area such as the Isle of Wight? That has an excellent network of public footpaths which, by and large, are used by people who go there on holiday. The noble Lord says that a local authority is responsive to the local electors, but the people who use the paths on the Isle of Wight are not, by and large, local electors.

Lord Bellwin

If the noble Lord will allow me, I am coming to that point as well. Indeed, it is the very next point that I want to make. I understand the point that is being made—and I think that the noble Lord, Lord Nathan, also touched on this—is that public rights of way are far from being a local matter, because of the extent to which they are used by persons who are not resident in the locality. With the exception of designated long-distance routes, which, in any event, serve a specific purpose and require specific approval, the primary purpose of the path network is to serve both functional and recreational needs of the local community. Their use by visitors from outside the area does not mean that local needs should be subordinated, or that the responsibility for the final say in these matters should not rest with the elected representatives of the local community. I think that that is a perfectly fair point to make.

The suggestion of the noble Lord, Lord Melchett, about the inspector being the final arbiter, is an interesting one. So far as this matter is concerned, it is certainly somewhat novel. I listened with much interest to try to feel how far this might be a possibility and, of course, we shall read carefully what the noble Lord said and think about it. But I must say that my first reaction is that the inspector is an employee of the Secretary of State and, therefore, he will be making his decision in the name of the Secretary of State. As I have already said, this is not where the decision ought properly to belong and, for that reason, I doubt whether we could go along with what the noble Lord said. After all, the inspector would not be accountable to the people; he could be accountable only to the Secretary of State who, we submit, should not be involved.

Clearly, there is much concern in the House about this point and a view will have to be taken. We are most anxious indeed that, at the end of the day, while not prejudicing the situation of the users in any way, the local authority should take the responsibility of making decisions of this kind. As regards whether it would cost more or less, I could give arguments which would show that local authorities are already involved in this kind of decision-making. Therefore, as I said, costs hardly enter into this, because there will not be an increase in public expenditure. But I should prefer to put the thrust of the argument on the point I made about the responsibilities and obligations of local authorities. They have obligations in this matter. They have to answer for and live with the decisions that they make. I think it right that the responsibility should go to them, and I hope that, if the noble Lord presses his amendment, there will, at least, be as many people who think in the way I do as think in the way he does.

Lord Underhill

In the interests of time, may I make just two very brief points, because the noble Lord the Minister has stressed the local contact in this matter. One notices in Schedule 12 that the Government recognise that this goes beyond the locality, in so far as the notices have to be given to the London Gazette. That, surely, is not done just because of local interests. Apart from other parts of the country which I visit, let us consider what happens within 20 miles of London. I live on the Essex side of London where practically all the footpaths are used primarily not by people in the locality but by people from London going into the countryside. Therefore, it is absolutely wrong for the Minister to say that this is a purely local matter. It is a matter which affects people who want to enjoy the countryside as well as those who live in it.

Lord Bellwin

When the noble Lord, Lord Underhill, reads Hansard he will see that I covered that very point.

Lord Gisborough

The noble Lord, Lord Bellwin, made a big point of the fact that councils have a great responsibility to their electors. This strengthens enormously the point which was made by the noble Lord, Lord Melchett, who said that a maverick council might wish to make 50 footpaths and would certainly have the whole of their electorate on their side, while they would have the few farmers against them. Therefore, they would be protecting their great electorate. The argument, I am afraid, went against the noble Lord's own case.

Lord Melchett

I say to the noble Lord with all seriousness that on this point I think the Government's answer is by a long way weaker than their arguments on any of the other points which we have had to consider. This is an affront to natural justice. The noble Lord must know that in his heart of hearts. He says that this is a local matter. Even if we accepted that, it still is not fair that an authority which proposes the extinguishment, or the creation or the diversion of a path which is then objected to, whether by landowners, farmers or path users, and which holds a public inquiry with an inspector appointed from a panel which the Secretary of State has set up should have the final say and be able completely to ignore the public. Nothing in the Bill reflects what the noble Lord had to say in his brief about that. Nothing in the Bill says that they have got to give very sound reasons, or take it very seriously, and so on. It may be that a number of local authorities would.

The noble Lord said that all we need to be concerned about is what happens "in the main". Well, what about the farmers in the local authority area where they create 50 miles of extra footpaths? Is the noble Lord not concerned about that? Is that because it does not happen in the main, so none of us needs to be concerned? What about the path users in an area where the public footpaths are extinguished by a local authority acting against the inspector's findings? Are we not to worry about that because it does not happen in the main? It does not seem to me to be what a system of appeals, inquiries and natural justice should be about. It is about the rights of the individual people concerned, or the groups of users concerned—not what happens in the main.

When he thinks about the reply he has given I do not think that the noble Lord will feel very happy about the line he has adopted. He said that he would consider the point I had made about inspectors making the final decision, but he said he thought there would be some objections to that. When he considers it, I hope he will find that those objections evaporate. In August 1979 the Government issued a consultation paper in which they proposed what I am proposing; namely, to give inspectors the power to take decisions at path inquiries. In paragraph 14 the consultation paper says that the inspectors appointed to handle this work will be suitably qualified and free to consult the department's lawyers whenever there is need for guidance on a particular point of law. This was something which the Government themselves proposed in 1979. It would meet the worries which are felt on all sides of the Committee and by all the interests concerned.

Of course we accept what the noble Lord has said about the good faith of most local authorities most of the time, but it is a little hard, as it always has been, when people have looked for justice to accept that somebody making a proposal is going to be a fair, final judge of whether that proposal should go ahead. Whenever throughout the history of this country people have looked for justice, that has never been found to be satisfactory. I do not think the noble Lord will convince anybody on any side of the Committee that it will be satisfactory in this Bill, so I hope that when he takes the matter away and looks at the possibility of an inspector making a decision he will consider the point very seriously. If he does not, I am quite sure that all sides of the House at the Report stage will make sure that the Bill does reflect a sense of natural justice. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.10 p.m.

Lord Melchett moved Amendment No. 490: Page 77, line 31, leave out ("with or").

The noble Lord said: With this amendment I should like to speak to Amendment No. 520. The Bill proposes to allow order-making authorities to modify unopposed orders, which until now has not been the case. These amendments would take us back to the existing position. At present an authority wishing to modify an order has to submit the proposed modification to the Secretary of State for his consideration and in the case of a modification which will affect land not covered by the draft order there must be some notification of the proposal to the public.

It does not seem to me to be right that authorities should be given powers to modify unopposed orders, except perhaps to make minor corrections without affecting the substance of the order. To do so really would prejudice the position of people who had considered the draft proposal but decided not to oppose it because they thought it was all right, only to find that the authority had substantially modified it in the meantime. They would then have lost their right to object in circumstances where the authority had produced something which they would have wished to object to.

This is not as minor an issue as it may appear to be, because public path orders and definitive maps orders are—and will continue to be—important legal documents, and it is vital that they should be correctly drafted. I think some of the problems into which this very complicated area of law takes us have undoubtedly been caused because in the past some of these orders have been carelessly drafted, and the provision in the Bill seems to me to be likely to make that situation worse rather than better; in other words, if orders can be changed without the degree of public scrutiny which would ensure that they are not badly drafted.

The Government's Amendment No. 491C, which we have yet to reach, increases the coverage of paragraph 5 of Schedule 12, which deals with the occasions on which some notification of modifications must be given, but it does not go so far as these amendments and therefore in my view it does not go far enough, because it still leaves open the possibility of an authority making changes in an order to which no objections have been made and, as I hope I have made clear in my remarks, that is still an important point. With that brief explanation I hope that the amendments will be acceptable. I beg to move.

Lord Bellwin

This is consequential on the Government decision which we have been discussing, to transfer to local authorities the responsibility for determining both opposed and unopposed public right of way orders. In the event of an authority deciding to modify an opposed order, the Bill provides that those modifications should be advertised so that the public would have an opportunity to object to the proposals. Therefore I should have thought that as it stands the Bill adequately protects the public's interest.

Lord Melchett

What about the case where there are no objections and the authority then modifies the proposal? That was the point I was trying to make. Under those circumstances the authority could modify the proposal in a way that leaves it in a state that somebody would have wished to object to it if he had known it was going to be so modified. I know that the modifications would generally be of a minor drafting nature, but what I am trying to make clear is that even that can be very important, given the fact that these are legal documents and they need to be properly drafted. It should not be possible for an authority to change something where nobody has objected, because people might then want to object.

Lord Bellwin

I think the noble Lord has a point. I think we would want to think about this one, so we will gladly do that.

Lord Melchett

I am very grateful to the noble Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 491 and 491ZA not moved.]

Lord Bellwin moved Amendment No. 491A: Page 77, line 36, after ("held") insert ("by a person appointed by the Secretary of State").

The noble Lord said: For the convenience of the Committee I will speak also to Amendments Nos. 491B, 494A and 494B. Your Lordships will recollect the assurance given by my noble friend Lord Avon during the course of the Second Reading, that the Government would be tabling amendments to make it clear that the person nominated to conduct inquiries into opposed definitive map orders would be appointed by my right honourable friend the Secretary of State. Corresponding amendments have been tabled to Schedule 13 in relation to the procedure for dealing with opposed public path orders. These amendments give effect to that undertaking. I beg to move.

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 491B: >Page 77, line 36, leave out ("appointed to hold the inquiry") and insert ("so appointed").

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 491C:

Page 77, leave out lines 43 to 46 and insert— ("(b) not to show any way shown in the draft order or to show any way not so shown; or (c) to show as a highway of one description a way which is shown in the draft order as a highway of another description,").

The noble Lord said: This is a consequential amendment. I beg to move.

On Question, amendment agreed to.

Baroness David moved Amendment No. 492: Page 78, line 2, leave out ("such notice as appears to them requisite") and insert ("notice in the manner specified in paragraph 2(2)").

The noble Baroness said: Amendment No. 492 is designed to question the discretion given in the Bill on how modifications to draft orders should be advertised. It says in the Bill that the authority shall give "such notice as appears to them requisite". Now the decision lies in the hands of the Secretary of State, who appears, as far as we are aware, to give notice of his proposal to modify an order in the same way as the original order was publicised. However, if the discretion is transferred to local authorities it is likely to be exercised in varying ways. Amendments tabled by the noble Viscount, Lord Ridley, president of the Association of County Councils, would appear to suggest that publication in one local newspaper will be regarded as sufficient notice.

It seems to us that, if the job of advertising modifications is to be transferred to local authorities, they must not be allowed such wide discretion. A modification can in its way be just as important as the original order; for instance, a proposal to show on the definitive map a way as a bridleway or byway when it was only envisaged as a footpath in the draft order. If advertisement of the proposal appears in only one local newspaper people using the path, and possibly even the landowner concerned, may not know about it. Our proposal is to require notice of any modification which has to be advertised to be given the same publicity as the original draft order. I beg to move.

The Deputy Chairman of Committees (Lord Drumalbyn)

The Question is, that Amendment No. 492 be agreed to. I must point out that, if this amendment is agreed to, I cannot call Amendment No. 492A.

Lord Bellwin

The essential factor in determining what publicity should be given to modification to orders is the nature of the modification itself. A modification to upgrade a path may adversely affect a landowner but not anyone else. A modification to downgrade a path may leave the landowner unaffected but may be of great concern to path users. In other words, different modifications may affect different kinds of people. To ensure that everybody is informed of every modification would be unnecessarily wasteful of scarce resources. The authority should therefore be given the discretion to notify those they consider may be adversely affected. I feel that I cannot accept the amendment.

Baroness David

I cannot say that I think that the noble Lord has given a very satisfactory answer. How are we to be sure that they know, if it is only to be in one local newspaper, as would appear to be possibly the case? I quite appreciate that an upgrading may affect one group of people and a downgrading another. It seems to me that it is very unsatisfactory. There really ought to be the same provisions as there are for original orders because this is just as important. Could the Minister not have another think about this?

Lord Bellwin

I certainly cannot say that I shall be able to do anything about this except, of course, to say that we shall read what the noble Baroness has said. That is as far as I can go now.

Lord Melchett

Is the noble Lord really happy? These are important changes which affect both users and landowners and farmers. Is he happy for the advertisement of the proposal to appear in only one local newspaper? In my own area I suppose it could be the Lynn News or the Eastern Daily Press. Not everyone takes both of them because newspapers nowadays are expensive, let alone buying a national newspaper as well. Let us suppose that one happens to take the wrong local newspaper or indeed none, as my noble friend has just suggested to me—although the local newspapers in Norfolk are very good and one would take one or other. But if one takes the wrong newspaper, and one is a farmer, and there is a proposal to divert the path instead of along the edge of the field across the middle and so make one's farming impossible, is the advertisement really sufficient? It seems to me to be a deplorable state of affairs for all concerned.

Lord Bellwin

I would come back to the point which I made previously, namely, that the degree of publicity required is dependent upon what is proposed. Whether it involves downgrading or upgrading should be the determining factor in deciding the degree of publicity. I think that it is for the authorities to have a discretion to apply whatever publicity they feel is necessary in the prevailing circumstances.

Lord Avebury

Would they not have to serve notice on the landowner in the circumstances which the noble Lord, Lord Melchett, mentioned? It would be necessary not only to publish an order but to inform the farmer that the footpath which it was proposed to divert across one of his fields was going to be so diverted, so that the individual landowner would already be aware of the consequences of the proposal by the local authority in the circumstances envisaged by the noble Lord, Lord Melchett. I am not necessarily disagreeing with him because I think that his amendment requires to be given further thought. I am just saying that the extreme case of a person's land suffering from harmful effects as a result of these proposals would not be likely to arise from lack of publicity, because he would be notified direct.

Lord Melchett

The noble Lord, Lord Bellwin, is saying from a sedentary position that he is grateful. Maybe he could confirm that that is right. My understanding is that in the case of a modification all that they would have to do is advertise it in one local newspaper and that would be the end of the matter.

Lord Bellwin

Again it depends on the situation and the circumstances. I think, subject to checking, that what the noble Lord, Lord Avebury, said about the hypothetical situation that he put forward is probably right; but one would need to check. I still do not think there is anything dramatic in what is proposed here. There is any amount of precedent in many other ways of which I know. I do not think that there needs to be the concern that there would seem to be.

Baroness David

I shall think about it and withdraw the amendment for the moment, but reserve the right to come back. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 492A not moved.]

Baroness David

had given notice of her intention to move Amendment No. 493: Page 78, line 4, leave out ("first"). The noble Baroness said: I spoke to this amendment earlier and shall not move it.

[Amendments Nos. 493 and 494 not moved.]

Lord Bellwin moved Amendment No. 494A: Page 78, line 9, after ("held") insert ("by a person appointed by the Secretary of State").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 494B: Page 78, line 10, leave out ("appointed to hold the inquiry") and insert ("so appointed").

The noble Lord said: Again, I spoke to this amendment earlier. I beg to move.

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 494C:

Page 78, line 12, leave out paragraph 6 and insert— ("6. In relation to a local inquiry caused to be held by an authority under paragraphs 4 or 5—

  1. (a) subsections (2) and (3) of section 250 of the Local Government Act 1972 (which relate to the giving of evidence at local inquiries) shall apply as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section;
  2. (b) the Tribunals and Inquiries Act 1971 shall apply as it applies in relation to a statutory inquiry held by the Secretary of State, but as if in section 12(1) of that Act (statement of reasons for decisions) the references to any decision taken by the Secretary of State were a reference to a decision taken by a local authority.").

The noble Lord said: This amendment applies the provisions of the Tribunals and Inquiries Act 1971 to local inquiries to be held by authorities into opposed definitive map orders. The application of subsections (2) and (3) of Section 250 of the Local Government Act 1972 would enable people to be summoned to give evidence or required to produce documents. It would also enable evidence to be taken on oath.

The application of this Act to these inquiries ensures that authorities would be obliged to notify objectors to orders and other interested parties in writing of the reasons for the decisions they reach on opposed orders. Moreover, while we have no intention of doing so immediately, it would also enable the Government, should it prove necessary, to draw up rules of procedure for these inquiries. Initially we propose to discuss with the local authorities associations the need for broad guidelines on pre- and post-inquiry procedures. I beg to move.

On Question, amendment agreed to.

Lord Bellwin moved Amendment No. 495: Page 78, line 35, leave out ("its taking effect") and insert ("the notice under paragraph 7").

The noble Lord said: This amendment is intended to tidy-up and improve the provisions in Schedule 12 on the public's right to challenge the validity of definitive map orders in the High Court on a point of law. As it stands, the schedule provides that the six-week period for questioning the validity of orders would commence on the date the order takes effect. This particular date will be fixed by the order itself and will in the majority of cases be the date on which the order is made. This could have unfortunate results in that the period for challenging orders may well have expired before the public are told that an order has been made. By linking, as the amendment does, the commencement of this period to the date of publication of the statutory notice announcing the making of an order, the chances of the public being deprived of the rights by default would be eliminated. I beg to move.

Lord Melchett

I should simply like to welcome this amendment.

On Question, amendment agreed to.

Schedule 12, as amended, agreed to.

Clause 41 [No further surveys or reviews under the 1949 Act]:

10.29 p.m.

Lord Fletcher moved Amendment No. 496: Page 36, line 2, after ("earlier") insert ("but the period for making representations or objections has expired").

The noble Lord said: I beg to move Amendment No. 496. In doing so I should like to speak to Amendments Nos. 497, 498 and 499, and perhaps to No. 499A, which I believe will be moved by my noble friend Lord Hanworth. If time permitted one could say quite a deal in support of these amendments, but I have been asked to try to be brief. When we were discussing Amendment No. 477, I said something about this particular amendment and indicated that if we had a satisfactory assurance from the Government that they would give sympathetic consideration to my noble friend's Amendment No. 477, it might not be necessary to press these amendments. I shall look forward to reading Hansard tomorrow to see exactly what the Government have said about it.

I ought just to say in support of this amendment that we are dealing here with the transitional provisions resulting from the fact that the Government are proposing to suspend consideration of current reviews. I find that very unsatisfactory. Unless we have an assurance from the Government that reviews which have reached a substantially advanced stage are proceded with without delay, as the Bill stands, the Government have the right either to require the local authority to complete the survey or to abandon it. What the local authority decide to do may well depend upon the state of the survey.

I have indicated to the Minister that there are certain surveys pending which have reached a very advanced state, and I gave him one particular example where a large number of people have made representations that there ought to be a public right of way inscribed on the definitive map, whereas at present there is no such provision on the map. I would hope that in all fairness in those cases the Secretary of State would think it right to require the local authority to complete the survey. If that is not done, in spite of all the evidence that has been accumulated, those who desire this particular right of way to be on the map—and I only mention this as one case out of several—will have lost their opportunity.

The Minister may say that the same remedy could be achieved by the provisions of Clause 39, which would enable people in that position to make representations to the local authority indicating that there is abundant evidence to justify that authority in making a modification under the new procedure. I do not want to pursue this point because I hope that we shall get a satisfactory reply from the Minister that he will see that justice is done in one or other of the ways I have suggested, or perhaps in an alternative way being suggested by my noble friend Lord Hanworth.

In support of what I am saying, may I quote from a comment I have just received from the Countryside Commission, in which they say as follows: The Commission have reservations about the transitional proposals set out in Clause 41. In particular they share the concern which has already been expressed about the apparent obligation placed on local authorities to start work afresh instead of being able to continue from the stage where the Secretary of State has transferred work to them. My concern is that a lot of the valuable work that has been done in obtaining evidence in anticipation that there would be a review should not be wasted, and that, in cases like that, there should be no obligation to start all over again but rather to make use of the evidence that has been accumulated. I beg to move.

Viscount Hanworth

I promise not to speak for more than five minutes at the most. I do not propose to move my own Amendments Nos. 498A, the paving amendment, and 499A, which is the key amendment. I have much sympathy with the Government because they have about 15,000 cases unresolved and are managing to deal with them at the rate of some 800 a year, so clearly something had to be done.

The whole of this Bill is, I am afraid, a story of delegating to local authorities everything the Government were doing previously. If one were really cynical, one could say that that saves money and staff in Whitehall and puts the cost on to the local authority. From my experience of the Army, this is what used to happen when a 20 per cent. cut was ordered to be made in Whitehall; different people in the same numbers arrived somewhere else to do the work. I am afraid that that is rather what the Government have done.

Be that as it may, we cannot accept the fact that so many cases remain outstanding, some of them at quite an advanced stage, and many objectors will suffer injustice if their objections are abandoned. My suggestion was designed to ease the work falling on the DOE by leaving the reclassification of roads used as public paths. The ramblers and others are not particularly worried about those, although there may be a few trouble spots, and that, by being postponed, would have cut the work by half. I am simply saying that the situation proposed by the Bill will not do. I am not saying that my amendment or that of my noble friend Lord Fletcher provides the answer, but unless the Government can go some way towards satisfying us on Report, then this is one of the few matters that cannot go by default, so at that stage we shall have to press an amendment, even if there is only a chance of it succeeding.

I hope, even if the Government do not look favourably at many other aspects of the Bill, they will look carefully at this one and w ill insert words which will satisfy us that at least these 15,000 cases will not go by default and be shelved or that total responsibility will be given to local authorities. Let us remember that their situation is just as bad as that of the DOE. In recent years more and more work has been given to local authorities, who do not have enough money or staff today, and therefore it is idle to suppose they can do any better than the DOE in this matter. An answer must be found.

Lord Bellwin

I cannot accept the final argument of the noble Viscount, Lord Hanworth. With the change in procedures, given the fact that the requirements for deciding these matters which have pertained hitherto will not apply in the future, and given that the circumstances will be quite different, that argument does not have any credence. But I wish at the outset to give the noble Lord, Lord Fletcher, an assurance that reviews which have reached an advanced stage will be allowed to proceed to completion. That is important, and I am glad to be able to tell him that immediately. I have a substantial speech which I could make on the subject, but I would prefer to consider what Lord Fletcher said; some of the points he made were very relevant and I should like to think further about them. In those circumstances, he might feel able to withdraw the amendment.

Lord Fletcher

I am obliged to the Minister. My noble friend Lord Hanworth made one of a number of serious points to emerge on this subject, but in view of the Minister's assurance, and in anticipation that favourable consideration will be given to the points I made, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 497 to 499A not moved.]

10.40 p.m.

Viscount Hanworth moved Amendment No. 500: >Page 36, line 9, after ("shall") insert ("by order").

The noble Viscount said: Clause 41(2) requires surveying authorities for any part of their area without a definitive map to prepare a map and statement which will serve as a definitive map. It is unclear how the authorities will actually carry out this task. We have presumed that the method will be by means of orders as provided in Clause 39(2). Amendment No. 500 seeks to make it clear that this procedure is the one which will be followed. Amendment No. 501 also amends Clause 41(2), the purpose being to ensure that a surveying authority preparing a map and statement for an area for the first time shall take into account the relevant evidence as to the existence of rights of way. The amendment follows as closely as possible the wording of Clause 39(3)(c), so as to ensure consistency with the procedure for amending existing maps and statements.

Amendments Nos. 502, 503, 504, and 504A are intended to simplify the task of surveying authorities in preparing maps and statements. The amendments seek to ensure that the matters covered in paragraphs (a) and (b) of Clause 41(3) are included ab initio in the map and statement prepared by order under Clause 41(2). It will then be unnecessary to make further orders immediately after the map and statement have been prepared. Amendment No. 505 is necessary because Amendment No. 500 provides for orders to be made under subsection (2) and Amendment No. 502 removes the order-making provision from subsection (3). I hope that the Minister can follow that. I beg to move.

Lord Beliwin

It is not easy. I should like to thank the noble Viscount, Lord Hanworth, for his detailed explanation, which I shall have to read more closely tomorrow. I think that, when I have done so, I should be in a better position to answer than I would if I simply referred to the brief before me. I cannot accept the amendment, but in view of the lateness of the hour I would say simply that I shall have a look at it. I cannot offer any great hope; but of course I shall look at it.

Viscount Hanworth

I thank the noble Lord for his reply. This is merely a question of seeing that the local authorities go about the map-making in a reasonable kind of way. Therefore, it is not a vital amendment, but it is, I am afraid, another of those that I should like the noble Lord to consider, to see whether he thinks that something useful could be included in the Bill. It is not a matter that I consider should be brought back again by myself at Report. So I hope that, if the Minister feels that something useful can be done, he will produce an amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 501 to 505B not moved.]

Clause 41 agreed to.

Lord Denham

I think we have reached the stage of the Bill at which we have agreed we might possibly resume the House. I hope that we call make considerable progress on Thursday and can finish the Committee stage. I beg to move that the House do now resume.

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

House resumed.