Lords Sitting of 16 March 1981

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter.

Nuclear Test Ban: Working Group
Lord Brockway: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government on what grounds the United Kingdom representative at the Committee on Disarmament at Geneva, supported by the representative of the United States of America, opposed the proposal of the majority committee of 21 of unaligned nations that a working group should be established to facilitate the conclusion of a treaty prohibiting underground tests of nuclear weapons.
The Earl of Avon: My Lords, we recognise the widespread international interest in the test ban negotiations. But we do not at present believe that a working group on this subject in the Committee on Disarmament would be likely to advance the prospects for a treaty, until the negotiating nuclear weapon states have reached a greater measure of agreement on an issue which is vital to their security.
Lord Brockway: My Lords, while thanking the Minister for that reply, may I ask whether a working party would not actually offer aid to the tripartite discussions which are going on, and be complementary to those discussions and service those discussions? Is the Minister aware that the other three nuclear powers—other than America and Britain—have all accepted this proposal? Is he aware that at Geneva the Soviet Union said that it had no objections, and it is part of the tripartite discussions? Is he aware that France indicated that it would accept the proposal, although it would not participate, owing to the general policy? Has he seen the statement from China last week accepting the proposal? Three out of five of the nuclear powers have accepted it.
The Earl of Avon: My Lords, I understand that the Russians would agree to a working group, provided that all the five nuclear weapon states participate. They do however agree that the confidentiality of the tripartite negotiations should be preserved. I do not have the noble Lord's advance notice of either the Chinese or the French reaction.

Cricketers: Visits to South Africa
2.37 p.m.
Lord Avebury: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what measures they have taken to discourage cricketers from playing or coaching in South Africa.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, no direct action has been taken concerning individual cricketers; leaving aside the matter of desirability it would be impracticable to try to do so. But the Cricket Council is fully acquainted with the terms of the Commonwealth Statement of 1977.
Lord Avebury: My Lords, but does not the Gleneagles Agreement require Commonwealth Governments to take every practicable step to discourage contact or competition by their nationals with sporting organisations, teams or sportsmen from South Africa? While, of course, the Government have no legal power to stop cricketers from playing or coaching in South Africa, may I ask whether they ought not to issue statements calling on cricketers not to support apartheid in this way just as various Ministers, including the Prime Minister, called on individual athletes not to take part in the Olympic Games in Moscow?
Lord Bellwin: My Lords, the fact is that our citizens are free to come and go as they please, without reference to Government. But, in any case, it is impracticable because there is no requirement for such individuals to notify the Government of their intentions to travel to South Africa or anywhere else come to that.
Lord Avebury: My Lords, while I quite accept—and I said so—that our citizens are free to come and go as they please, may I ask why the Prime Minister considered it quite proper to say that British athletes have the same rights and the same responsibilities towards freedom and its maintenance as every citizen of the United Kingdom in respect of the visits by athletes to Moscow, when she does not feel inclined to say the same thing about cricketers who go and support apartheid by playing cricket in South Africa?
Lord Bellwin: My Lords, if she so wishes, the Prime Minister will make such statements as she thinks are appropriate in this matter, as indeed in any other matter.
Lord Paget of Northampton: My Lords, could it possibly be because South Africa is not engaged in invading a neutral country and because, indeed, South Africa provides far more freedom than ever Russia does?
Lord Bellwin: My Lords, I note carefully what the noble Lord has said.
Lord Elwyn-Jones: My Lords, does the Minister's earlier answer indicate that no Minister would dare utter a statement in disagreement with the Prime Minister?
Lord Bellwin: Not at all, my Lords; there have been such things said, not very frequently, but sometimes.
Lord Avebury: My Lords, does the Minister think—whether or not he is prepared to answer in this House—that Ministers including the Prime Minister had better have some better replies ready for President Shagari of Nigeria who arrives tomorrow and who, possibly, has orders worth £1,500 million per annum for British industry? Whether or not the Minister thinks that there are any moral considerations here, are there not certain practical ones that we should bear in mind?
Lord Bellwin: No, my Lords; any comment that I would make on that would not be helpful.
Lord Derwent: My Lords, would it be a good idea if Her Majesty's Government arranged a meeting between the noble Lord, Lord Avebury, and the professional cricketers so that they could inform him as to what their views are of his views?
Lord Bellwin: My Lords, I am sure that that is something that the noble Lord, Lord Avebury, himself would have to take up if he so wished.
Lord Avebury: My Lords, I am not a Minister yet!

Redundancy Payments and Social Security
2.42 p.m.
Baroness Vickers: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether it is economic that many persons have been spending their redundancy money in order to bring their capital below the £2,000 limit for eligibility for social security.
Minister of State, Department of Education and Science (Baroness Young): My Lords, how a person spends his money must be a matter of individual choice We have no evidence to support the view that people are deliberately spending their redundancy payments in order to qualify for supplementary benefit in the way my noble friend suggests, although many redundant workers no doubt take the opportunity which a redundancy award represents to purchase or replace consumer items. That is their right, if they so wish. In any event, most redundant workers will in fact be entitled to unemployment benefit and would not normally be entitled to supplementary benefit for the first six months or so. Where it is established that a person has deliberately disposed of assets for the purpose of getting supplementary benefit, there are provisions for the value of those assets to continue to be taken into account.
Baroness Vickers: My Lords, I thank my noble friend for that reply. Has her attention been drawn to the fact that many people are spending this money rather freely? I entirely agree with her that it is for them to decide, but what advice are they given, either by industry when they leave the industry concerned
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or by her department, as to what can be done so that the money is not spent totally unnecessarily, simply in order to bring it down to £2,000?
Baroness Young: My Lords, as I indicated last week in answer to a similar supplementary question on the Question of the noble Lord, Lord Monson, how people spend their capital is a matter for them. But if they want to claim supplementary benefit, they need to take account of the two provisions in the resource regulations, the interpretation of which is a matter for the independent adjudicating authorities. The Department of Health and Social Security does not give advice on what to do with redundancy money, and I would have to write to my noble friend Lady Vickers on the question of what, in fact, individual firms might do.

Madagascar: Technical Co-operation
2.44 p.m.
Lord Merrivale: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is to be the technical co-operation allocation for Madagascar for the coming year; whether this will include the financing of Land-Rovers; to what other projects aid funds will be allocated; and whether, in assessing the extent of our help and encouragement, our historical links as well as political, commercial and cultural considerations will be borne very much in mind.
The Earl of Avon: My Lords, we expect the scale of technical co-operation to be similar to that available in the current financial year, which we estimate at something like £250,000. This would include provision for two experts working on agro-climatology and air crash search and rescue techniques, a specially fitted air-crash rescue Land-Rover and the training of Malagasy students in the United Kingdom. Further possibilities are being examined, bearing in mind all relevant considerations.
Lord Merrivale: My Lords, I thank my noble friend for his reply. Some of the aid that he mentions was mentioned on a previous occasion. Will he not agree that bearing in mind the shortage of foreign exchange in Madagascar, increased bilateral aid tied to procurement would be of benefit to both countries? Furthermore, will he not agree that, as in the case in October-November 1979 of the acquisition of three Hawker Siddeley 748 aircraft by the Malagasy Government, the fact that Her Majesty's Government placed those orders would, in effect, assist a sales campaign for British Aerospace—
Several noble Lords: Question!
Lord Merrivale: My Lords, I am asking a question. Will my noble friend not agree that that would assist British Aerospace to achieve a larger sales campaign in the area for similar aircraft, with maintenance being carried out in Madagascar?
The Earl of Avon: My Lords, our ability to respond to additional requests for assistance is limited by financial constraints affecting the whole aid programme. My noble friend mentioned that some of these are current, which is true, and a grant of £600,000 has been given from the aid and trade provision for the purchase of the aircraft that he mentioned, two of which have been delivered and one of which has still to be delivered. Of course, when current expenditure reflects trainees and personnel, that will be carried forward into the next year. As I said in my original Answer, we do not intend in any way to cut back on what we are already doing.
Lord Merrivale: My Lords, I should like to ask my noble friend one further question, although I do not wish to delay the House. Is it not a fact that a few years ago a British delegation, sponsored by the ODM, went out and that one of the promises that this delegation made was that it would get in touch with the Commonwealth Development Corporation with a view to involving the CDC in the agricultural field? Will my noble friend not agree that the agricultural field represents 85 per cent. of that country's economy and therefore is of great importance?
The Earl of Avon: My Lords, we are indeed continuing to look at the agricultural picture. As my noble friend will be aware, the 20 boars and five gilts which have been provided since 1979 with the aim of trying to improve the quality of the Malagasy herd have helped. We understand that a proposal has been worked out by the Malagasy Government seeking our help for butter bean growing.

Business
Lord Denham: My Lords, it may be for the convenience of your Lordships is I announce that dinner will be available this evening at the usual time.
It is proposed that the Report stage of the Wildlife and Countryside Bill should be adjourned at approximately 7 o'clock for approximately three-quarters of an hour, and that the Third Readings of the European Assembly Elections Bill and of the Trees (Replanting and Replacement) Bill should be taken during this adjournment.
It might also be for the convenience of your Lordships if I announce that dinner will be available tomorrow evening as well, at the usual time.

House of Commons Members' Fund and Parliamentary Pensions Bill
The Lord President of the Council (Lord Soames): My Lords, I understand that no amendments have been set down to this Bill and that, so far as I know, no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged—(Lord Soames.)
On Question, Motion agreed to.

Wildlife and Countryside Bill [H.L.]
2.49 p.m.
Further considered on Report.
Clause 34 [Orders requiring notification of agricultural operations on moor and heath in National Parks]:
[Amendment No. 173C not moved.]
Baroness White Baroness White moved Amendment No. 173D:
After Clause 34, insert the following new clause:
("Designation of areas in which moorland conservation orders may be made
.—(1) The Ministers may, if satisfied that it is expedient to do so, by order designate the whole or part of a National Park as an area (a designated area) in relation to which the provisions of section (Moorland conservation orders) shall apply.
(2) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Baroness said: My Lords, I beg to move Amendment No. 173D, and I would suggest that we consider with it Amendments Nos. 173E, 173EA, and there are some consequential amendments, Nos. 173L, P, and R. The main substance of the argument I hope to put before your Lordships relates to consideration of the first of these amendments on the Marshalled List, No. 173D. This matter was discussed at Committee stage on an amendment moved by the noble Viscount, Lord Ridley, and was supported by a number of noble Lords, including my noble friend Lord Hunt and the noble Lord, Lord Foot, and others who are with us today. The amendment was then considered on, unfortunately, Friday the 13th, rather late in the afternoon, and was lost by the narrow margin of 14 votes. Speaking then, the noble Earl, Lord Avon, said (at col. 461) that the proposals then put forward by the noble Viscount, Lord Ridley,
"fail to contain an important safeguard which we understand the previous Government intended to introduce at a subsequent stage of the Bill"—
which was lost at the time of the last election—namely, a provision that the national park committee before putting into effect the proposals for moorland conservation orders must offer a farmer a voluntary management agreement, and do this of course before any compulsory order came into consideration at all.
We have met the point made by the noble Earl, and this improvement in the amendment currently before your Lordships will be found on page 2 of the Marshalled List in paragraph (b) of Amendment No. 173E, where it is set down in terms that before any moorland conservation order is made there should be an offer to the owner or occupier of the land of a voluntary management agreement. This is an important improvement and I hope will make what appeared to be rather complicated amendments fully acceptable to your Lordships' House.
I must say in fairness to the noble Earl, Lord Avon, that he went on to suggest that even the addition of this, I think important, safeguard would not of itself necessarily satisfy Her Majesty's Government. Therefore, it is perhaps worth while emphasising what the real difference between us is, because, as we understand it, the Government view is that they will be satis

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fied with compulsory moorland notification orders but that they do not wish to take to themselves any power at all at the end of the day to make certain that these orders have any effect. To those of us who have worked in national parks, not only in Exmoor but in all parts of the country, we find this unconvincing for reasons which I hope to make clear.
I do not wish to take too long on this matter because it was fairly fully debated on the previous occasion, on Friday the 13th, but we should put the matter into perspective. We had a somewhat similar argument on Clause 27, on the sites of scientific interest, when again the Government resisted any element of what they considered to be compulsion. But I would make it clear that of course we are discussing an entirely different problem in the clauses and amendments now before us. As we were constantly reminded during debates on sites of special scientific interest, there are a great many of them and they are all over the country. Even if one discounts those which are already in the ownership of the National Trust, or conservation bodies and so on, and said not to be at risk, if one adds to them the few—30, 40, 50, or whatever it might be—of those with special protection accepted by the Government, there would still be some 3,000 other sites of scientific interest.
But on the matter we are now discussing, the ploughing of moorland and heath in national parks and only in national parks, I should be surprised if within any early future the number would go beyond single figures. But, in any case, the numbers concerned of areas where such orders would have to be made by conservation orders would be very small indeed. Had we not the type of grant structure which was discussed under the amendment put forward by the noble Lord, Lord Sandford, last week and accepted by the House, for what used to be called hill farms but are now, in EEC nomenclature, called less favoured areas, we should not have this problem at all.
It arises out of the grant system because, otherwise, who in their senses would insist on ploughing up heather moorland if they did not have a financial incentive at the end of it? We would not have this problem. I do not wish to labour the point on this occasion but, as most noble Lords who have been following this debate appreciate, we are in many difficulties under this Bill simply because no Minister of Agriculture has yet been prepared to face the real consequences of the kind of grant system which is, in present circumstances, quite inappropriate to the sort of areas we are discussing in the national parks.
That is the background. The scale of the operation would inevitably be small because the numbers of areas in national parks and the number of persons concerned are not large for this particular purpose. The grant incentive is what causes the trouble—grant and prices; the whole economic system in these areas. But I would submit that there are two main reasons why the notification system by itself with no longstop of last resort is not satisfactory. One was touched upon by a number of noble Lords in the debate initiated by the noble Viscount, Lord Ridley, and that of course is the matter of equity between neighbours; between different farmers or landowners. If the majority of them are persuaded to play the game but you have
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someone who refuses to do so, then, under the Bill as it now stands, you have no remedy. If you have a really awkward customer who sticks out, there is nothing under the Bill at present that you can do. This seems to us inequitable and likely, in certain circumstances, to lead to great difficulties and to be very unfair to those farmers and landowners who have agreed to co-operate in a voluntary system. I do not think that this element should be overlooked.
There have been quite exceptional circumstances on Exmoor. I do not propose to go into the whole Exmoor saga. Even there it has taken a long time with tremendous effort before Lord Porchester, during Lord Porchester's investigation, and after Lord Porchester. I would emphasise that, in spite of all this effort and all the emotion which has been generated on Exmoor, the position still remains—and this is the second reason why one needs a longstop—that the bargaining power of the authority which is endeavouring to obtain voluntary agreements (which is the policy of the Government, and to which I shall return in a moment) is bound to be impaired if, at the end of the day, they are completely impotent.
That is the position under the Bill and, although we have been told by a number of speakers that the area of land which has been ploughed up or otherwise damaged without the consent of the national parks authority has, since the Porchester investigation, been very small, and while that may be true, behind that stands the bargaining process; and that is exactly what it is. It is not that other land has not been ploughed up but that other land has not been ploughed up with objection because the NPA realised that it had to bargain; in other words, it had to compromise; in other words, it had to allow a certain area to be damaged, as we think in the context of a national park, to save the remainder.
It is in that bargaining situation that we must recognise, if we have any sense of reality at all, that if you are trying to bargain on a purely voluntary basis and at the end of the day you have no weapons left in your hand, if at the end of the 12 months the person concerned says, "I am sorry but I am not going ahead with this" and you have no remedy, then you are apt to compromise to avoid that situation and therefore you have to allow a good deal of sometimes very important landscape to be partly damaged for the sake of getting an ultimate bargain so you can save the rest. It is that situation which those of us supporting the amendment suggest is not satisfactory because we do not believe that the bargaining can be carried out if, at the end of the day, the NPA or Minister as the case may be has no further weapons in hand.
It has been said on innumerable occasions in discussing the Bill that we are all in favour of going to the uttermost on the voluntary basis, and there is no need for me to reiterate that; it has been said time and again. Recently the noble Earl, Lord Avon, said, I thought rather plaintively, that the Government liked voluntary agreements. One can only raise one's eyes to heaven and say, "Sancta simplicitas; of course they do". Who would not? We all prefer voluntary agreements, but, like the noble Lord, Lord Foot, I am haunted by 1968. Perhaps I may be allowed to tell the noble Earl, Lord Avon, that he is probably now in the position I was in in 1968 as a relatively newly-fledged Minister of

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State at the Welsh Office on the Countryside Bill of that year. I think the noble Earl is in the position that I was then; I believed what they told me. What happened then? We were assured by the noble Lord, Lord Kennet, that all would be well and we need have no apprehensions. We had the situation on Exmoor that finally had to be handled by Lord Porchester because things had got so bad.
I am well aware that many things have happened since Porchester and that the situation is better, but I do not believe it is realistic to proceed as the Government wish without having some ultimate longstop. We are prepared to have this kind of longstop to prevent ultimately the destruction of historic buildings, and the present Secretary of State for the Environment has made a few quite dramatic interventions in this field. If we are prepared to have an ultimate longstop in that sphere, surely it is illogical to refuse to have a comparable longstop, a last resort power, for ex-ceptionally valuable historic landscapes. What is the difference in principle between the two? I am not an archaeologist, but I know that for some people the remarkable richness of bronze age and other archaeological remains and some of our hitherto undisturbed moorland, now possibly to be ploughed up, are as exciting as a Palladian building is to some of the rest of us.
The final argument adduced by the noble Earl, Lord Avon—Lord Avon's longstop, if I may so call it—was that if the worst really did come to the worst, the Government of the day, if they recognised that the purely voluntary system had failed, could legislate, and he said that it would take only three or four clauses in a short Bill. How often have we heard that phrase both here and in the other place from people who had not the slightest possibility of getting their legislation through? Admittedly Governments are in a stronger position than a private Member. Nevertheless, one can see perfectly well that somebody who was determined to resist could tag along until near the end of the 12 months and then, with a good legal adviser experienced in parliamentary matters, could say when the final crunch came, "No, I am not going to agree with you after all". That could be said just before the Summer Recess, when the legislative timetable was particularly full; and what would happen then?
To my mind this is either a bit of innocence or hypocrisy, I am not sure which, because, if one is prepared, as the noble Earl himself said, to legislate for this, then what is to prevent the Government putting a provision in the Bill now but which could not be activated except by the consent of the then Secretary of State and if necessary by the Ministers who are referred to a number of times in the Bill, and which would bring in the Minister of Agriculture and the appropriate Welsh Minister as the case might be? In other words, it would not just be routine.
If the matter were being taken seriously, something would be put in the Bill now and the noble Earl would not be playing, as it were, with the House by saying, "If it were to go wrong we could have a nice little Bill with three or four clauses which could be rushed through". That sort of thing can be done with constitutional matters affecting, say, Zimbabwe, but it
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cannot be done if a moorland is about to be ploughed up. I have been long enough at both ends of Parliament to know that that sort of thing is not on. I do not feel that the matter has been seriously enough considered, and I must tell the noble Earl, Lord Avon, that I thought it was a rather flippant suggestion on his part.
I still believe that money is the root of all evil and that if it were not on the one hand for the grants and on the other for the problems of compensation in these situations, we should not have this difficulty over moorland conservation orders. In this context, I should like to ask the noble Earl a question. He mentioned that one of the major difficulties, or sticking points, encountered in discussions with farmers on Exmoor—I image it would apply in other national park areas if the situation arose; the North York moors is an obvious park where this situation has arisen and could arise again, and I believe the noble Viscount, Lord Ridley, mentioned Northumberland, too—had been that by voluntary agreement one could obtain annual payments, whereas the proposition in respect of a compulsory agreement (the buying out of a place) would be that one would have a once-for-all sum.
Although a lay person in this matter, I should like to know why, if one can get a voluntary management agreement and provide in that for annual sums, there should be any reason why a similar arrangement cannot be made with a compulsory management agreement. Of course, one would resort to that only if all attempts at the voluntary management agreement had failed. I would hope to be told that that point has been very thoroughly considered and that there is some insuperable difficulty, of which I at least am not aware.
I do not wish to weary the House further, but to many of us this is a very important matter indeed. We do not believe that the Government have faced the real difficulties with the kind of resolution and courage we had hoped for, not least following the words uttered by the present Secretary of State for the Environment. I shall not quote them to your Lordships since you should now know them by heart. The Secretary of State for the Environment, in June 1979—in the first flush of enthusiasm upon his appointment to office—gave us every expectation that the kind of situation that we are discussing in the amendment would be met with determination and courage. It is that expectation that we are asking the present Government to fulfil. My Lords, I beg to move.
3.11 p.m.
Lord Craigton: My Lords, in these debates we have spoken always about Exmoor, and the nation was horrified when it was learnt from the Porchester Report, that in the 29 years up to 1936 12,000 acres of moorland were lost. But I have the recent figures from the Council for the Preservation of Rural England; the noble Baroness who has just spoken is the chairman for the Council for the Preservation of Rural Wales. The CPRE has given me the latest figures from the Countryside Commission, and I must confess that I did not realise that the problem regarding Exmoor, bad as it is, is nothing compared with the problem of the North Yorkshire moors. The national

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park authority for that area published figures in 1980. Whereas the loss on Exmoor over 29 years was 12,000 acres, in Yorkshire in the 25 years to 1975 there had been a loss not of 12,000 acres, but of 37,000 acres. Since 1975 there has been a further loss of 4,000 acres on the North Yorkshire moors, compared with 650 acres on Exmoor. So this is a very serious problem, which is much more widespread than I had realised.
In a previous amendment, on behalf of all the conservation bodies that CoEnCo represents, I declared our lack of faith in voluntary agreements as a permanent protection for land which should be preserved for future generations, unless—as the noble Baroness said—there are also powers to enforce the protection required. Your Lordships disagreed with that point of view by a margin of only 109 votes to 100 votes; so we were very nearly there. This is the case here. There is to be an offer of a voluntary agreement before a moorland conservation order is made. That is right and fair; that is how it should be. The amendment reproduces what would have been the position had your Lordships accepted our amendment on SSSIs, which was rejected by such a narrow majority. We now have another opportunity to deal with this matter, which is far more serious than I had thought. I hope that your Lordships will take the opportunity.
Earl De La Warr: My Lords, I disagree with the amendment as strongly as I disagreed with the amendment of my noble friend Lord Ridley at the Committee stage. My disagreement is not really surprising, since, as the noble Baroness said, the wording now is exactly the same, except for the four lines which, as she explained, add the condition that a farmer must have been offered and have refused an agreement before a moorland conservation order can be applied. For reasons which I shall explain a little later on, I cannot, I fear, help feeling that this modest addition is designed to make the House feel that there has been added something of some substance that will alter the sense of the amendment. But farmers will perceive not one ha'porth of difference—and they would be right, because the result does not differ in any way. So we are, I repeat, debating the same amendment as last time, and we shall, I fear, have to go over some of the same ground again.
I expect that your Lordships are already aware—this point was mentioned last time—of the enormous amount of work that has been going on on Exmoor. in particular in the last few years, in creating the framework for a system of voluntary notification, voluntary delay and voluntary agreements. Your Lordships will also know that there is about to be published—it has not previously existed—a sophisticated and reliable system of assessing compensation, where a farmer agrees to deny himself the financial benefit of increasing his acreage of inbye at the expense of his heathland. The system is based on annual payments for loss of profits, and it has been worked out by the University of Exeter, the landowners, the farmers, and the Exmoor National Park Committee.
What does the amendment say about compensation? The new, small addition says nothing at all, and so inevitably we come back to the moorland conservation method. I appreciate that the noble Baroness has
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made references to the possibility of a difficult method of payment, but there is nothing here about that. What is included is the moorland conservation method only, which, as the noble Baroness knows, is totally different from the annual loss of profits basis, which I have briefly described—
Baroness White: My Lords, since the noble Earl is obviously an expert on this subject, perhaps he can answer the question that I put to the noble Earl, Lord Avon. Is there any reason why that method of payment should not be used where there is a compulsory, rather than a voluntary, management agreement?
Earl De La Warr: My Lords, I am much obliged to the noble Baroness. I do not wish to be thought to be dodging questions, but I really do feel that that is something that my noble friend Lord Avon would himself wish to deal with. That is another way of saying that I know my place.
The moorland conservation method is spelt out in the amendment. It provides for a one-off payment based on the familiar "before and after" method of land valuation. It relies upon an opinion—albeit a professional one—of the reduction in land value. The land compensation code was designed to cover acquisition cases and it it totally unsuitable when applied to partial loss of rights. It is more complex, more arbitrary, and is far less favourable to the farmers.
The Exmoor basis, on the other hand, is tailor-made for dealing with compensation for loss of rights, rather than loss of ownership, and I do not blame the farming community for fearing that there would be irresistable pressure on the county valuer, in order to save money—which is his duty—to fall back whenever he could on the compulsory method of valuation, thus effectively destroying the whole of the voluntary system of compensation. Indeed, I agree with the farmers that that is exactly what would happen.
The noble Baroness referred to the question of bargaining and said that the local authority's power would be impaired. As I understood it, she said it was wrong to bargain as between equals; that the local authority must have the ultimate right. Well, that is her view; it is not my view of what bargaining means. Bargaining is a voluntary activity carried out between equals.
Baroness White: My Lords, with great respect, I would point out that the situation is not equal in the sense that in the last resort the farmer can hang out, whereas the local authority has no further power after the 12-months period has expired.
Earl De La Warr: Yes, my Lords, I take that point. On the other hand—
Baroness White: May I add that it is rather like the wolf and the lamb argument, my Lords?
Earl De La Warr: My Lords, I take that point. On the other hand, one can look at it in exactly the opposite way and say that one must have the odds in favour of the local authority. So be it; this is a matter of opinion. We have discussed lost acreage before, and, not surprisingly, it has come up again, though I must

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say that less reference has been made to it this time, particularly as far as Exmoor is concerned. But there is one figure that I think we ought to use, and in 1981 it is the only figure which in my opinion is valid. It is that during the last four years just 66 acres were ploughed or otherwise improved without the approval of the Exmoor National Park Committee; 25 acres were ploughed without notification; and 41 acres were limed and slagged following notification but without agreement. I find not too much indication there that the heathland and moorland of Exmoor are on the point of disappearing at the hands of the avaricious farmers. I am sure your Lordships will agree that the indication of that figure is exactly the opposite, and is that things are very stable and under good control already.
My noble friend Lord Craigton has said that we ought not to be debating Exmoor alone but that we should be looking at all moorlands in all national parks, and I think there is much to commend what he says. There are other noble Lords who are much more expert than I am about other national parks, and I know that my noble friend Lord Avon will wish to deal with this to some extent. But could not all the things that I have said about Exmoor and the voluntary approach apply on a wider front? Is not Exmoor a first-class example of what can happen on a voluntary basis in any national park? It is what is going on in the case of Exmoor that encourages me to believe, and to believe very deeply, that the voluntary method is the right one wherever it may be. For make no mistake about this, my Lords: once you insist on an ultimate power, the voluntary spirit is killed, just as night follows day—and that is where we come to the heart of the matter. So keen is the noble Baroness and her noble friends to ensure that nobody, but nobody, gets away that she is prepared to risk the destruction of the whole, growing movement among farmers for voluntary conservation. She is prepared to nip it, not in the bud but as it is coming into full flower.
It is for that reason that I so dislike the amendment, for when the chips are down it is not the law but the goodwill of the farmers upon whom we have to depend. If you lose that, my Lords, you lose it at your peril. So I believe that there is not a narrow divide between us on this clause. There is a great yawning abyss, and I beg your Lordships to bear this motivational aspect, along with other things, very much in mind before deciding which way to vote on this amendment, of which I for one so profoundly disapprove.
Lord Hunt: My Lords, I was waiting in the hope that everything would have been said before I needed to get up to speak for this amendment as one of the sponsors, but I think it may be helpful to your Lordships if I intervene very briefly at this stage. I have very little to add which is original, even in terms of today's debate on Report, but I should like very much to supplement one or two of the things which have been said by the noble Baroness and to counter one or two of the things which have been said by the noble Earl, Lord De La Warr.
As regards what the noble Baroness, Lady White, had to say to us, I should like to try to put this in proportion. What is being asked for in this amendment
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is really quite a small thing in comparison (and the comparison has been made) with the thousands of SSSIs for which full protection was asked and so nearly given during the debate last Thursday—100 votes for and 109 against. All we are asking for—and we very nearly got it, even on a Friday afternoon, in the state of weariness that some of your Lordships were in at that time, on the sixth of those long tedious days in Committee—is full protection for a few, strictly defined critical areas (areas which have been approved as critical areas by Parliament) in those of the 10 national parks—and there are only 10 of them—in which there is significant and characteristic moorland and heath. That is all we are asking, and my own feeling is that I simply cannot accept the view taken and put to your Lordships by the noble Earl, Lord De La Warr, that to have full protection as a longstop, as a last resort, for those limited areas in certain circumstances will forfeit the goodwill of the farming community.
It has not been so, my Lords. The noble Baroness mentioned historic buildings. I should like to add an area which I think, with respect to the noble Baroness, is possibly more germane to what we are talking about—access orders. We have had access orders on the statute book for many years. I do not know of one which has in fact been enforced, but the effect of them has not been to lose goodwill; it has been to strengthen the hands of the local authority negotiating access for the public to ground across a farmer's land. This is a very sensitive area, but that has been done with great success. It has not followed as night follows day (in the words of the noble Earl) that we have lost goodwill over that.
Another point that has not been made this afternoon—and I am guilty of having made it two or three times already in the long run-up to the decision on this Bill—is that we are legislating in the long term. Of course there has been good progress in coming to voluntary agreements on Exmoor, and of course we have the Government's view that it would be preferable to have voluntary agreements; but those voluntary agreements are short-term agreements, and on Exmoor, to my knowledge, they are very short-term agreements in one or two cases that have been negotiated. In this Bill we are negotiating for the next decade at least, and that period is going to be one of great change. To state the obvious, there is going to be change in management, in ownership and in tenancies of farms; there is going to be change in management techniques; there is going to be change in agricultural technology; and there is going to be the continuing incentive to plough land for agricultural purposes. There is going to be change in the whole pattern of our society—more leisure (I think that is generally agreed), more ability to use that leisure and a greater need for outlets of interest in the countryside for more people. I think those are fairly telling arguments for getting on to the statute book full protection for those limited areas that we have in our national parks, in which there is moorland which needs to be conserved.
I regard this as a challenge or test of the Government's seriousness in wishing to fulfill, to conserve and to buttress the original intention for the national parks in the 1949 Act. Unwillingness to do so I really think puts the seriousness of the Government in that respect in some doubt. We were narrowly defeated

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in a total of 96 votes which were cast in a poorly-attended and somewhat jaded Committee. The votes in favour of the amendment came from all quarters of the Committee, and I venture to hope that this afternoon, well-attended as we are, this amendment will be carried.
Viscount Ridley: My Lords, as I moved the original amendment at Committee, I should like to say that I have not changed my views at all. I think that the amendment before the House in the name of the noble Baroness, Lady White, and others is considerably better than my amendment and I want to support it. I am not going to repeat anything that I said last week; but a few things have happened since. First, the Somerset County Council and the Exmoor National Park Authority, having read the debate that we had, are still of the opinion that an amendment along these lines is desirable. Secondly, there has been a study of these matters by Dr. Parry of the University of Birmingham, who quoted the frightening figures in the North York moors, and, as my noble friend Lord Craigton has mentioned this, I shall say no more about that.
Finally, it is worth quoting from a letter to The Times last week written by the chairman of the Exmoor Society as a result of our debate. Part of it says:
"The Government through its agricultural policy is responsible for the ploughing up of Exmoor. As the annual subsidies are paid per animal, more intensive farming leads to larger payments. In 1978, subsidies totalled £1·3 million compared with £34,000 spent by the park authorities on conservation. Thus, the Ministry of Agriculture is paying for the ploughing of Exmoor at the same time as the Department of the Environment are offering grants to the National Parks Authority to prevent the ploughing of Exmoor"
While this absurd situation continues compulsory powers are needed, and I hope that we can all support the amendment.
Viscount Ingleby: My Lords, as I live in the North York Moors National Park and as I was abroad during the Committee stage, perhaps I may say a few words. The noble Lord, Lord Craigton, and the noble Viscount, Lord Ridley, both mentioned the figure of 37,000 acres which were converted between 1950 and 1975. As the noble Lord, Lord Derwent, knows, this was mostly an area of poor moorland, most of which was planted by the Forestry Commission and some of which went to farming. I should like to correct any impression that there may be that at the present time there is a danger of large parts of the park being converted. Between 1950 and 1975, the average rate—I have the same figures (provided by the Countryside Commission) as those to which Lord Craigton referred in front of me—works out at 1,500 acres per year. Between 1975 and 1980 it has slowed down to 800 acres a year and the rate at the present time is 245 acres per year, which is slightly less than 0·2 per cent. of the total moorland area.
I am against compulsory powers. It is a very delicate situation. I think that I can say that I love the moors as much as anyone, but I do not believe that what is heather now must be preserved as heather for ever more. On that basis, the national parks would still be forest, as they were after the disappearance of the Ice Age. Heather is very attractive at
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certain times of the year but provides little in the way of food in the form of supporting sheep or grouse, and the soil deteriorates gradually due to the regular burning. It provides no shelter for man or beast and constitutes a high fire risk. Our national park committee, like all national park committees, I suppose, is not entirely popular. It depends on the goodwill of those who are responsible for day-to-day management in the park. For that reason, I feel it better to try to reach agreement on these matters rather than use compulsory powers.
Baroness Wootton of Abinger: My Lords, as a former chairman of the National Parks Commission and, subsequently, of the Countryside Commission, I should like to endorse what has been said about the great progress made by voluntary agreements, and particularly, as Lord Hunt mentioned, in relation to access agreements. The story has been the same all the way along in the activities of the Countryside Commission and the National Parks Commission before it. The aim has been to preserve what is of worth and value for the purposes of recreation and food production. The problem is that we get into the way of talking when we have compulsory powers in the background (as I think some noble Lords have been talking this afternoon) as though compulsion would be applied instantly to stamp down for ever the existing pattern.
The power of compulsion remains in the background and it has been the experience all along in other fields that it has been held out as though it were a threat to stop all voluntary agreements. But experience has shown that it has been the other way round. Voluntary agreements have been readily made and very often the existence of compulsion in the background has made people keener to proceed along voluntary lines. I hope we shall preserve the voluntary element and retain, only as a last resort and not as a first resort (which is the way it has been discussed this afternoon), the compulsion element.
Baroness Elliot of Harwood: My Lords, I shall not delay the House, but I feel very strongly against compulsory powers. People are talking as though farmers are not interested in conservation. We are interested in conservation and in preserving the beauty of the countryside and doing everything to get it used by the public in general, and also in developing it according to voluntary agreements. This idea that the farmers are all intent on ploughing up what is beautiful is rubbish. I have been farming for 40 years. I live quite near some of the parks in the north of England, in Northumbria, and we do not have any trouble. Everybody co-operates with everybody. I have not heard of a single person who has done something against conservation.
There may be some very particular conservationists—I had not met them before taking part in these debates in this House. But in the country where I live, we do not have any problems. There is the idea of starting with compulsion; although the noble Baroness, Lady Wootton, said this should be kept in the background. Why have it at all? Why not have goodwill between everybody? I am certain from all my experience of farming (and it has been a long one) that you will get

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people co-operating. If you try to force people to do things, you raise people's objections. We do not want to plough up land that is best left as it is.
Why are the national parks people always supposed to be right? I had an experience—nothing to do with farming—where we offered (I am a Carnegie trustee) to do something which would have been a great asset to a national park whose identity I shall not disclose; and they refused. We did it somewhere else. We did it in a national park in Wales. It has been a great success. It is a pity to upset the excellent arrangements which exist between the farmers, communities and conservationists. I am strongly opposed to this amendment and I hope we shall defeat it.
Lord Foot: My Lords, I shall not detain the House for more than a minute. I should like to say to the noble Baroness, Lady Elliot, that, so far as I know, nobody who has supported this amendment and this proposition throughout the debates that we have had has ever suggested that the farming community are not interested in conservation. I have never heard that suggested by anybody. What we are concerned about—and this is what the noble Baroness does not appear to understand—is not the problem of dealing with the farmers who have a sense of responsibility; the problem is dealing with the very tiny minority who have no sense of responsibility and who, if they can, will pursue their own interests regardless of the broader public interest.
I want to say a few words about an argument that we have heard repeated over and over again during the course of these debates, not only upon this amendment but also when we were debating the SSSIs. An argument has been repeatedly advanced by the noble Lord, Lord Avon, and also by the noble Earl, Lord Ferrers, that if one introduces an element of compulsion as a last resort then one is automatically going to forfeit the goodwill of the farming community. I think that that is profoundly insulting to the farming community. They are not, in my experience and observation, unreasonable people. They do not claim that they of all people in the community should be released from any compulsory powers at all. They make no such absurd claim. It is irrational and indefensible in principle to suggest that, if a farmer does what he wants to do on his own land and is made subject to some legal sanction, that, however injurious what he may be doing is to the public interest, is unreasonable coercion. We have had this word "coercion" bandied about in these debates. It is a pejorative word.
If it is right to stipulate that a farmer is forbidden to plough up land where it is obviously against the general public interest and where Parliament has said that it should not happen, then it is as unreasonable to call that coercion as it is to describe as coercion the fining of somebody who drives without due care and attention. The second reason why I suggest that this argument about alienating the farming community is baseless is that it is manifestly unreasonable. I should like to occupy two minutes in spelling out to the House—because I believe this is still not understood—what has to happen, what long process has to occur, before the compulsory element is brought into play.
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Under these amendments that the noble Baroness, Lady White, introduced, compulsion does not begin to enter into the matter until the Minister of Agriculture and the Secretary of State for the Environment have together decided that there is an area of land in one of the national parks—and, as the noble Baroness said, this is limited to national parks—so important that it ought to be designated as such. What standards will the Ministers apply when they come to make a designation order of that kind? This is not a moorland conservation order, this is the prior designation of land of particular value. I suggest that the standard they are likely to apply—and let it be borne in mind that the Ministry of Agriculture are going to have their say in this—is the one spoken of by Lord Porchester in his report, when he said:
"A category of land should be established where change from the traditional appearance should be resisted with the utmost determination. All, in other words, should be made as safe for all time as the uncertainties of both human and natural affairs may allow".
Is not that the standard which the Ministers themselves are going to adopt before they begin to designate the land?
That is the first step. My Lords, what happens next? It is that that order made by the Ministers is subject to annulment by a resolution of either of the Houses of Parliament. There is that safety net there. If the Ministers have it wrong, if they have gone too far, either House can call them to correction under the Negative procedure.
When all that has been done, nothing stops the farmer who wants to develop his land—even when his land falls within one of these designated areas—from notifying the national parks committee that he wants to convert it. When he does that, under Clause 34 all the processes of negotiation and voluntary agreement come into play; all the things that the noble Earl, Lord De La Warr, was talking about, voluntary agreements arrived at by two parties arguing on an equal basis. All that comes into force and there is the process of negotiation. Then the Ministers or the national parks committee, if those negotiations fail, cannot make a moorland conservation order unless first of all—and these are the new words brought into the amendment—the national parks committee have offered a management agreement to the farmer, and that has been refused, or if there is reason to apprehend that the farmer is going to go ahead and convert the land without even giving the notification.
Then what is the next step in the matter, my Lords? Once that is done and once the order has been made, either by the parks committee or the Ministers, anybody who wants to object to it can do so. They have all the rights that anyone has under the planning law where a planning permission is applied for and is refused: they have all the powers to go before a Ministry inspector and have the case heard and then the Secretary of State either confirms or does not confirm the order. It is only if the order is then confirmed after all that long procedure that the farmer automatically becomes entitled to compensation.
It may be, as the noble Earl, Lord De La Warr, was saying, that the compensation provisions contained in these amendments are not all that they might be. Maybe they are not, but that can be cured very easily.

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If only the Government would accept the principle of the last resort power, then they could if they wished and if they think that ours are unsatisfactory, introduce their own proposals for the compensation of the person who is denied the right to develop his land. It is only therefore at this very last resort that, if the farmer converts the land in defiance of the Ministers, in defiance of Parliament and in defiance of the national parks committee, he renders himself liable to a fine. It is an absurdity to pretend that the National Farmers' Union or the Country Landowners' Association are people so irrational and so unreasonable that they think this is coercion and is treating their communities unjustly. It is not an argument that we ought to hear in opposition to these amendments.
Earl Waldegrave: My Lords, I did not intervene in this debate when the subject was raised at the Committee stage. I want to speak for only one minute now and raise two points, one of which has not been sufficiently emphasised. I believe that farmers and landlords are going to be under greater pressure to maximise their assets than they have ever been since the 1947 Act came into being. We must realise that there will be very much greater pressure on farmers in the future to maximise their land to be able to carry more sheep and cattle. That is a danger that we have not had emphasised enough in this debate. Owing to the political state of farming the matter is more urgent now than it was.
The second point relates to the residual powers which some people seem to fear so much. To my mind, there is a very good example why those fears are exaggerated. For a very short period I had the honour to be chairman of the Forestry Commission. Ever since the Forestry Commission was founded in 1919 it has had compulsion powers in the background. I am not quite sure whether they have been used. I tried to confirm this with a member of the commission just before lunch. I believe that, if they have ever been used, the number of times could be counted on the fingers of one hand. The fact that there were residual powers to use compulsion has not invalidated all the voluntary acquisitions and agreements made with the Forestry Commission and I think perhaps that has not been emphasised quite enough in this debate. I do not want to say more, my Lords.
3.51 p.m.
Lord Melchett: My Lords, if I may, emboldened by the presence of the noble Lord the Chief Whip, I should like to enter a small plea on behalf of the two Front Benches and those other noble Lords who intend to be here tonight for the discussion of Amendment No. 183, which is the last one on the Marshalled List, because it is my understanding that we should finish the Bill today. We had two substantial opening speeches from my noble friend and from the noble Earl opposite on this amendment, which we discussed at great length at Committee stage. It is a very important matter. It seems to me, first, that a number of the arguments raised at the Committee stage have been met in the new version of the amendment. Secondly, all that can be said in favour of it and I dare say most of what is to be said against it—although the noble Earl still has to speak—has been said; and it
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might be the wish of the House to come to a decision on the matter as soon as possible. I hope that this time the House will come to the right decision.
Lord Kennet: My Lords, in spite of the plea made by the noble Lord, Lord Melchett, I rise for one minute, because the noble Baroness, Lady White, took us back to the remote days of 1968, when it was my responsibility to present the 1968 Countryside Act to this House. She said that I had told the House it would be all right with voluntary arrangements and that we should not press for compulsory arrangements. She is right: I did say that and I very well remember the arguments coming from the farming side while the Bill was being drafted. They said: "Give it a try. We too are alarmed at the loss of wild heath in the national park and we too are alarmed at the rate of ploughing. Give the voluntary system a try and if the rate of loss does not come down under that system, then we can always put up with compulsion introduced later by Parliament".
I thought at that time this might be an error of judgment. I think all the Ministers concerned felt that, but we agreed to give it a try. We defended the voluntary system against some objections from conservationists who at that time would have liked to go straight to compulsion. Here we are 13 years later and I think the figures we have heard today are pretty conclusive. It has not worked. I think now that it was an error of judgment on our part in those days to go along with another decade—because we knew it would be a decade—of the voluntary system. I submit that the system has not worked well enough and I ally myself posthumously, as it were, with those who now seek to introduce compulsion. I hope very much that the Committee will agree to this today.
The Earl of Onslow: My Lords, just before the noble Earl speaks I should like to ask this one question. Since December 1979, 1,319 acres of moorland on Exmoor have been notified as being ploughed up; that is four acres every working day. If that agreement is given by them to plough this up, or it is not given and it is not covered by voluntary agreements, how much is it going to cost? Is the voluntary agreement going to cost more than compulsion? If it does, then there is no harm and it shows that compulsion is necessary. If not, it shows that compulsion is going to do no harm. As the noble Lord, Lord Foot, said, we are not talking about people moving in straight away with compulsion. We are talking about the ultimate argument of the Government right in the background. The other point one should make is this. I do not believe all men are saints. Some people do; but I think that human nature has shown that, on the whole, they are not.
Lord Tranmire: My Lords, I was not present at the Committee stage: I was away convalescing. I should like now to put two points on this amendment. First, as to the North Yorkshire moors, my noble friend Lord Craigton talked about the loss of 37,000 acres in the last 15 years. In fact, if you go back in history a large proportion of this moorland was agricultural land and at the time of the Napoleonic wars large parts of the North Yorkshire moors were growing

531
wheat. If you go further back you will find on the whole of the Yorkshire moors the Beehive Querns. This shows that it was then all arable land.
Why has there been this change? Partly because with tourism sheep on the open roads have been destroyed. During the last 10 years we have had 500 sheep a year slaughtered by motorists on two moorland roads. As a result, farmers give up sheep farming and their only hope is to use the plough to bring it back to what it was before agricultural depression succeeded the Napoleonic wars. The noble Baroness, Lady White, said that money is the root of all evil, but I beg this House to realise that we are concerned with a man's livelihood. Small farmers had small flocks of sheep and now are turning to cattle on the hills and to arable land. With great difficulty we are getting them to co-operate as best they can with the park authority in North Yorkshire and also with the archaeological side. By voluntary agreements you will get that.
That is the benefit of the present Clause 34. If we then put a pistol to the head by means of the compulsory powers of this amendment we shall exacerbate the relationship between the farmers on those moors and the authorities who are seeking to conserve the countryside. Bracken is growing every year on the North Yorkshire Moors. Somehow, by spraying or ploughing, we have to eradicate the bracken and make that land productive. I hope that nothing this House does today will destroy what are we trying to do to get co-operation between the farmers and the conservationists.
The Earl of Avon: My Lords, the noble Baroness, Lady White, was very kind in her introduction. I nearly interjected when she said that we were last discussing this matter on Friday the 13th, because of course we have now passed Friday, 13th March, and on that day we very nearly discussed it again but stopped in time at 11 p.m. the day before. The noble Baroness also said that I ought to be looking for a longstop. I am not quite sure in which place in the cricket field I would need to be, if I needed a long-stop—whether I would be a wicket-keeper, in which case I might be offended; whether I might be a bowler, in which case I might be slightly offended; but as a batsman I do not think I would mind too much.
Many people have commented about the Government's seriousness and realistic approach. We believe that what we are doing is realistic and we also believe that the voluntary system is working. I should like briefly to take up what the noble Lord, Lord Kennet, said when he produced his statistics from 1968 on. I am really going back to 1977 on, when we went into this voluntary agreement in a big way. We believe that since 1977 it has been working and that is why the Department of the Environment, in particular, is happy to see the way ahead without a compulsory order being necessary.
These three new clauses introduced by the noble Baroness, and the associated amendments, are basically similar to those which we debated and rejected in Committee. As the noble Baroness pointed out, the differences of significance are, first, that they include a provision that the national park authority must offer the farmer a voluntary management agreement
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before the compulsory moorland conservation order power would be usable. Secondly, forestry as well as agricultural operations carried out on moor or heath land would be brought within the scope of the power.
The Government remain steadfastly opposed to these new clauses and associated amendments. I explained our reasons in some detail at Committee stage and I do not propose to detain the House by restating them today, particularly as many of them have been quoted. All I will say is that the position in Exmoor is exceptional, as we all agree. The farming community there is showing every sign of co-operating to the full in the voluntary approach to moorland conservation. I believe that this spirit of goodwill would be in jeopardy if the House were to write these compulsory provisions into the Bill, and this could have frightening consequences for Exmoor. I am convinced that, by making these changes to the Bill, we shall prejudice the very things we hold dear.
The argument has been adduced that, leaving aside Exmoor, it would be a prudent step to incorporate the provisions in order to be ready to deal with a similar problem arising in other national parks. But in no other national park is the position so exceptional. The North Yorkshire moors have been mentioned, and various statistics have been quoted, particularly by my noble friend Lord Ingleby. According to my statistics, in 1980 the area of moorland and open land remaining was over 195 square miles and the rate of loss over the previous five years was ½ per cent., which is slightly up on my noble friend's figure of 0.2 per cent.; 1.9 square miles were converted to agriculture in this period and another 4.7 square miles were converted to forestry.
At this rate of loss, it will take many years before the extent of moorland remaining in the North Yorkshire moors can be regarded as having reached a critical stage. May I say together with other noble Lords, that I myself was brought up in North Yorkshire in my youth, and I would miss the heather very much, as well. The Government will, of course, be prepared to make a moorland notification order in any national park if, at any time, it becomes clear that such action is warranted.
During the Committee stage, one or two figures were bandied about, including something which my noble friend Lord Onslow raised just now. I think we discussed in Committee the fact that if we rely on management agreements in Exmoor, we may find the public paying an awesome figure; I think that £600,000 a year was mentioned. This, however, was based on 40,000 acres. But if I may draw your Lordships' attention to the Porchester Report, that found that only 12,800 acres were theoretically at risk. Even if all this had to have management agreements, which is extremely unlikely, and even if they all cost the same as the one which was quoted—which is not certain—the figure would, of course, be even less than one-third of the mythical £600,000. We also talked about management agreements being more expensive. This is not really so, because it is obviously cheaper to make an annual agreement than to pay out the lump sums which would be required all at once. It was also said that management agreements do not last long enough, but 20 years is quite a good lease even if there are break clauses in that lease.

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The noble Baroness, Lady White, mentioned the subject of compensation. I am informed that, under the present compensation code, there is provision for capital sum payments only. Capital sum compensation applies to all planning decisions, and it applies throughout the whole field of compensation. There also would be practical difficulties in attempting annual payments.
I think it was the noble Baroness, Lady David, who said in Committee that she thought there might be trouble over the question of compensation. Usually, a farmer does not want to part with the rights to his land in exchange for money that will not buy him other land at all easily. With management agreements, payment terms will no longer be without guiding rules. A major fault which Lord Porchester spotted is being removed by the Somerset County Council's agreement with the CLA and the NFU. On the other hand, as I understand it, moorland compensation orders would provide also a lump sum, but not annual payments which a farmer often wants. I hope that our case is clear. I spoke at some length in Committee and I hope, in view of what I have said, that the House will decide to reject these new clauses and the associated amendments.
Baroness White: My Lords, the only point that I am still not entirely clear about is the point on compensation, where the noble Earl quite properly said that the present arrangement would be for lump sums only. It appears to me that that is not necessarily immutable. He later said that there might be some difficulties. Every Government says that there are difficulties about changing arrangements. I do not believe that that is an insuperable argument for substituting ultimately, if necessary, a compulsory management agreement, if that seems to be the most suitable thing to do. So I do not think that his argument was the least conclusive. I think that we want to come to a decision, so I shall not comment, if noble Lords will forgive me, on any of the other points that have been made in this interesting debate.
4.5 p.m.
On Question, Whether the said Amendment (No. 173D) shall be agreed to.
Their Lordships divided: Contents, 91; Not-Contents, 97.

CONTENTS

Ailesbury, M.

Chorley, L.

Airedale, L.

Clancarty, E.

Amherst, E.

Collison, L.

Ampthill, L.

Cooper of Stockton Heath, L.

Amulree, L.

Cottesloe, L.

Ardwick, L.

Craigton, L.

Avebury, L.

Crowther-Hunt, L.

Bacon, B.

David, B.

Balogh, L.

Denington, B.

Banks, L.

Donaldson of Kingsbridge, L.

Beswick, L.

Elwyn-Jones, L.

Blyton, L.

Fletcher, L.

Boston of Faversham, L.

Foot, L. [Teller.]

Briginshaw, L.

Gaitskell, B.

Brockway, L.

George-Brown, L.

Bruce of Donington, L.

Gibson, L.

Buxton of Alsa, L.

Gladwyn, L.

Byers, L.

Goronwy-Roberts, L.

Caradon, L.

Gosford, E.

534

Greenwood of Rossendale, L.

Rathcreedan, L.

Grey, E.

Ridley, V.

Hale, L.

Robbins, L.

Hampton, L.

Ross of Marnock, L.

Hanworth, V.

St. Davids, V.

Hayter, L.

Segal, L.

Hooson, L.

Shinwell, L.

Hunt, L.

Sligo, M.

Janner, L.

Somers, L.

Jeger, B.

Spens, L.

Kennet, L.

Stamp, L.

Killearn, L.

Stedman, B.

Kilmarnock, L.

Stewart of Alvechurch, B.

Kinloss, Ly.

Stewart of Fulham, L.

Leatherland, L.

Stone, L.

Leonard, L.

Strabolgi, L.

Listowel, E.

Strauss, L.

Llewelyn-Davies of Hastoe, B.

Taylor of Gryfe, L.

Loudoun, C.

Taylor of Mansfield, L.

Melchett, L.

Underhill, L.

Mersey, V.

Waldegrave, E.

Northfield, L.

Wallace of Coslany, L.

Onslow, E.

Wells-Pestell, L.

Oram, L.

White, B. [Teller.]

Peart, L.

Wigoder, L.

Phillips, B.

Wootton of Abinger, B.

Ponsonby of Shulbrede, L.

NOT-CONTENTS

Adeane, L.

Home of the Hirsel, L.

Alexander of Tunis, E.

Hood, V.

Allerton, L.

Hylton-Foster, B.

Alport, L.

Ilchester, E.

Auckland, L.

Ingleby, V.

Avon, E.

Kemsley, V.

Balfour of Inchrye, L.

Long, V.

Bellwin, L.

Lonsdale, E.

Belstead, L.

Lucas of Chilworth, L.

Birdwood, L.

Lyell, L.

Burton, L.

Mackay of Clashfern, L.

Caithness, E.

Macleod of Borve, B.

Campbell of Croy, L.

Mancroft, L.

Cockfield, L.

Mansfield, E.

Craigavon, V.

Margadale, L.

Cullen of Ashbourne, L.

Masham of Ilton, B.

Daventry, V.

Massereene and Ferrard, V.

De Freyne, L.

Middleton, L.

De La Warr, E.

Monk Bretton, L.

Denham, L. [Teller.]

Mowbray and Stourton, L.

Derwent, L.

Murton of Lindisfarne, L.

Digby, L.

Newall, L.

Donegall, M.

Northchurch, B.

Drumalbyn, L.

Nugent of Guildford, L.

Duncan-Sandys, L.

Orkney, E.

Ebbisham, L.

Peel, E.

Eccles, V.

Portland, D.

Effingham, E.

Reigate, L.

Ellenborough, L.

Renton, L.

Elliot of Harwood, B.

Romney, E.

Elton, L.

St. Just, L.

Faithfull, B.

Sandys, L. [Teller.]

Ferrers, E.

Savile, L.

Feversham, L.

Selborne, E.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gainford, L.

Soames, L.

Gibson-Watt, L.

Stanley of Alderley, L.

Glasgow, E.

Strathcarron, L.

Glenkinglas, L.

Strathclyde, L.

Gormanston, V.

Strathspey, L.

Gowrie, E.

Suffield, L.

Gridley, L.

Swinton, E.

Grimthorpe, L.

Terrington, L.

Hailsham of Saint Marylebone, L.

Tranmire, L.

Vaux of Harrowden, L.

Halsbury, E.

Vivian, L.

Hawke, L.

Westbury, L.

Hemphill, L.

Wise, L.

Henley, L.

Yarborough, E.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 173E and 173EA not moved.]
Clause 35 [Grants and loans for purposes of National Parks]:
4.14 p.m.
Baroness David Baroness David moved Amendment 173EB:
Page 32, line 8, at end insert—
(" (3) Without prejudice to the generality of subsection (2) above, the council shall ensure that any person receiving a grant or loan under this section in respect of premises to which the public are to be admitted, whether on payment or otherwise, shall, in the means of access both to and within the premises, and in the parking facilities and sanitary conveniences to be available (if any) make provision, insofar as it is in the circumstances both practicable and reasonable, for the needs of members of the public visiting the premises who are disabled.").
The noble Baroness said: My Lords, I spoke to this amendment, together with Amendment No. 173YA, last week. The principle was accepted, so I beg to move.
On Question, amendment agreed to.
Lord Melchett Lord Melchett moved Amendment No. 173F:
Leave out Clause 35.
The noble Lord said: My Lords, I put down this amendment to give me an opportunity to raise with the Government the question of the Norfolk Broads. I gave the noble Earl notice that I intended to do this at the Committee stage, but we reached this part of the Bill very late on one day or another—I cannot remember which—and the general view was that as we were going at such breakneck speed we ought to leave this matter until Report.
This clause provides powers for the purposes of national parks. I want to raise with the Government the problems and difficulties which are being faced by all those who take an interest in the area of the Norfolk Broads, notably by the Norfolk County Council and the other organisations which make up the consortium which is currently responsible for that area, and in particular the financial problems which they face. I shall not delay the House with a long exposition of the importance of this area, but would like to put briefly on the record from the nature conservation point of view that the Ramsar Convention of 1976 recognises areas of the Bure Marshes, 400 hectares, and Hickling, Horsey and Martham, 900 hectares. Those are two of the 13 Ramsar sites which are recognised in the United Kingdom. In the Nature Conservation Review, which is the list prepared for the Nature Conservancy Council, of the top 700-plus sites in the United Kingdom, there are four grade 1 starred sites, seven grade 1 sites, and two grade 2 sites, a total of nearly 3,000 hectares, all in the Norfolk Broads area. In addition, there are 450 hectares of local nature reserve. And 2,100 hectares are designated as sites of special scientific interest at 18 different spots in the Broads.
The landscape significance of the Broads goes without saying. It is a unique mixture. This is borne out by the recreational significance of the area. There are 200 kilometres of lock-free navigation, with 14 associated navigable lakes. It is the single most important location for boat cruising holidays in the United Kingdom. There are now over 2,800 hire cruisers registered on the system. It is estimated that
536
annually about one-quarter of a million people spend their holidays in the Broads. In addition, there are all those people who are interested in sailing, rowing, canoeing and fishing. There are 8,000 private boats registered for use on the system. In other words, the Norfolk Broads area is of major importance from the nature conservation, landscape and recreation point of view. Taking all those things together, it is one of the most important areas in the entire country. This importance has been recognised over a very long period of time, both in the Dower and in the Hobhouse Reports. It was always one of the areas which was envisaged as a likely candidate for national park status.
As noble Lords will know, a national park has not been designated, not because the area is intrinsically not of national park quality but rather for administrative reasons and because it was felt that many of its problems could be more effectively dealt with by the local consortium of planning, water and navigation authorities. Having taken that decision, particularly for the local authorities involved it seems to me that it is desperately important that a success should be made of it. One of the most important things, in the view of all those concerned, is that the Government should give an indication that they are satisfied that the broadland area, although it is not a national park, is of national park quality and status in terms of the things I have set out—the nature conservation importance, the landscape importance and the recreation importance—and an assurance, which I hope the noble Earl will be able to give to your Lordships' House today, that they recognise the importance of this area and that they will be acting on it.
Because this did not come up at the Committee stage, the noble Earl kindly wrote to me, and in that letter he told me that the chairman of the Countryside Commission had written to the Secretary of State at the same time as I wrote to the noble Earl, saying that I should be bringing this matter up at the Report stage of the Bill. I understand that the chairman of the Countryside Commission has put forward proposals for the next three years, as a follow-up to the commission's initial involvement in the formation of the Broads' authority. I know that the commission has made a number of important proposals to which the local authorities, and in particular the Norfolk County Council, attach the greatest possible importance. So I hope that the noble Earl will be able to give me an assurance that the Government recognise the scope of the problems that the Broads face, and the importance of recognising, from the Government's level, the national significance of those problems and the national help that will he needed to help the consortium to sort them out locally. I beg to move.
The Earl of Avon: My Lords, I think this clause has been given a general welcome. The idea is that, although national park authorities have a general power to do anything to conserve natural beauty and a number of specific powers to do various things, they have never been empowered specifically to assist the activities of others who are also moved by conservation objectives, like farmers and landowners. There could be circumstances in which another party

537
genuinely wants to tackle an important job, but lacks the finance. This clause makes pooling possible; efforts and costs can be shared. This is the principle upon which the Countryside Commission assists countryside projects under their grant-aiding powers. It is not always appropriate for the Commission to do this in a national park. The National Park Authorities are part of local government, with their own financial responsibility and it will be up to them to consider in what instances to use the new power and what conditions to place on an offer or grant of a loan.
The noble Lord, Lord Melchett, has spoken eloquently about the parallel need for conservation of the natural beauty and the wildlife of the Norfolk Broads. I should like to speak for a minute or two on that subject. We are in no doubt about the importance of the Norfolk Broads, and we welcome the local government initiatives and the work of the Countryside Commission, which has resulted in the formation of a Broads Authority. The authority has now been functioning for about two years and it approaches the environmental problems of the area on a wide-ranging basis. It has been grant-aided by the Countryside Commission, which has recently put to the Secretary of State, as the noble Lord, Lord Melchett, said, a proposal for further financial assistance until the end of 1984. This would be a substantial commitment which would require adequate consideration with the Commission and between departments. We know that the local authorities concerned await the outcome with keenness but the implications have yet to be fully examined and assessed.
Concern about the environment of the Broads was emphasised at the Committee stage, and I am delighted to have had this opportunity to speak about the activities. As the noble Lord, Lord Melchett, knows, we are later going to discuss the inland drainage boards, so I will not mention them at this time; but I hope that what I have said will convince the noble Lord that the Government are watching this situation, that they do indeed give it a high priority and that they fully recognise the significance of the Norfolk Broads.
Lord Melchett: My Lords, I am grateful for what the noble Earl has said, particularly his last sentence, which seemed to me to go a long way towards meeting the concerns of those locally about having to face quite appalling problems and a number of conflicts of interest which give rise to great difficulties, while at the same time having to cater for the very large number of visitors to the area, who I think are welcomed by all concerned but who do bring some problems in their wake. I hope the Government will be able to give very speedy consideration to the proposals that have been put to them in connection with this area for the next five years, as the noble Earl has mentioned that the Government are doing, and that the conclusion they come to will be that, although there is some financial commitment being called for, this really is the very minimum that they can give to the area—unless the Broads are going to collapse under the weight of all the pressures on them and the quarter of a million visitors annually who go there for their holidays, as well as everybody concerned with the nature conservation and the amenity aspects of the area, they will
538
have nothing left for all those purposes. Alternatively, some more drastic steps will have to be taken to enforce conservation and other things on the area, which I do not think is the approach that the consortium at the moment wish to take. Having said that, I think that the noble Earl went a long way to meet the fears of those locally, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 173FA not moved.]
4.26 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173G:
After Clause 36, insert the following new clause:
("Amendment of National Parks and Access to the Countryside Act 1949
. The National Parks and Access to the Countryside Act 1949 is amended as follows:

(a) in section 5(2), for the words "extensive tracts" there shall be substituted the word "areas";

(b) after paragraph (b) of section 5(2), there shall be added the following paragraph:

"(c) the extent to which, taken together, such areas are representative of upland, lowland, farmed, non-farmed, wetland, hill and mountain areas in England and Wales,";

(c) in section 6(1), after the words "commencement of this Act," there shall be inserted the words "within 12 months of the commencement of the Wildlife and Countryside Act 1981,".").
The noble Lord said: My Lords, this is a rather wider amendment about the national parks, which again was tabled at the Committee stage, but at the time it seemed to me that we were moving so quickly that there was no opportunity to give it reasonable consideration and therefore I withdrew it then and tabled it again at this stage. I am afraid it is one of the victims of the breakneck speed at which we tried to take some points in Committee, to meet the wishes of the noble Lord the Chief Whip and others. But I will, of course, try to take it as briefly as I possibly can today—and I hope that the clock may be corrected so that it does not appear that I have been speaking for five minutes before I start!
This amendment is designed to ensure that the Countryside Commisssion, when looking at the provision of national parks, take a wider view than they appear to have done in the period since the 1949 Act was passed, although I do not think it would require them to take a wider view than was the intention of many of those who were involved in the initial work and indeed in the debates during the passing of the 1949 Act. I am delighted to see the noble Lord, Lord Sandford, here, because I wanted to start by quoting a recommendation from the noble Lord's report on national parks, where the noble Lord's committee recommended that, in considering possible new national parks, the commission should examine more diverse types of landscape, provided that they are of the highest quality, than the rugged uplands which dominate our existing parks, with the partial exception of the Pembrokeshire Coast Park. That is what the amendment would aim to ensure happens.
There are two parts to it; the first part is quite simply dealt with. The words, "extensive tracts", which appear in the 1949 Act would be removed and the word, "areas", substituted. It has been suggested to me that the words "extensive tracts" have been

539
taken to mean extensive tracts of open countryside, such as moorland or mountain. I do not believe that was the intention of those who framed the 1949 Act and, from looking at it, it seems to me that it certainly was not the intention of those who took part in the debates when the 1949 Act went through both Houses of Parliament. But it has been suggested that those words do place some restriction on the areas which can be covered by national parks. I do not think that is right, but, for the avoidance of doubt, I think it would be useful to remove those words and to substitute, "areas".
The second paragraph, paragraph (b), would ensure that, as Lord Sandford's committee recommended, the commission would look at more diverse types of landscape and, for example, would ensure that they looked at areas like the Norfolk Broads or the South Downs in determining whether there should be new national parks, and, if so, where. When the 1949 Act was being framed both the Norfolk Broads and the South Downs were serious candidates for inclusion for designation as national parks, as serious indeed as many of the areas that were designated. In looking at this Bill and the stage we have reached with it, it seems to me that we are offering very little that is new—indeed, absolutely nothing that is new except very minor matters by way of landscape and habitat conservation. This Bill when it becomes an Act is going to be in very sharp contrast to the 1949 Act in that respect. Nobody, I would suggest, is going to look back at the Wildlife and Countryside Act 1981 in the same way as we look at the National Parks and Access to the Countryside Act 1949, and see the many dramatically successful measures which flowed from that. The creation of national parks in this country has been a great post-war success in this field, and something which I am afraid this Bill is not going to follow in any way. It therefore seemed to me that it might be as well, if we were not going to do anything else, at least to build on our greatest post-war success and ensure that we could go on looking at national parks and their designation in a constructive and open-minded and positive way. Lord Sandford's committee seemed to me to point the way to ensure that we could do that.
My Lords, I hope that the Government will find that, although they have not been able to be very forthcoming about a number of other proposals put forward in this Bill, this one does have some attractions because of the success that the existing national parks have had. I beg to move.
The Earl of Avon: My Lords, under the relevant provisions of the 1949 Act, all national parks must at present be "extensive tracts of country" which meet two criteria; natural beauty and the
"opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population".
In practice, these requirements dictate that national parks should be predominantly located in upland regions (although the Pembrokeshire Coast Park is a notable exception). These are not farmed extensively and they therefore provide large areas in which there exists comparatively ready public access. By
540
deleting the statutory reference to "extensive tracts" and adding its proposed third criterion for designation, the amendment would set in motion, within 12 months of the commencement of the Act, a new programme of national park designation covering lowland farming areas and wetlands. Such an initiative could be unrealistic, partly because of the reserve costs of such a programme, but also more generally: national park designation is basically inappropriate in lowland areas, owing to the general incompatibility between their intensive farming operations and the opportunities afforded for open-air recreation. Even if the amendment were passed this last factor might in practice preclude most potential candidates for designation as new national parks: the lack of widespread access in most lowland areas would mean that the second criterion for national parks designation could not be met.
I have been listening to what the noble Lord has said with some interest because I think what he says makes a lot of sense. I think he probably knows that the Countryside Commission has been looking at areas of outstanding natural beauty and that the Government are going to read its review later on in the year, but that is a slightly different topic. What the noble Lord is doing is slightly broadening the scope of the Bill, and, although I can see that there would probably be very little land which would come under its scope, it does seem to me that we ought to consider it. We obviously have not heard the noble Lord's arguments before. I should like to have another look at the amendment if he will withdraw it at this stage.
Lord Sandford: My Lords, perhaps, before the noble Lord withdraws the amendment, I may make one observation on the matter, as the noble Lord, Lord Melchett, mentioned the work of our committee. My own feeling is that if the scope for designation is going to be extended in the future we have to move in the direction of the French regional parks, which are concerned not only with things like public access and conservation of natural beauty but with making a positive and beneficial contribution to the welfare of the people who live in the areas. The French regional parks now extend to about 20. Just to take a few examples, the one designated for the Carmargue is concerned with the regeneration of the rural economy of the area, which has collapsed since they ceased trying to grow rice in the delta. The one in Brière, which is on the edge of St. Nazaire, deals with the two social problems of preserving a traditional area of marshland, like the Broads, and at the same time coping with the pressure from the urban area, St. Nazaire, on the very fragile rural area. The French regional park in Normandy attempts to deal with the whole problem of the depopulation of the bocage. Unless there is some positive contribution for the benefit of the people who live in the areas concerned, I do not think it is going to be politically possible to make much headway.
Lord Melchett: My Lords, I very strongly agree with what the noble Lord, Lord Sandford, has said. We all hope that his amendment which your Lordships have passed will be a start in moving in that direction, which seems to me absolutely right. I suppose the

541
sorts of things the Countryside Commission have done in their management experiments in a minor way are also in the spirit of what the noble Lord mentioned—an attempt not to make a national park designation any sort of threat to landowners and farmers but a source of positive help in meeting the pressures and difficulties which inevitably follow from farming in an area which a lot of people like to visit for holidays or for other purposes. It really was with that in mind that I moved this amendment; we would be talking about areas like the Norfolk Broads, which, as I said previously, a quarter of a million people already visit every year for a holiday, where there are already considerable pressures, and where it seems to me that there would be enormous scope not only for the sort of activities that Lord Sandford mentioned but also for the sort of help which the National Parks Authority and the Countryside Commission are able to give in national parks to the people who live and work there.
There is one thing that the noble Earl said which I strongly disagreed with. I shall be careful how I put this, even though the noble Viscount, Lord Thurso, is not in his place. It does seem to me unfair of people who farm in the uplands to think that they should always be considered in some way to have an easier life than those of us who farm in the lowlands, to the extent that they are quite capable of managing millions of visitors every year on their farms whereas those of us who farm in the lowlands cannot. I simply do not see the logic of that. Moors and other areas of national parks are farmed. The noble Earl said, I think, that they were not intensively farmed, but it sounded as if he said "extensively", which I do not think he can have meant; I shall look at his remarks with interest tomorrow. In any event, they are farmed, and people visiting national parks are visiting areas which are farmed.
That is part of the joy of visiting a national park, apart from the uniqueness of the national park system we have in this country. These are areas where people live and work and where they make their living. They are in that respect not very different from lowland areas. There are many lowland areas with extensive rights of way and public access and where there are already enormous numbers of visitors. In that respect, I do not see them as very different from upland areas. There are other lowland areas where, it seems to me, there is still considerable scope for absorbing more visitors, and more visitors there might mean less pressure in the uplands, where I dare say some farmers at some times feel there is more visiting than farming going on. That was part of the drive of this amendment, not necessarily simply to take pressure off the uplands but to help in that respect by allowing the commission to consider creating more parks in the lowland areas, which would incidentally be much closer to the main centres of population than existing national parks.
The noble Earl kindly said he would consider what I have said. I hope he will take into account what has been said since he sat down by the noble Lord, Lord Sandford, and by me. I look forward to hearing some response from him, and no doubt if we cannot amend this in your Lordships' House it would be a matter that could be taken up in another place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.40 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173GA:
After Clause 37, insert the following new clause:
("Amendments of Agriculture (Miscellaneous Provisions) Act 1944
. Section 1(1) of the Agriculture (Miscellaneous Provisions) Act 1944 shall be amended by the insertion of the words "such advice to take into account nature conservation, wildlife and landscape interests," after the words "agricultural matters".".
The noble Lord said: My Lords, I beg to move Amendment No. 173GA. I apologise for the fact that four of my amendments have come in a row. However, we now return to a more serious matter in the sense that I hope that the Government will now be prepared to accept this amendment. We discussed this amendment in Committee. It concerns the Strutt Report and the role that ADAS—the advisers to farmers on farming matters—might play in giving advice about nature conservation and wildlife. However, the only change in the amendment since we discussed it in Committee is one deletion to meet a drafting error which the noble Earl kindly pointed out to me when I moved the amendment at that stage.
This matter has a long history which we went into in Committee and I shall not repeat it now save to say that there has been, I think it is fair to say, unanimous support from both farmers and all those concerned in the agricultural industry, and nature conservationists, that it would be sensible for ADAS officers, when they are going about their jobs and giving advice to farmers on nature conservation matters, also to be in a position when giving that advice to take into account the interests of nature conservation and wildlife.
That was recommended by the Strutt Committee which was an agricultural committee, not a conservation committee, and one appointed by the Ministry of Agriculture. It was accepted in principle by the last Government and accepted in principle by this Government. It was not implemented, quite wrongly in my view, by the last Government because of shortage of resources and we now have the position that this Government are in at the moment which is, as I understand it, that when they introduced changes to the farm capital grants scheme last year they explicitly said that the changes they were introducing, the savings in manpower and administrative costs that they had introduced by abolishing prior approval, would enable them to ensure that ADAS spent more time giving advice on wildlife and nature conservation matters. That comes very close, I suppose, to accepting in full the Strutt recommendation.
The purpose of putting this amendment into the Bill is simply to ensure that the Government have actually accepted in full the Strutt recommendation. The implications of course will be that wildlife and nature conservation matters will have to be taken into account in training those who work for ADAS, and all ADAS officers would be told that when they gave advice they should, wherever possible and where it was practicable, sensible and seemed to be desirable, give advice which took into account nature conservation and wildlife interests.
As I understand it, the Government have not gone that far and, in fact, the noble Earl wrote me a letter after our debate in Committee which seemed to me slightly to avoid the issue by praying in aid Section 11

543
of the Countryside Act, which has been on the statute book all the way through this process—the period when Strutt reported, throughout the last Government; and then this Government have failed to implement what everybody else thought was a sensible idea. Section 11 of the Countryside Act has been in existence all the time and it did not lead to Strutt being implemented.
Section 11 of the Countryside Act requires Ministers and public bodies to have regard to the needs of conservation. As I understand it, the Government's argument is that it already allows them to implement the Strutt Report. I do not think that they go as far as saying that Section 11 requires them to implement the Strutt Report, because if it did so obviously the last Government would have so implemented it. Therefore, it seems to me, if I may say so to the noble Earl, that Section 11 is a total red herring, that it really does not bear on this amendment and that it should not be used as a way of avoiding the point that this amendment is directed to, which is to require the Strutt recommendation to be implemented.
This amendment ensures that when ADAS gives advice it will take into account the nature conservation, wildlife and landscape interests. It is a simple point and one which I think, as far as I can gather from the mists of the Government's responses both in Committee and in letter, that the Government have substantially accepted. It is one that has always had complete support from both sides of your Lordships' House and, as I have said, from both agricultural and conservation interests. I very much hope that, having had a chance to think about it, the Government will now accept the amendment. I beg to move.
The Earl of Avon: My Lords, of course we recognise the intention of this amendment and, in our discussions at the Committee stage, I promised to look further into the question of its desirability and did so. Moreover, as the noble Lord has said, I also put my thoughts into writing. As the noble Lord has explained, his purpose, by this amendment, is to implement the recommendation of the Strutt Committee that the role of ADAS should be extended to include conservation advice to farmers. Our case continues to rest, with respect, with the view that this does not require fresh legislation. As I explained when we debated this earlier, Section 11 of the Countryside Act 1968 already requires that all Ministers, Government departments and public bodies—including ADAS— should have regard to the needs of conservation in pursuing their functions related to land. In fact, implementation of this aspect of the Strutt Report is dependent not on statutory changes, but on the availability of resources to enable ADAS to extend its existing knowledge of environmental matters and develop its capacity to provide guidance to farmers on conservation.
As my noble friend Lord Mansfield reported to the House last year, some of the savings achieved in the recent streamlining of the administration of MAFF capital grants will be used and are being used to help enhance this side of ADAS's work. Furthermore, there will he shortly issued to ADAS staff a booklet
544
on habitat and species conservation which has benefited from advice from the NCC and the Countryside Commission. I understand that the booklet will be called Conservation Guidelines—a Guide to Wildlife Habitats on Farms. I, therefore, submit to the House that this amendment is unnecessary as a statutory provision not only exists, but is being applied. I hope that with those few remarks the noble Lord, Lord Melchett, may feel able not to press his amendment.
Lord Melchett: My Lords, first I should like to correct the noble Earl on a matter. The amendment does not require ADAS to give advice on nature conservation and wildlife. I think that it would be presumptuous of anybody to make such a suggestion and I do not think that that was the suggestion made by the Strutt Report. The amendment says that when ADAS is giving advice to farmers on agricultural matters, such advice should take into account nature conservation, wildlife and landscape interests. In other words, all that the amendment does is to say to ADAS officers, "When you are giving advice to farmers, as you do so effectively and efficiently and in a way that is so widely welcomed by everyone in agriculture, take into account wildlife and nature conservation". It seems to me that that is a recipe for trying to avoid some of the conflicts which will otherwise arise in the countryside between farmers and nature conservationists. When a farmer rings ADAS for advice on anything from clearing a dyke, to a drainage proposal, to spraying or whatever, the advice that he gets will take into account the interests of nature conservation. That is not the same as giving advice on nature conservation and I hope that the noble Earl and his advisers will take that point on board, because it is an important one.
The noble Earl then went on to say that implementing this does not require fresh legislation. I can certainly accept that that is the case. But there is a different point which I am trying to make and that is to require the Government to do this does need fresh legislation. Perhaps I may make the point again to ensure that it is clear to the noble Earl. I know that he can do what Strutt wanted him to do under existing legislation, but the problem has been that both the last Government and this Government have not done it. Both have shilly-shallied, avoided and dodged the issue. That has been done by both the last Labour Government and the current Government. I am suggesting that we should pass an amendment which requires the Government to do this. They may not need legislation to enable them to do it, but they clearly need legislation to require them to do it and that is what this amendment would do.
We have had a number of debates—including at least one today—on issues upon which noble Lords on all sides of the House strongly disagree. This is not an amendment of that sort. As I have said, it has been one that has always united nature conservationists and farming interests against, first, the last Labour Government and now the present Government, for want of implementing it. I think that this Bill provides us with an opportunity at least for getting into law the matters on which we all agree, and it would be a great pity if we missed that opportunity. I hope that the House will accept the amendment. I beg to move.
On Question, amendment agreed to.
4.50 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173GB:
After Clause 37, insert the following new clause:
("Amendment of Nature Conservancy Council Act 1973
The Nature Conservancy Council Act 1973 is amended as follows—

(a) in section 1(a)(iii), after "nature conservation" insert "and all wildlife";

(b) after sub-paragraph (iii) of section 1(1)(a) insert the following sub-paragraph—

"(iii)(a) the promotion of the enjoyment by the public of all wildlife; and";

(c) 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";

(d) at the end of subsection (2) of section 1 insert—

"wildlife" means all wild creatures and wild plants").
The noble Lord said: My Lords, if I have the attention of noble Lords opposite, this amendment is, again, one that we discussed in Committee, where I moved a much more substantial amendment to the Nature Conservancy Council Act. I listened very carefully to everything that was said in that debate and it seemed to me that there was a fair amount of agreement about the point at which these amendments strike.
My previous amendment concerned the question of those appointed to the Nature Conservancy Council and the question of enforcement by the Nature Conservancy Council of wildlife legislation. I have dropped both those matters from the amendment. I simply want to see whether we cannot ensure that the Nature Conservancy Council takes an interest not only in the strictly scientific aspects of nature conservation but in the wider, more popular aspects of nature conservation and wildlife, which, after all, are the matters in which most people in this country are interested. I know that the scientific aspects of nature conservation are of great interest to the experts, but most people are interested in wildlife in general, not necessarily in the rarer species, which are either very difficult or impossible to see and are not the kind of things on which your Lordships' House has spent some time in dealing with various parts of the Bill, such as the bar-tailed godwit or even bats—dare I say that in the presence of the noble Lord, Lord Craigton? The public are more interested in the more everyday birds and the more everyday and highly visible mammals—at least the few that are visible.
It seems to me that if we are legislating for many years in the future—which we are in this Bill—it is important that the Nature Conservancy Council should be in a position within its statutory powers to respond to this popular view of nature conservation, to cater for it and, above all, to encourage it. That is what the amendment would do.
I dropped the words "natural history", which I think the noble Earl in his previous reply—in at least as much of it as I understood—convinced me were not suitable for inclusion in the amendment. However, I hope that simply to include "wildlife" (which after all is the title of this Bill) is uncontroversial and will be acceptable to both the Nature Conservancy Council, which I am sure will respond by saying that they already do this—in which case I see no harm in having it made clear in the statute—and the Government; for it seems to me to reflect the views on this Bill and the views of noble Lords on all sides of the House. I beg to move.
The Earl of Avon: My Lords, I have noted with great care the terms in which the noble Lord, Lord Melchett, has couched this revision of his earlier amendment in Committee. However, I am afraid that the Government still consider this amendment to be at best unnecessary and at worst an embarrassment, particularly in relation to the duty to promote public enjoyment of all wildlife.
I shall try to explain this. So far as the Government and the NCC are concerned, nature conservation embraces all wildlife and includes both flora and fauna. Furthermore, we are unaware of any suggestion that there is any lesser definition. As regards placing a duty on the NCC to promote the enjoyment by the public of all wildlife, I can only say that there are occasions on which such a requirement would be in direct conflict with the needs of nature conservation, which must come first. Furthermore, the Government and the NCC are quite satisfied that their present terms of reference enable them to promote the enjoyment of the public of wildlife where this is appropriate and to the extent that their resources allow. I hope the noble Lord will accept that the principle of his amendment is well understood and applied, and that his amendment is not only unnecessary but could prove an embarrassment.
Lord Melchett: My Lords, occasions when Government Ministers get up and say that amendments are both unnecessary and then do something always seem to me to herald replies of the greatest weakness and greatest suspicion. How can something be both unnecessary (because the argument is that it is already in legislation) and then have all sorts of catastrophic results for the poor Nature Conservancy Council, including causing them great embarrassment? More seriously, I think that it is helpful to have what the noble Earl has said about the definition of nature conservation on the record, for I do not think that that has been universally accepted among those involved throughout the nature conservancies and the history of the Nature Conservancy Council. So I shall look at what the noble Earl said with great care.
During the passage of this Bill the Nature Conservancy Council have caused the Government so much embarrassment by the actual statistics they have produced that I certainly do not want to cause any embarrassment to the council. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Provisions with respect to the Countryside Commission]:
The Deputy Speaker (Lord Maybray-King). My Lords, I am advised that if Amendment No. 173H is agreed to I cannot put Amendment No. 173J to the House.
Lord Craigton Lord Craigton moved Amendment No. 173H:
Page 33, line 13, leave out subsection (4).
The noble Lord said: My Lords, with the agreement of the House, with this amendment I should like to discuss Amendment No. 173Q. The Government have already accepted an earlier amendment putting power

547
to create marine reserves into the Bill. The words referred to are now unnecessary. I beg to move.
On Question, amendment agreed to.
[Amendment No. 173J not moved.]
Lord Melchett Lord Melchett moved Amendment No. 173K:
After Clause 38, insert the following new clause:
("Amendment of Water Act 1973
. The Water Act 1973 is amended as follows—
After subsection (3) of section 3 the following subsection shall be inserted—
"( ) Members appointed by the Secretary of State shall be persons who appear to him to be familiar with the need to conserve the natural beauty and wildlife of the authority's area.".").
The noble Lord said: My Lords, in a very helpful letter which the noble Earl wrote to me on 3rd March about a similar amendment that I moved in Committee, he said among other things that on Report he would explain the point that he made in the letter further,
"when I hope to provide an effective, non-statutory commitment to meet the spirit of the amendment".
I have tabled the amendment again to give the noble Earl the opportunity of doing that. I beg to move.
The Earl of Avon: My Lords, when a similar amendment was discussed in Committee we undertook to consider whether it would be useful to have one or two people with expertise on nature conservation on each of the water authorities. The Government fully recognise the importance and relevance of wildlife and landscape conservation to the work of water authorities, and it is our aim to achieve a reasonable balance of interests in the membership of each authority. To some extent, however, the overall size of the water authorities' membership, which varies considerably between authorities, imposes a constraint. For example, although the Secretary of State appoints 17 members to the Thames Water Authority, which is the largest, to the smaller ones, for instance the South-West and Wessex, he appoints only four. This illustrates how difficult it would be to meet a requirement that a particular interest will always be represented on every water authority, whether it be the conservation of natural beauty and wildlife or some other, like the needs of industry, commerce or recreation. That is why we do not think it would be right to introduce a statutory commitment.
I can, however, assure noble Lords that we are prepared to use our best endeavours to ensure that the larger water authorities have at least one member with experience of wildlife and conservation, and I hope that this will indicate that we will act in the spirit of the amendment as far as we reasonably can.
Lord Melchett: My Lords, I am grateful to the noble Earl for that information. I think that one might be rather niggardly on some of the larger water authorities. I hope that the Government will bear in mind the enormous concern that the activities of some water authorities have generated in the past and, more importantly perhaps, the extent to which a number of water authorities are now getting together with nature conservation interests, agreeing procedures for prior
548
consultation, agreeing to have regular meetings with nature conservation interests in the areas covered by the water authority; and the great help that it would be to water authorities in those procedures were they to have one or two members who had some personal knowledge of nature conservation, and the other interests—the amenity of the countryside and recreation in the countryside interests—with which water authorities must be conversant and deal. I am grateful to the noble Earl for the assurance he has given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 11 [Provisions with respect to the Countryside Commission]:
[Amendment No. 173 KA not moved].
Baroness David Baroness David moved Amendment No. 173KB:
Page 77, line 34, leave out from ("include") to the end of line 39 and insert—

("(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

(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: My Lords, I spoke to this amendment last week when I moved Amendment No. 173YA. I think that the principle was accepted. I beg to move.
On Question, amendment agreed to.
Clause 39 [Powers of entry]:
[Amendments Nos. 1731, and 173M not moved.]
5.1 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173N:
After Clause 39, insert the following new clause:
("Report by Secretary of State
. The Secretaries of State shall submit to Parliament each year a report on the way decisions or actions by Ministers and public bodies have been modified by the duties imposed by section 11 of the Countryside Act 1968 and section 26 of the Countryside (Scotland) Act 1967 to have regard to the desirability of conserving the natural beauty, amenity, wild flora, fauna, geological and physiographic features of the countryside.").
The noble Lord said: My Lords, this is another amendment that we discussed at Committee stage. It involves Section 11 of the Countryside Act which we were discussing a few amendments ago. Once again the noble Earl kindly wrote me a full letter, in this case about the Government's thinking on this. He suggested a number of reasons why he did not think it would be desirable for a report to be made to Parliament about the implementation of Section 11. Section 11 places a duty on Ministers and public bodies to take into account the interests of nature conservation and landscape interest in the exercise of their functions.
It is one of those enormously well-meant but incredibly general duties which are placed on Ministers and public bodies from which I am afraid it is difficult to see any positive result. I have no doubt that Ministers

549
and public bodies are constantly aware of the duties imposed on them by Section 11—have it forever in front of them, and take it fully into account in all the decisions they make. Although if that were actually the case, I must say I would personally be somewhat surprised. Nevertheless, even if that is the case that is not the impression that the general public have of the efficacy of Section 11. On the contrary, it is widely regarded as being of no practical use whatsoever.
It is unfortunate if one of the major planks of the statutory powers which nature conservationists and those interested in the landscape of the country have is simply considered to be of no value because nobody takes any notice of it. It does not do much for the law of this country, and certainly it does not say much for the attention that Ministers and officials of public bodies pay to Acts of Parliament. There was a committee set up by the last Government composed entirely of senior civil servants and representatives of the statutory agencies like the Countryside Commission and the Nature Conservancy Council which looked at a wide range of issues in the countryside, and with most of whose conclusions this Government, and I think most other people who looked at it, disagreed. But just because a number of their conclusions were not accepted and the committee was subsequently disbanded by the Government, it would be unfair to those concerned to say that everything they suggested was of little value, and that there were not some recommendations which could be implemented.
One of the recommendations they made was that there should be some annual reporting to Parliament on the implementation of Section 11. Whatever other arguments may be brought forward against this amendment, it clearly cannot be that any particular department has overwhelming objections to it because the officials representing all the departments that might be interested sat on this committee and they all agreed that this was a practical, realistic, and indeed sensible proposition to put forward in a public document for the public and Ministers to consider. Therefore, I hope there are no practical objections to it.
I changed the amendment slightly to meet one of the arguments against it which the noble Earl put in his letter, which was that Section 11 was aimed at Ministers and public bodies, and logically therefore the requirement would have to extend to all Ministers, and indeed nationalised industries whose activities were likely to impinge on the countryside. I have now asked that Secretaries of State—that would be the Secretaries of State for the Environment, and for Wales and Scotland—report on the way that actions and decisions by Ministers and public bodies in general have been modified by Section 11.
The noble Earl suggested that if this were introduced for Section 11 a similar requirement would be needed in respect of Section 37, which calls on every Minister to have due regard to the needs of agriculture and forestry, and the economic and social interests of rural areas. All I can say to that is, "Hear, hear"! I hope it does. It would be an excellent thing for somebody who lives in a rural area and farms. I do not think anybody pays nearly enough attention to the problems of rural areas, including the present Chancellor of the Exchequer. It would be a good thing if Ministers and public bodies had to tell us what
550
account they had taken of the social and economic needs of agriculture and rural areas in general. If that were the case, maybe we would not have had some of the proposals that we have had from this Government which would have affected rural Post Offices, and in the Budget which would severely affect everybody living in rural areas, and particularly the agricultural industry. I am all for Ministers having to pay a lot more attention to both Section 37 and Section 11. If this amendment were passed and they had to do both, it would be an excellent thing. I see that as a strong argument in favour of the amendment.
The next argument seems to be that reports to Parliament are not of great use. That is an argument that Ministers and officials use, but it is not an argument which should be acceptable to Parliament. Reports to Parliament are of enormous value to Parliament. They may be a difficulty and an embarrassment to Ministers, and it may be a chore for civil servants to have to write the reports, and it may even be a bit difficult for everyone to continue to ignore Section 11, or indeed Section 37 of the Countryside Act to the extent which I have a feeling they do at the moment, if they know they are going to have to report to Parliament on steps they have taken to modify their actions in the light of those sections.
Reports to Parliament give all of us, parliamentarians and indeed all the general public, the opportunity to see what Ministers have actually been doing. It gives us an opportunity to ask intelligent questions about the actions they have taken, and to complain about them. It does not seem to me that it should be for Ministers to decide whether these reports are useful. It should be for Parliament and the public to decide, because it is in the wider public interest that such reports are produced not for the comfort and benefit of Government Ministers. Although, of course, if they have taken some worthwhile actions, such a report gives them an excellent opportunity to blow their own trumpet, which I am sure no Minister would ever want to turn down.
The final argument I can see being given against this amendment is that it would be an onerous burden because in endless ways, endless decisions are going to be significantly modified by Section 11 of the Countryside Act. I do not believe for a moment that that is true. In any event, I would expect that such an annual report would cover major decisions that have been modified by Section 11. It would not cover the generality of small, routine decisions and it would be quite clear to Ministers what things they should put in the report and what things really were not worth troubling Parliament with. That would be the case on any report that anybody wrote about their actions under a particular Act of Parliament. I hope I have managed to demolish the noble Earl's brief in response to this amendment and that it will be acceptable to your Lordships. I beg to move.
Lord Donaldson of Kingsbridge: I support the amendment, my Lords. It is always thought impossible to make a report about anything which has not been required traditionally. On the other hand, extraordinary changes are going on as the result of legislation and for the Secretaries of State concerned to report to Parliament once a year on what is happening would

551
be an invaluable effort for them; it would make them much more aware of what their departments were doing, it would be very useful to Parliament, as my noble friend said, and I therefore hope we will not get one of those blank negatives which we expect from the Minister.
The Earl of Avon: My Lords, the danger of writing to the noble Lord, Lord Melchett, with one's argument is that one gets the argument thrown back along with the answers as well. I recognise that the amendment is a sincere attempt to overcome the objection which I explained in Committee. The proposed annual report to Parliament by the Secretaries of State would cover not just their own activities but those of other Ministers and all public bodies. While the earlier amendment had less point, because the Secretaries of State are themselves accountable to Parliament, this one would impose a burden on the Department of the Environment, the Welsh Office and the Scottish Office. It would be necessary for them to monitor the activities of all public bodies throughout the course of the year in order to provide an annual report on what has or has not happened because of the provisions of Section 11 of the Countryside Act 1968 and Section 66 of the Countryside (Scotland) Act 1967.
I acknowledge that the Countryside Review Committee considered there might be merit in introducing arguments to ensure accountability under Section 11 of the Countryside Act 1968. This was a theme raised first in their initial paper The Countryside—Problems and Policies, published in 1976, which the committee returned to in their final Discussion paper No. 4, Conservation and the Countryside—Problems and Policies. The latter was published in 1979 and mooted the possibility of an annual report to Parliament by the Secretary of State. But the committee recognised that that was not the only way, and I must emphasise that the Countryside Review Committee was an unusual body. Although composed of public servants, they served in a personal capacity and the committee's papers were published on an exploratory basis. Publication did not commit individual members of the committee or their parent bodies and, in particular, they did not commit Ministers. That was made clear in a preface to each of the discussion papers.
The duty laid on Ministers and public bodies by Section 11 of the Countryside Act 1968 and Section 66 of the Countryside (Scotland) Act 1967 is a most important one, and both I and my colleagues stand by our determination that it must never be overlooked. But it is the Government's view that formalisation of this aspect of decision-making by means of an annual report to Parliament is undesirable. It might help if I were to read out what the section says:
"In the exercise of their functions relating to land under any enactment, every Minister, Government Department and public body shall have regard to the desirability of conserving the natural beauty and amenity of the countryside".
The Government believe that is a full and forthright statement on which to rest their case.
Lord Melchett: It is a full and forthright statement, my Lords, but the question is whether anybody takes any notice of it. The only way Parliament and the public can know whether anybody takes any notice of
552
it is if Ministers will tell us what they are doing about it, and the noble Earl will not; all he will tell us is what they are meant to do about it and what is already in legislation. I accept from him that the Government have a commitment to ensure that Section 11 will never be overlooked, in his words, and I assume that, to ensure that is the case, civil servants and Ministers at the Department of the Environment, the Welsh Office and the Scottish Office monitor what is being done by other departments and public bodies with great care to ensure that Section 11 is not overlooked. That is what we want reported to Parliament—the outcome of that monitoring.
The noble Earl spoke as if the amendment would require that monitoring process to take place. If the noble Earl's department and the departments of his colleagues are doing their job properly, they must be doing that monitoring now. As we know, the committees within government, of both Ministers and officials, which determine everything that happens within government, will be taking this into account because the Department of the Environment and the Scottish and Welsh Offices will be represented on those committees. Section 11 will be thrown into the melting, pot of discussion on a wide range of issues whenever those departments feel it should be. What we want is an annual report saying when that happened and what action resulted from it.
Of course, if the departments of the noble Earl and his colleagues were not monitoring the provision properly, then the suspicions of everybody outside about the worthlessness of Section 11 would be justified, but I would not for a moment charge the noble Earl and his department or other Government departments with that degree of incompetence or laxity. Nevertheless, I believe it fair that Parliament should require a report so we can actually see they are doing their job rather than simply have the noble Earl's assurance for it, valuable though that is.
This is not a particularly controversial point. It is a point on which there has been a good deal of agreement on all sides and, as I pointed out, agreement by representatives of all Government departments which might be interested. I appreciate that civil servants do not commit Ministers or their departments. Nevertheless, I have not yet come across a committee composed of civil servants which did not reach a recommendation which would not in practice be able to be accepted by Ministers or their departments, and am sure that of all the recommendations they may make, this must be the least controversial, so I hope the House will accept the amendment.
5.17 p.m.
On Question, whether the said amendment (No. 173N) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 97.

CONTENTS

Airedale, L.

Banks, L.

Amherst, E.

Beswick, L.

Ampthill, L.

Birk, B.

Ardwick, L.

Boothby, L.

Avebury, L.

Boston of Faversham, L.

Bacon, B.

Briginshaw, L.

Balogh, L.

Brockway, L.

553

Bruce of Donington, L.

Loudoun, C.

Chorley, L.

Lovell-Davis, L.

Collison, L.

Melchett, L.

Cooper of Stockton Heath, L.

Mersey, V.

Craigavon, V.

Noel-Baker, L.

Crowther-Hunt, L.

Northfield, L.

David, B. [Teller.]

Oram, L.

Denington, B.

Peart, L.

Donaldson of Kingsbridge, L.

Phillips, B.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L.

Fletcher, L.

Rathcreedan, L.

Foot, L.

Ross of Marnock, L.

Gaitskell, B.

St. Davids, V.

Gladwyn, L.

Segal, L.

Goronwy-Roberts, L.

Somers, L.

Gosford, E.

Stamp, L.

Greenwood of Rossendale, L.

Stedman, B.

Gregson, L.

Stewart of Alvechurch, B.

Hale, L.

Stewart of Fulham, L.

Halsbury, E.

Stone, L.

Hampton, L.

Strabolgi, L.

Hanworth, V.

Strauss, L.

Houghton of Sowerby, L.

Taylor of Gryfe, L.

Howie of Troon, L.

Taylor of Mansfield, L.

Hunt, L.

Thurso, V.

Hylton-Foster, B.

Underhill, L.

Ilchester, E.

Wallace of Coslany, L. [Teller.]

Janner, L.

Jeger, B.

Wells-Pestell, L.

Kilmarnock, L.

Whaddon, L.

Kinloss, Ly.

White, B.

Leatherland, L.

Wigoder, L.

Listowel, E.

Winterbottom, L.

Llewelyn-Davies of Hastoe, B.

Wootton of Abinger, B.

Longford, E.

Wynne-Jones, L.

NOT-CONTENTS

Airey of Abingdon, B.

Home of the Hirsel, L.

Alexander of Tunis, E.

Inglewood, L.

Allerton, L.

Kemsley, V.

Alport, L.

Killearn, L.

Auckland, L.

Lauderdale, E.

Avon, E.

Long, V.

Balfour of Inchrye, L.

Lonsdale, E.

Bellwin, L.

Lyell, L.

Belstead, L.

Mackay of Clashfern, L.

Bessborough, E.

Macleod of Borve, B.

Burton, L.

Mancroft, L.

Buxton of Alsa, L.

Mansfield, E.

Caithness, E.

Margadale, L.

Campbell of Croy, L.

Massereene and Ferrard, V.

Cockfield, L.

Middleton, L.

Cottesloe, L.

Monk Bretton, L.

Cullen of Ashbourne, L.

Morris, L.

Daventry, V.

Mottistone, L.

de Clifford, L.

Moyne, L.

De Freyne, L.

Murton of Lindisfarne, L.

Denham, L. [Teller.]

Newall, L.

Drumalbyn, L.

Norfolk, D.

Eccles, V.

Northchurch, B.

Ellenborough, L.

Nugent of Guildford, L.

Elliot of Harwood, B.

Onslow, E.

Elton, L.

Peel, E.

Exeter, M.

Portland, D.

Faithfull, B.

Reigate, L.

Ferrers, E.

Renton, L.

Feversham, L.

Ridley, V.

Fraser of Kilmorack, L.

Romney, E.

Gainford, L.

St. Just, L.

Glasgow, E.

Saint Oswald, L.

Gormanston, V.

Sandys, L. [Teller.]

Gowrie, E.

Savile, L.

Gridley, L.

Selborne, E.

Grimthorpe, L.

Shannon, E.

Hailsham of Saint Marylebone, L.

Skelmersdale, L.

Spens, L.

Hawke, L.

Stanley of Alderley, L.

Hemphill, L.

Strathcarron, L.

Henley, L.

Strathclyde, L.

554

Strathspey, L.

Vaux of Harrowden, L.

Swinfen, L.

Vickers, B.

Swinton, E.

Vivian, L.

Terrington, L.

Waldegrave, E.

Teviot, L.

Westbury, L.

Tranmire, L.

Wise, L.

Trumpington, B.

Yarborough, E.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 40 [Interpretation of Part II]:
[Amendment No. 173P not moved.]
5.26 p.m.
Lord Craigton Lord Craigton had given notice of his intention to move Amendment No. 173Q:
Page 34, leave out lines 17 and 18.
Baroness David: My Lords, the noble Lord, Lord Craigton, has asked me to act in his absence. He spoke to this amendment with Amendment No. 163H. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 173R and 173S not moved.]
Lord Melchett Lord Melchett moved Amendment No. 173SZA:
Leave out Clause 40.
The noble Lord said: My Lords, this amendment brings us right to the very end of Part II of the Bill. I do not intend to press the leaving out of Clause 40, but I wish to raise with the noble Earl—I have given him notice of this—the question of the term "sites of special scientific interest". Your Lordships will remember that we had a brief discussion about this point at the Committee stage, and I think that all of us agreed that the term "sites of special scientific interest" is a terrible mouthful at the best of times, and "SSSIs" is even worse, especially if one is trying to go quickly, late at night, after dinner. At Committee stage, when I moved an amendment to this effect, it seemed desirable that the term should be changed.
I have had long discussion with those authorities in your Lordships' House who are experts in these matters about how I could change the term. Although the term "sites of special scientific interest" has been very widely used in our debates, it appears nowhere in the text of this Bill, nor any Act of Parliament. It appears in a sidenote to the 1949 Act, I think, and in amendments to this Bill. One cannot by way of amendment amend a sidenote. On page 24 of the Bill, the sidenote in the left-hand margin, alongside Clause 27 states:
"Orders designating certain areas of special scientific interest".
Your Lordships will notice that that sidenote refers to "areas", whereas they are actually called "sites". I am told that this is simply a decision of the draftsman, or possibly not even that, but rather a case of the Government telling the draftsman what to call clauses.
So my message to the noble Earl is, first, get rid of this terrible acronym, and mouthful, simply by issuing an instruction to the effect that another term should be used. Thus, when the Bill is being reprinted, without an amendment having been made in your Lordships' House, without in fact any noble Lord being able to move an amendment, even if he so desired—and I certainly

555
did—the term can be changed, as if by a miracle. The noble Earl holds this enormous power in the palm of his hand, and I very much hope that now that he is aware of that power he will use it. Even if the Government cannot finally decide what they would like to call the sites, they can at least decide that they should be called not "areas of special scientific interest", but something else. In deference to my noble friend Lady White, who raised this problem at the Committee stage, I should like to suggest that they be called "wildlife conservations areas" or "geological conservation areas". I realise that that would involve having two terms, but the sites are quite widely known as the "biological SSSIs" and the "geological SSSIs". We would greatly simplify matters if we could get rid of that distinction by calling the two sets of areas different things.
In our debates in your Lordships' House on Part II of the Bill we have in fact talked about biological SSSIs, the rate of destruction of biological SSSIs and so on. So it seems to me that it would be a valuable simplication to have two alternative names depending on whether the site or the area has been designated for its wildlife interest or for its geological interest; and I hope that, without the noble Earl needing to do anything more, when the Bill is reprinted we shall see in the margin on page 24, "Orders designating certain wildlife conservation areas or geological conservation areas". If they cannot accept this now, I hope that the Government will work away behind the scenes to make sure that this important change is made before the Bill is reprinted after our deliberations today. I beg to move.
The Earl of Avon: My Lords, of course we go along with the noble Lord, Lord Melchett, about the incompatibility of the words "special scientific interest" late at night and a term which produces no beauty at all when one wants to try to get a term which conjures up what it really means. I would go along with what the noble Lord has said. I should like to suggest myself that perhaps one might have them called "habitat protection sites" and "geological protection sites", as yet another alternative. I have also had put before me "areas of wildlife importance" and "areas of geological importance". We shall look at all these and see which we think is best. One slight trouble about the phrase "a wildlife conservation area" is that it becomes "a WC area", and I am not quite sure whether or not people will pick that up. Having said that, I am sure that noble Lords will realise that the Government are giving it thought and are moving along the same lines as the noble Lord opposite.
Lord Melchett: My Lords, I am grateful to the noble Earl. I had hoped that it would be called a WCA, not a WC, because that is what it would be—a wildlife conservation area. There is one other point I should have made in introducing these remarks and did not, but of which I think the noble Earl is aware, and that is that the rubric to Clause 27 does not refer to the areas which are covered by orders under Clause 27. If one reads it, it says, "Orders designating certain"—that is, orders designating some—of the sites of special scientific interest. So the terminology applies to all
556
these sites although Clause 27, of course, will apply only to very few. So the terminology used in the rubric to Clause 27 is the terminology which will apply to the total number of what are currently sites of special scientific interest. In those circumstances, I am not sure that protection is right, because as we all know, I hope, at the end of our debates on Part II the one thing that the sites of special scientific interest are not is protected against anything. A few of them may have some protection for 12 months as a result of Clause 27, but none of the rest is protected.
It may be that a misleading title will be helpful to the nature conservation cause, but I think I would prefer to have them not misleadingly titled; and I dare say that that would be a view which farmers and landowners might share, though I do not know. But I am grateful to the noble Earl for considering this. I hope we might get something else in before the Bill is reprinted, before it leaves your Lordships' House, in any event, so if we do not do it by whenever the Bill is reprinted some time this week it can at least be done after Third Reading; and I hope the Government now have enough solid suggestions to enable them to come to some conclusion. I look forward to seeing what it will be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 [Duty to keep definitive map and statement under continuous review]:
5.35 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173SA:
Page 34, line 37, after second ("to") insert ("subsection (1A) of this section and").
The noble Lord said: My Lords, this is an amendment which we discussed at Committee stage; and, as noble Lords will see in the case of both this amendment and of a number of others to which my name is put down, there has been an attempt, in order to reduce the amount of time we spend on Part III of the Bill and to ensure that we finish at a reasonable hour tonight, to consolidate various of the amendments which were discussed at Committee stage and to reduce the number brought back at Report. To that end my noble friend Lord Fletcher, the noble Lord, Lord Avebury, and the noble Viscount, Lord Hanworth, have combined on a number of amendments, and in one or two cases there has been a slightly different combination; but that is the purpose behind this. There was some discussion and an attempt to reduce the number of amendments brought back at Report stage.
This was an amendment which the noble Lady, Lady Kinloss, moved at the Committee stage, and the two amendments—I should like to speak to the following amendment, No. 173SB, as well—aim to deal with an important matter, but a matter of drafting. Clause 41(1) and Clause 49(1) define the words, "definitive map" and "statement" as being either, first, the current definitive or revised definitive map and statement or, second, where there is no definitive map and statement, the map and statement prepared under Clause 43(2).
The worry of those of us who have our names to this

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amendment is that the definition means that orders made under Part III to modify the map and statement will not legally form part of the map and statement unless and until a new map is prepared; and that will be prepared under Clause 45(2). So there would be a definitive map and statement and then a number of orders made to change it, to modify it, but they, it appears, will not be legally part of the map under the definitions in the Bill. Clause 45(2), which is the clause under which the new one will finally be prepared—and I sympathise with the noble Lord, Lord Stanley, if he is finding this difficult to follow, because I certainly am—makes reference to the map and statement as modified by orders. In other words, when the new one is finally prepared and becomes a definitive map it is a map as modified by orders, which lends support to the view—and I have some legal advice which says that this is a tenable view—that the orders themselves are not part of the definitive map until the Clause 45 procedure is gone through and a new one is produced.
These amendments do not try to change any existing intention in the Bill at all. What they do try to do is put right the submission by making it clear that orders will legally form part of the map and statement as soon as they take effect. This applies with equal force on those who want to close or divert footpaths and those who want to have them established, or those who want to raise or lower a right of way; but it really does seem a bit ridiculous that, once one has gone to all the trouble of getting an order and getting it agreed, it should not then definitely form part of the definitive map and statement—and the amendment simply ensures that that would happen.
As I say, despite the Government's view, which they expressed at Committee stage, that this is in fact what happens under the Bill, my legal advice is that it is not the case and that in fact the court, in looking at the wording of the Bill, and particularly in view of what Clause 45 says, would probably take the view that these orders do not form part of the definitive map and statement until the Clause 45(2) procedure is gone through. It is a minor clarification but an extremely important one if I am right and the Government are wrong. In any event, it seems sensible, given the amount of effort put into making orders, to make absolutely certain that they legally become part of the map once they are finalised, and I hope this will be acceptable to the Government. I beg to move.
Viscount Hanworth: My Lords, I would simply say that so far as I know there is nothing between the Government and ourselves as to the intention; but if this has been looked at rather carefully by a solicitor and a barrister—and I think there has been other legal advice—and that is the way they read it, there surely is a clear case, whether or not the Government think it is covered, to make the situation utterly clear. I know that the objection sometimes raised against doing this is that it is repetitive, but there is absolutely no excuse for not making a Bill as clear as it can be.
Lord Bellwin: My Lords, as the noble Lord, Lord Melchett, indicated, these amendments are similar to those tabled in Committee by the noble Lady, Lady Kinloss, in as much as they would ensure that changes
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to definitive maps and statements embodied in orders are subject to the provisions of Clause 44 regarding conclusive evidential effect of definitive maps and statements. I said, in connection with the noble Lady's amendments, that we felt that they were not necessary. Having gone round the track again, we still feel that that is the position. I recognise the wish to have it clear so that there should be no misunderstanding. I understand that that is the sole objective of the amendment. Our legal advice is that it is covered in the Bill already, as I have said before. I could go over my note here and restate the arguments, but there does not seem to be much point in doing that. It is a question of whether or not the legal opinion to which the noble Lord, Lord Melchett, refers is the right one or whether the advice that I am given is right. It is a question of fact. I am assured that the concern expressed need not be felt. For that reason we do not wish to accept the amendment.
Lord Fletcher: My Lords, I hope that your Lordships will not be satisfied with that reply. It is not good enough for the Minister to say that it is a question of fact. He also said that the amendment is not necessary. It is not a question of whether it is necessary but a question of whether it is desirable. It may or may not be necessary, but it is surely in the interests of clarity that the position be made abundantly clear. There cannot be any valid objection to the amendment. There may be a difference of opinion between legal advisers as to whether it is necessary or not, but that does not conclude the matter. If an amendment of this nature is put forward in the interests of clarification, and if it is argued, as my noble friend has argued, that it is desirable to have it, surely the Government should have the courtesy to accept it. It cannot do any harm to accept it and I invite your Lordships to express the view that the Minister's reply is thoroughly disappointing.
Lord Avebury: My Lords, I was very disappointed in what the Minister said. I have always understood that the one essential of good drafting is certainty. If there is a difference of opinion between the Minister's advisers, on the one hand, and the advisers who have helped us, on the other hand, then the safe course of action is to take the step recommended in this amendment and incorporate the words in the clause. May ask the Minister this? If that is done, will there be any difficulty in the courts that he can foresee on the construction of the Bill by reason of the addition of those words? If he says "No" to that question, then there can be no objection to having the words there. But there can be the advantage that the Act must be construed not only by lawyers but by people like ramblers who are not necessarily legal experts but who want the words in the Bill to mean what they appear to mean.
If the definitive map and statement is not to include the additional words suggested in this amendment, then most people reading it would think that those orders did not form part of the definitive map and statement. The noble Lord says that they do, but the Bill does not say that. This Bill has to be read by many people who are not legal experts. There is a dispute which could go wrong if the Minister's advice is incorrect,

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and lead to some expensive litigation in the courts as to the exact meaning of this term—and this is something which could easily be put right if the amendment is accepted. Secondly, and more importantly, this Bill affects a large number of people who enjoy the countryside. They want to be able to read the Bill and to understand it.
Lord Bellwin: My Lords, with h leave, perhaps I will now give the detail that I was trying to avoid having to do before, in that the noble Lord, Lord Fletcher, felt that my response was less than satiafactory. The fact is that Clause 41(2) states categorically that authorities
"shall by order make such modifications to the definitive map and statement as appear to them to be requisite".
The only possible construction that can be placed on this provision is that the definitive map and statement is modified immediately the order is made and takes effect. That there may be a hiatus between the order taking effect and the information it contains actually being shown in the definitive map and statement does not undermine that fact. The situation whereby definitive maps and statements will not in practice reflect the actual effect of orders immediately is recognised by the fact that the Bill includes a specific provision—Clause 45(2)—which enables authorities periodically to reproduce a copy of the "modified map and statement" which shows the actual changes embodied in orders. The Bill was also amended in Committee to ensure that until the "modified map and statement" is reproduced copies of orders are placed on deposit for public inspection together with the map and statement they modify.
Despite what was said, I am content that the Bill's provisions do not require additional clarification. To take up the point made by the noble Lord, Lord Avebury, I could not accept that as an argument. If you always took account of that, where would you he in the end?
Lord Melchett: My Lords, you would be with clear, concise and unarguable legislation. The noble Lord, Lord Bellwin, did not answer the question that Lord Avebury asked. That question was: if this amendment were put into the Bill, would it lead to any problems with interpretation? The noble Lord's quotation from Clause 45(2) does lead to a problem. It does not seem to be clear to me, reading it as somebody who is not a lawyer. The legal advice (as my noble friend has said, and as was said by the noble Viscount, Lord Hanworth) was given to a consortium of all the interests involved in public rights of way. The advice by solicitors and counsel has been that the Bill is not clear and that it is possible that all the process of order-making will he gone through, and that that will not be taken to alter the definitive map until the procedures in Clause 45(2) are gone through. It would be a disaster if that were the case. Is it a risk worth running? I cannot understand why the noble Lord wants to run it. I accept that he has clear legal advice, on the one hand and the people behind the amendment have clear legal advice.
It is not the sensible and reasonable thing to do for Parliament to put the provision beyond doubt by
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including the amendment? Unless the noble Lord can tell us that the amendment will do harm, I cannot see why the noble Lord should withdraw the amendment.
Lord Bellwin: My Lords, if the House will allow me to speak again, I think you can take this argument all ways. You can say that this will do no harm, but my advice is that it is not necessary. But the one point that I make (and I have said this on all the Bills I have dealt with) is that we want the best and clearest Bill we can get. If it is felt that there may be a difficulty of the kind referred to, and it is felt that it is not clear, I will undertake to take the point back and look at it and discuss it again with the legal advisers. Should the situation be as the noble Lord has said, we will have no hesitation in making a change. However, I think at this moment that I would be no more justified in accepting that what the noble Lord has said is right, so far as his legal advice is concerned, than I would be in turning down the advice by my legal advisers. But I accept there may be a point and we will look at it.
Lord Melchett: My Lords, it might be for the convenience of the House if that were treated as an intervention in my speech so that both the noble Lord and I will not be too seriously out of order. It is not a point of substance. We agree on what we want to achieve. It seems silly on an important point to leave it as drafted in the Bill with lawyers disagreeing with each other over the interpretation. That will end up in court and could go either way. The noble Lord said he will look at it again. I am grateful. It may be possible for the lawyer who has advised us to get in touch with the lawyer who advised the noble Lord, and to let them sort it out. That might be quicker and simpler, if not cheaper. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 173SB not moved.]
The Deputy Speaker (Baroness Wootton of Abinger): My Lords, I have to point out that if Amendment No. 173SC is agreed to I shall not be able to call Amendment No. 173SCA.
5.51 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173SC:
Page 36, leave out lines 1 to 8 and insert—
("(ii) that a highway shown in the map and statement as a footpath ought to be there shown as a bridleway or byway open to all traffic or that a highway shown in the map and statement as a bridleway ought to be there shown as a byway open to all traffic;
(d) the discovery by the authority of evidence showing beyond a reasonable doubt—

(i) that a highway shown in the map and statement as a byway open to all traffic ought to be there shown as a bridleway or footpath, or that a highway shown in the map and statement as a road used as a public path or bridleway ought to be there shown as a footpath;

(ii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.").

The noble Lord said: My Lords, this is also an amendment which we dealt with at the Committee stage. Its effect would be to require a higher standard

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of proof before an order is made to downgrade or delete a right of way already shown on the definitive map than is required before an order is made to add or upgrade a path. It has been the case since the introduction of the definitive map legislation in 1949 that surveying authorities should take steps to include rights of way on drafts of maps wherever, in their opinion, such rights are reasonably alleged to subsist; in other words, where on balance they believe that the evidence indicates the existence of public rights.
In extending this principle to the making by authorities of orders to downgrade or to delete a way already shown on the map, the Bill has raised some very real fears. If I may say so to the noble Lord, it has seriously upset the balance which has existed since 1949 between those interested in maintaining public rights of way and those interested in ensuring that there should not be too many public rights of way or that, where there is not a very strong case, they should be taken off the list. There has been a balance. Although it has led to a large number of appeals that the Department of the Environment have not been able to deal with as speedily as everyone wished, nevertheless that balance seemed to be a fair and reasonable one. This provision upsets that balance.
What those interested in the use of public rights fear is that the definitive nature of the definitive map will be undermined and that many orders will be made to delete or downgrade ways which are already shown on the map. The whole point as I understood it (as something of a non-expert in this field) is that the definitive map should, so far as possible, be regarded as definitive. I always thought for myself, speaking as a rambler and a farmer, it was rather good that when the ordnance maps came out—the most recent series—we all knew that the public rights of way marked on them were more or less definitive. I know there were some changes in both directions, but the general feeling was that at last we had something which was at least intended to be definitive. This would drive, if not a coach and horses at least a small pony and trap through that definitive nature of the definitive map.
My Lords, if the amendment is accepted it will not mean that orders to downgrade rights of way cannot be made but merely that before making such an order the authority must be satisfied beyond a reasonable doubt that the evidence does not justify downgrading or deletion. There is nothing in the amendment—and I say this to noble Lords opposite in particular, who I know are listening with great care—which prevents the correction of mistakes on the definitive map. I know that both sides feel that there have been some mistakes. That is where it can be shown quite clearly—in other words, beyond reasonable doubt—that mistakes have been made.
Why should there be a distinction (which is what this amendment would achieve) between proposals to upgrade rights of way and proposals to downgrade them? Is that fair? I think that it is, for this reason. Where a proposal is put forward to put a new right of way on a map or to upgrade a right of way from a public footpath to a bridleway or whatever, the individuals affected, the owner and the occupier, will personally have to be served with a notice that this is intended and will personally have every opportunity
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to object and to present a case against this.
Where a proposal is made to downgrade a path, all those that use it are not served with a notice personally that that is going to happen. All that happens at the moment is that there will be an advertisement in a local newspaper. That might be all right if everybody living locally read the local newspaper and they were the only people who might happen to use the path, but I do not believe that either of those facts is the case. There will be many people who do not read local newspapers—newspapers are very expensive nowadays. Secondly, many people from outside that immediate area will possibly use the path and will wish to object if it is downgraded.
In other words, there is not, by the nature of things, exact equality between the two interests involved. The landowner's and farmer's interest is very particular and important. They get a personal notice when a change is going to be made. The public interest, represented by the users, is much more diffuse and may be spread over the whole country in the case of some paths. It will not be particular to certain individuals, and they will not have notices served on them personally; it will simply be a notice in a local paper.
I do not think that it can be claimed that these two interests should be treated in exactly the same way; otherwise, it would be argued that farmers and landowners could rely on an advertisement in the local paper just as well as public path users. I would not accept that argument. I hope that noble Lords opposite will not suggest that although that applies there should be the same evidence for both sides, which this amendment would change. I hope that explains the amendment as clearly as possible and that the Government will accept that the position as it was since 1949 should continue to apply. I beg to move.
Viscount Hanworth: My Lords, proof of right of way often depends on local knowledge going back a long way. In a number of cases the people who would be able to provide the information that that right of way really was there are likely to be dead. That is one reason why one has to be more careful in abolishing a right of way than in establishing one. The other aspect was the thinking for years and years—until this Bill came up—that it was res ajudicata, which means that the matter has already been decided and that only if there is good reason should it be opened up again. If one does not have that idea one can imagine that landowners or others might frequently raise this at intervals. This would be a great nuisance and would mean that those who were interested in a right of way would no doubt have to spend a lot of money in fighting the case over and over again. I hope that the Minister will once again look at this very reasonable amendment.
Lord Stanley of Alderley: My Lords, I thought that the noble Lord, Lord Melchett, was particularly plausible today, which makes me very suspicious of him. He did, in his own words, try to drive a cart and horses, and then he realised that he should not have used those words because that is exactly what this amendment, as I see it tries to do. It is what I have marked in my brief as "all up and no down". It is easy enough to make better rights of way—that is, footpaths into bridleways and bridleways into byways open to all

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traffic—but we are not allowed the same procedure going downwards. I am afraid that I cannot accept his very plausible (and I admire him for it) argument why it should be like that. I hope that the Government will resist it.
Lord Bellwin: My Lords, in the first place, the amendment would prevent the upgrading of a road used as a public path to a byway open to all traffic. I must confess to not understanding why the amendment should deal with RUPPS in the context of Clause 41 when Clause 42 provides for their re-classification. Be that as it may, I cannot accept the desirability of preventing upgrading to a byway if the evidence supports it. The amendment then requires that evidence of downgrading should put the matter beyond reasonable doubt. I find the application of the onus of proof appropriate to criminal matters curious and unsatisfactory. I cannot see why, if there is substantial evidence to support a proposal, the ordinary civil test, which requires that the evidence should put the matter beyond reasonable doubt, should not prevail. I think it would be wrong not to act if such evidence were available.
Finally, because I do not think there is anything further I want to add, the amendment seeks to prevent a RUPP—and what an unfortunate name that is—from being downgraded to a bridleway. I cannot see any justification for the proposal unless there is evidence of the non-existence of bridleway rights. However, I would point out again that it is really out of place to deal with RUPPs in Clause 41 when Clause 42 deals with them. As always, I have listened carefully to the noble Lord, Lord Melchett, but I think, as he said, that this is perhaps not the most important part of the Bill. I do not think we can accept the amendment.
Lord Melchett: My Lords, it is not the most important part of the Bill, and I daresay we would all wish to get on to that. This provision was in the previous legislation and has worked perfectly well, so far as I am aware. Indeed, I think it must have worked perfectly well so far as the Government were aware, because they did not mention the possibility of changing it in any of their consultation papers. This was a change, as I understand it, which was sprung on those affected in the Bill when it first appeared. The noble Lord, Lord Stanley, says that the more plausible I am the more suspicious he gets. I just wish that occasionally he would listen to the arguments, and, if they are good arguments, that he would be capable of accepting them without this deeply suspicious nature, which I must say is not characteristic of most farmers most of the time. I am afraid the noble Lord, Lord Stanley, will be giving us all a very bad image.
This amendment is not one that I want to press. I do not think the Government have behaved in a very straightforward way over this. If they had really thought it was unsatisfactory or that there were problems, they would have mentioned it in their consultation papers. It has been brought up very much at the last minute and I am sure it is something that Members in another place will want to pursue, because, if it has worked perfectly well for all those years since 1949 and the Government saw no need to
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consult about any changes, it does not seem to me fair to make the change in the Bill. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.3 p.m.
Lord Monk Bretton Lord Monk Bretton moved Amendment No. 173SCA:
Page 36, line 4, 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: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 173SCC and 173SCE. These amendments deal with the specific question of reclassifying roads used as public paths and they are a vital part in the broader question of vehicles, particularly motor-bikes, on paths. I recollect that if there was one matter upon which your Lordships appeared to display some unanimity at Committee stage it was my noble friend's remark at col. 627 on 17th February that definitive maps of public paths are essentially,
"for the benefit of people on foot or on horseback"—
that is to say, rather than for the benefit of people who are motor-cyclists or other off-road vehicle users.
I remain concerned about the position because I think the Bill gives greater scope to motor-cyclists to gain further access to public paths, which could be a problem for owners, occupiers and other users of paths. As an instance, I would mention that currently on the reclassification under the 1968 Act of a road used as a public path, where the way is not really suitable for vehicular traffic the present position in the majority of cases is that it will be reclassified as a bridleway. In future, however, where vehicle rights are proven, it appears that it will be much more difficult for the highway authority to classify as a bridleway where vehicular use is obviously pretty unsuitable. That remains a problem, as I say.
At this stage I do not want to go too deeply into the arguments because they could go on for a long time, but I want to try to elicit answers to the following points, which are causing me some anxiety. First, is it correct that roads used as public paths which were downgraded to bridleways as unsuitable did not have vehicular rights extinguished? Secondly, can vehicles use such bridleways now? Thirdly, could they do so if this Bill is passed as it now stands?
If I may run through the amendments as briefly as I can, No. 173SCC puts back into the Bill the idea of taking account of roads used as public paths and the suitability for vehicles before a track is shown as a byway open to all traffic. No. 173SCA removes from local authorities the obligation to reclassify for a second time those roads used as public paths which have already been downgraded as unsuitable despite ancient carriage use. The reason for anxiety over this is the cost and delay involved in going through all this again, which I feel will be only too likely in a number of cases. I still think more thought is required as to whether it is really justified to go through this long exercise once more. I do not believe there is all that much opposition to that particular amendment from footpath groups.
In connection with Amendment No. 173SCA, in the

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second line it says:
"nothing in this section shall cause an authority to show".
I should be happy to accept the word "require" rather than the word "cause", if that makes it easier.
The third amendment, No. 173SCE, explores the precise status of downgrading under the 1968 Countryside Act. It is believed, I think also by Government, that due to drafting deficiencies, when a road used as a public path with vehicular rights was downgraded to a bridleway the vehicular rights were not actually extinguished. Therefore, much of the work put in by county councils, the Department of the Environment and many individuals could well be wasted unless such a provision is introduced. I merely counsel the virtue of getting a decision of some finality, if possible, on this.
I should like to say a word also about the discretion that authorities have when reclassifying roads used as public paths. Previously suitability-of-the-way provisions gave a highway authority a further opportunity if they did not want to reclassify an unsuitable track as a byway. However, my noble friend said that under the Bill local authorities would nevertheless have sufficient discretion. I should like just to make the comment that it seems to me it will appear unfair to claimants—and in this case claimants might well be motor-cyclists—for the local authority to have received good evidence that a RUPP had vehicular rights over it but then not to have acted upon that evidence. The question arises: if the highway authority did that, could the claimant go to court for a writ of mandamus because the highway authority had refused to reclassify as a byway a road used as a public path? It is important to ask very precisely about this point. I do not think that we should allow the possibility of such court actions arising.
In this connection, the 1968 Act has led to 12 years of contention on this point and it would seem a great pity not to try to avoid the problem now. I am very anxious that my noble friend should find it possible to take back these amendments and have a good look at them. I am sure that they are not perfect, but I hope that he now understands what I am anxious to try to achieve. I believe that there is considerable support for some of them and I hope, therefore, that he will be able to yield us something. Otherwise, in certain cases, I shall feel obliged to press them. My Lords, I beg to move.
6.11 p.m.
Lord Melchett: My Lords, for myself I am not quite clear why the noble Lord is taking these three amendments together, but, certainly, I find great difficulties with Amendments Nos. 173SCA and 173SCC. The proposal in No. 173SCC, which I think is taken from a proposal that was put forward to the Countryside Act, seems to me to be far too subjective to make good law. I am not sure that it would be fair in Amendment No. 173SCA to prevent a surveying authority from taking account of a period of 20 years' use by motor vehicles of something which was reclassified as a footpath or bridleway. That seems to me to be a little excessive.
But as regards Amendment No. 173SCE—that is the later of the three amendments to which the noble Lord has spoken—I must say that I have a great deal more sympathy. As I understand it, that amendment
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makes clear that where a way formerly shown as a road used as a public path has been reclassified as a bridleway or footpath, any vehicular rights which may have existed have now been extinguished. In other words, when something is reclassified, that is that. The vehicular rights, if it is reclassified from a RUPP to a bridleway or footpath, are extinguished and that should be that. As I understand it, that is what Parliament intended when it passed the 1968 Countryside Act. It seems to me a sensible and useful amendment and it is one which I would support, because if you have gone through all the business of reclassifying something, that should then be the end of the matter.
But on the previous amendments, I would say that the test in No. 173SCC is far too vague and I do not think it is fair for Parliament to legislate to ignore 20 years' continuous use by vehicles of a road. That seems to me to be going a bit far. If the noble Lord intends to press any of these amendments, I hope that he will wait and press the third one.
Viscount Massereene and Ferrard: My Lords, I should like very briefly to support two of these amendments. Like the noble Lord, Lord Melchett, I shall certainly support No. 173SCE. I cannot see any objection at all to that. I do not quite understand the objection of the noble Lord, Lord Melchett, to No. 173SCC. I understand that it may not be very good law and that it cannot therefore be accepted. But I should certainly like the Government to consider it very carefully and, before Third Reading, to put in something to achieve the same purpose.
What I am frightened of, as I said in Committee, is that if you are going to allow scrambler bicycles and motor-cycles on these paths, where there are children riding ponies—and it is especially children riding ponies that I am thinking of—it may be that, although the ordinary hiker can leap out of the way in time, there will be a lot of nasty accidents with such children. I hope that the Government can accept these amendments, although perhaps I should not be speaking on them without prior study. I hope that Amendment No. 173SCE will be accepted and I should also like to see a new form of No. 173SCC. I do not see why No. 173SCA should not be redrafted and accepted. I do not know what my noble friend will do, but I support the feeling behind these amendments.
Lord Moyne: My Lords, I should like to make one small point to which I referred in Committee. If a road has been made into a bridleway, farmers will have put up gates and their agricultural practice will have become linked up with that. If, suddenly, the position is reversed the gates will have to be taken down.
Lord Bellwin: My Lords, I must confess that I find this group of amendments, taken together, somewhat puzzling. The first (No. 173SCA), if I have it right, seeks to give a local authority the discretion whether to upgrade to a byway open to all traffic a RUPP which has been downgraded to a footpath or bridleway. In saying this, I am assuming that the omission of the manuscript amendment changing the word "cause" to "require", which was tabled in Committee by my noble friend Lord Monk Bretton, is an error. As I mentioned in Committee, local authorities already have this discretion. The difference between my noble

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friend and myself is that he appears to think that authorities should not upgrade to byway in such cases, whereas I think that they should do so if there is evidence to justify that course.
The second amendment (No. 173SCC) seeks to include the suitability and hardship tests for reclassification of RUPPs which are found in the 1968 Act. I am against restoring those tests; they are based on subjective judgments and, not surprisingly, have been inconsistently applied. I respectfully submit that they have no place in an exercise whose purpose should be to establish facts. In addition, I regret to say that this amendment is inconsistent with the terms of Clause 42(3), which imposes a clear duty—not stated to be subject to any qualification—to reclassify as a byway where a public right of way for vehicular traffic has been shown to exist.
The third amendment (No. 173SCE) seems to be incompatible with No. 173SCA. This seeks to provide that where a RUPP has been downgraded on reclassification under the 1968 Act all vehicular rights are extinguished. If this were the case, then the question of upgrading to a byway could not arise as there would be no basis for so doing. But, in any event, as I have said, we are seeking to base the definitive map on a purely fact-finding process; a process which will tell us what rights of way exist, not what rights of way should exist. Furthermore, it would surely create an anomalous situation whereby vehicular rights were irrevocably lost in areas where special reviews had taken place, while they would continue to exist in those areas which had been slower off the mark. I should not have thought that that was a satisfactory situation.
My noble friend asked three specific questions. He asked: are vehicular rights extinguished? I submit that the answer is, no, they are not extinguished. He also asked whether byways can at present be used by vehicles following reclassification. The answer to that is, yes. The answer also is that under the Bill the position will be the same. I hope this is of some consolation to my noble friend.
I am most anxious to be helpful. I remember that when we discussed this subject during the Committee stage much concern was expressed about the effects of what was proposed. However, the more we have thought about it the more we have come to the conclusion that we have it just about right now. We shall carefully study what my noble friend has said—sometimes it is very difficult to follow detailed technical points as they are made—but unless it then appears that we might be able to make some move in the direction of my noble friend, I fear that we shall be unable to help him. Certainly we could not accept the amendments as they are now drafted.
Lord Monk Bretton: My Lords, I thank my noble friend for his reply to Amendment No. 173SCA. I am not very clear as to why the noble Lord, Lord Melchett, is concerned about 20 years of continuous use being ignored. This RUPP which has been reclassified has probably been reclassified as a bridleway over the last few years. The point I want to put to my noble friend on the Front Bench about it is this: If the highway authority have a very good reason for not wanting to have to reclassify an RUPP and to classify
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it upwards to a byway from a bridleway because of ancient traffic use, it is probably because the highway authority will then have to have recourse to a road traffic order and all the further expense and delay thereby involved. However, at this stage I will withdraw Amendment No. 173SCA.
Amendment, by leave, withdrawn.
6.22 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 173SCB:
Page 36, line 8, at end insert—
(" 4. (a) In the exercise of its duty under subsection (3) an authority 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.
(b) In the exercise of its duty under subsection (3) an authority 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: My Lords, I should like to speak to this amendment and also to Amendment No. 173SCD, both of which are similar to amendments which we put down during the Committee stage. May I speak also to an additional and more limited amendment, Amendment No. 174YB? The nub of the problem concerns prejudice and whether a landowner or occupier can bring evidence after a period of 20 years. We believe that we have the Government's support. My noble friend Lord Bellwin wrote to me and said:
"I would support the view that the decision on whether the path or way did or did not exist should turn on the consideration of evidence. In other words, evidence should always take precedence over the conclusive evidential effect of definitive maps, otherwise the ability of landowners to rectify errors which affected their interests would be severely limited".
During the Committee stage we received rather a different answer from the Front Bench. It was upsetting in so far as it implied that, while many users have constantly protested against definitive maps while the farming and landowning community have generally supported the Government in accepting definitive maps where they exist and have waited for their opportunity to bring evidence, farmers and landowners should thereby be penalised.
This leads directly to a question which still requires clarification. Must an individual with an apparent error remove physical features because the council or users consider them to be obstructions? To date, most farmers have allowed use pending an inquiry, but the rising potential for the expiration of 20 years while awaiting such a review must lead to considerable worry. It is unclear whether there is any way in which an individual can defend himself against the claim that although an error was made in the first place, 20 years have now expired. It is also unclear whether there is any difference between 20 years merely on the map and 20 years of use in consequence of mapping. Furthermore, it is unclear whether a sign inconsistent with

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dedication which is erected by an individual as would normally protect him against a claim of dedication is of any use when there is already conclusive evidence due to a definite mapping error.
It must be remembered that many people have not yet had an opportunity to bring forward their evidence and have it heard. It is generally acknowledged, not least by the users in pressing the amendment that the Government have now accepted to Clause 44, that the original definitive mapping process was defective. Not least in these deficiencies was the fact that owners and occupiers were not informed of claims on their land. There is manifest injustice, in that the individual may be prejudiced because the authority has not carried out its supposedly quinquennial review.
The new Amendment No. 174YB is therefore a minimal suggestion. It asks only that farmers and landowners should be given a seven year period during which any prejudice arising from the evidential provisions on the maps should not apply. I beg to move.
Lord Bellwin: My Lords, these amendments and the issues which they raise are extremely complex. I make no apologies for assuming, when they came up in Committee, that they were concerned to curtail the operation of the law on the presumed dedication of rights of way. I believe I am now correct in saying that my noble friend is concerned primarily to clarify the situation regarding the relationship between the conclusive evidential effect of the definitive map and statement and the presumed dedication of rights of way.
If this is the case, I think the following explanation will reassure him that farmers who seek, on the production of evidence, to have a way shown on the definitive map and statement down-graded or deleted will not be prejudiced or suffer injustice as a result of the conclusive evidential effect of the map and statement.
The essential feature of the evidential provisions is that the definitive map and statement is only conclusive evidence of the existence of the rights of way shown as at the relevant date accorded to the map and statement. If it were otherwise and the map was conclusive for all time we may as well terminate the discussion now since it would obviously be pointless to legislate for the revision of definitive maps. I am not aware of any suggestion that the evidential provisions operate to prevent the modification of definitive maps or that they take precedence over evidence which shows beyond doubt that the map is incorrect.
Similarly, a definitive map per se cannot in consequence of its conclusive evidential effect give rise to a presumption that a way of the description shown has been dedicated for all time. The sole factor that can give rise to a presumption of dedication of a public right of way is use of the way by the public without interruption over a long period.
In other words, if a landowner produces evidence to demontrate that a right of way shown on the definitive map in a particular status, which has never been used in accordance with that status, should be downgraded a potential objector would be unable to rely on the conclusive evidential effect of the definitive map to support his objection. The final decision on the status of the path would rest solely on the assessment of the evidence. I acknowledge that in the case of
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reclassification of RUPPs we have made an exception to this general rule by providing that in the absence of evidence of vehicular or footpath rights the evidential effect of the definitive map should prevail to the extent that RUPPs should be reclassified as bridle-ways. We believe this is right. For a way to have been shown as a RUPP in the first place there must generally speaking have been some evidence of bridleway rights. Moreover, under the new criteria applicable to reclassification it seems a reasonable assumption that the vast majority of RUPPs will become byways open to all traffic on the basis of evidence of vehicular rights. In the particular situation highlighted by the second part of Amendment No. 173SCD evidence would presumably be available to show whether bridleway or footpath rights existed, otherwise the description on the definitive map and statement would be otiose.
As for my noble friend's third amendment, I am not sure that it achieves the desired effect because, as I said a moment ago, it is use, not the inclusion of a way in the definitive map and statement, that gives rise to a presumption of dedication.
I hope that my noble friend will feel, in all the circumstances, that the amendments are not necessary and that he will agree to withdraw them. In saying that, I recognise the complexity of the points which he has raised and the answer which I have given, but I hope he will feel able, certainly on considering carefully what has been said, to make such a decision.
Lord Stanley of Alderley: My Lords, before my noble friend decides what to say, I like quite a lot of what has been said, but I am not at all happy that that is what it says in the Bill. Unfortunately I have not moved on to the new Bill, I am afraid from laziness, and I still do not think that my noble friend has answered the question that I put to him at the Committee stage in column 639. However, I shall let my noble friend decide what he is going to do about it because that is what is worrying me and I am not sure that the Bill says what he has said or what I thought he said.
The Earl of Caithness: My Lords, this is complicated and I should be grateful if the House would give leave to my noble friend to answer this question: if a definitive map was made, say, in 1954 and for some reason it was wrongly mapped and had been used since 1954 until the present date, which is about 27 years, and one can now bring conclusive evidence that it was wrongly mapped, has the owner or occupier a right to appeal against the wrong mapping?
Lord Bellwin: My Lords, I should have thought that he would have the right to appeal, but clearly that is something that one would want to check and confirm.
Lord Moyne: My Lords, I do not know whether I am in order in speaking again, but this is a different amendment from the one on which I spoke previously. I should like to raise for my noble friend's consideration whether, if a landowner objects to the suggestion made, during the period of appeal the bridleway can be used as a vehicular way during what may be a very

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long period. I think that that has given concern to many of us.
Lord Fletcher: My Lords, I think that the noble Lord opposite has raised a vital question and I can sympathise with the Minister in not being able to give a reply. I appreciate that it is not easy to give a reply, but he has promised to look into it and to give a reply to his noble friend. I think it would be very useful if that reply could be made general, perhaps in writing, because this is an important point.
The Earl of Caithness: My Lords, in view of the complications that we still seem to be in on this matter, I do not think it has been resolved satisfactorily. I think that the best thing would be for me to withdraw this amendment, and perhaps we could liaise with my noble friend before Third Reading in order to resolve this matter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Duty to reclassify roads used as public paths]:
6.34 p.m.
Viscount Hanworth Viscount Hanworth moved Amendment 173SCBA:
Page 36, line 37, leave out ("three") and insert ("two").
The noble Viscount said: My Lords, I think it would be for the convenience of the House if, in moving this amendment, I spoke also to the next three amendments and to Amendment No. 173SCDA. I can do all that very briefly. These amendments are designed to simplify and clarify the procedure contained in Clause 42 for the reclassification of roads used as public paths. As at present drafted, Clause 42 allows for roads used as public paths to be reclassified as footpaths if bridleway rights have been shown not to exist. My amendments mean that public paths would automatically be reclassified as bridleways unless vehicular rights can be shown to exist, but would only be classified as a footpath under the provisions of Clause 41. This is a considerable simplification of the Bill as it stands. I beg to move.
Lord Digby: My Lords, when I started looking at rights of way I always thought that if there was a bridleway it was as good as having a footpath from the walkers' point of view, but of course it is not. If it is a footpath it should be classified as such because a bridleway can get very muddy if used by a lot of horses and I think that the footpath should be left in.
Lord Bellwin: My Lords, I indicated, I think in response to Amendment No. 173SC, that I regard the reclassification of roads used as public paths within the context of Clause 41 as somewhat illogical, and perhaps the most sensible and practical arrangement is to keep proposals resulting from the reclassification exercise apart from proposals arising from the normal day-to-day review of definitive maps. For that reason, I am afraid that I cannot support the proposal. The point raised by my noble friend confirms that there is some blurring in this area, if I may put it that way, and what we are trying to do in the Bill is to get as much clarifica
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tion as possible. On this particular point we should not be able to accept it for the reasons given, but again it is not with any great happiness that I say that.
Viscount Hanworth: My Lords, if my understanding is correct—that is, that a bridleway automatically includes the rights of a footpath—I think that that answers part of the question that was raised. I shall not waste the time of the House as the Minister does not agree with this, but shall simply ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 173SCBB, 173SCBC and 173SCBD not moved.]
Lord Monk Bretton Lord Monk Bretton moved Amendment No. 173SCC:
Page 37, line 9, at end insert—
("(d) before showing any road used as a public path as a byway 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 noble Lord said: My Lords, I spoke to this amendment in moving Amendment No. 173SCA, and in moving it, I should like to say a word by way of reply to my noble friend on the Front Bench. This amendment puts back into the Bill the provision to take account of the suitability of the way of reclassifying a road used as a public path, as was done in the 1968 Act. I understand the objection that there was a lack of uniformity in interpretation of the old arrangement, but the question arises whether it is nevertheless worthwhile to endeavour to get over this by issuing a circular in order to overcome that lack of conformity in interpretation. I believe that there are grounds for thinking that it might be worth further thought, first, because it would be better than having to get a Road Traffic Act order if vehicles really have to be stopped on a path which becomes unsuitable or will become unsuitable very quickly.
Another aspect of the matter is that, if the question was dealt with all in one in this way, the map would simply say "bridleway" if vehicles were stopped, and there would then be no further doubt in the mind of anyone who looked at the map; they would see "bridleway", and that would mean quite definitely that there was no vehicular use. If it is not done in that way and a road traffic order has to be obtained, it will not be clear from looking at the map whether that has been done or not. I think that that is a point of considerable practical importance. I just wanted to make those points, but I do not wish to press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 173SCD and 173SCDA not moved.]
Lord Monk Bretton Lord Monk Bretton moved Amendment No. 173SCE:
Page 37, line 28, at end insert—
("(8) Where a surveying authority have undertaken a special review under the Countryside Act 1968, and a way formerly shown as a road used as a public path has been reclassified as a footpath or bridleway then public vehicular rights will thereby be extinguished").
The Deputy Speaker: My Lords, there is a misprint in this amendment: it should read "page 37, line 29".
Lord Stanley of Alderley: My Lords, before my noble friend makes up his mind what he wishes to do with this amendment, I must say to my noble friend on the Front Bench that I really cannot quite accept his argument. It does seem that this falls in with all the principles of this side of the House, in that it would cut down unnecessary bureaucracy. All we are asking here is that the work which has been done by the local authority to reclassify should not now have to be done once again. But I leave it to my noble friend Lord Monk Bretton to decide what action he will take.
Lord Monk Bretton: My Lords, I spoke to this amendment with the other two amendments. Just to remind your Lordships, it concerns the extinguishment of vehicular rights on roads used as public paths reclassiffied under the 1968 Act. I am most grateful for the support that I received from noble Lords. I think, in view of this, that I should prefer to press this amendment.
Viscount Massereene and Ferrard: My Lords, may I ask my noble friend a conundrum? I have a drove road in Scotland which goes right across the hills and which used to be used quite a lot. Can my noble friend tell me what is the position of a drove road under this Bill? I have not seen it mentioned in this Bill at all. Does it come into the Bill? It is a road where you drive cattle or sheep. Is it a right of way, is it a footpath, is it a road? Can you ride on it?
Lord Bellwin: My Lords, as far as I am aware, it does not come within the Bill, and I certainly have not the faintest idea what a drove road is.
Viscount Thurso: My Lords, I think it is a piece of hard ground crossing a bog.
On Question, amendment negatived.
Schedule 12 [Procedure in connection with certain orders under Part III]:
Lord Bellwin Lord Bellwin moved Amendment No. 173SCEA:
Page 78, line 40, leave out ("in") and insert ("under").
The noble Lord said: My Lords, on this occasion I wish to speak to a series of amendments, Nos. 173SCEA, 173SCEB, 173SCEC, 173SCED, 173SCGC, 173SCHA, 173SCHB, 174ZBD, 174ZBM, 174ZBN, 175D, 175K, and 180BA. Your Lordships will doubtless recollect the undertaking I gave in Committee as to Government amendments to give effect to the alternative procedure recommended by Michael Spicer's informal Rights of Way Committee for publicising definitive map and public path orders. The principal objective of the revised procedure is to dispense with the requirement to publish notices in the London Gazette, thus reducing the expenditure incurred by local authorities in publicising orders.
The amendments concentrate on those aspects of the Committee's proposals which are directly concerned with publicity. Those features which in our view are incidental to publicity or do not necessarily provide
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an alternative to the London Gazette, such as the free distribution of copies of published orders to selected organisations or the posting of a plan with the site notices if practicable, have not been included. Nevertheless, authorities will be recommended to adopt these practices in any post-enactment guidance published. I beg to move.
Lord Melchett: My Lords, as far as they go I certainly warmly welcome this long package of amendments, and am grateful to the Government for them. As I understand it, the Government have left out several of the Spicer Committee's recommendations which the noble Lord said at Committee stage he hoped to implement in this package of amendments. I am not on the Spicer Committee so I am not sure about this, but it may be that the noble Lord can confirm whether I am right if I list the things which I think have been left out which were agreed by the local authority representatives together with everyone else on the Spicer Committee. There are four points which I think have been omitted and which I think were agreed, but I am really asking for confirmation.
The first is the requirement for authorities to sell copies of orders to the public. I think that might be covered if the noble Lord is going to accept a later amendment of mine; at least the principle would be covered. I understand that was agreed by everybody on the Spicer Committee, including the local authority representatives. The second point is a procedure whereby individuals and organisations could have copies of notices sent to them by the authorities making the orders on prior payment. This is really much the same point. They would have a sort of standing order arrangement so that, for the convenience of everyone, people could get these things clearly. There is no question of cost to the local authorities because there would be a payment for them. That would have met the problem that those who currently use the London Gazette, which they can order regularly, would have been able to follow the same procedure.
The third thing which seems to have been left out is the requirement for the notice placed on a path to be accompanied by a plan showing the effect of the order. As I understand it, the amendments simply require a notice and not a plan. Obviously, for anybody seeing the notice it is quite a major thing to have the plan there as well. The fourth thing is the requirement for a copy of the order and the plan to be available for public inspection at a place within five miles of the path concerned, or if this is not practicable at the nearest office of the district council concerned.
I am sure it is not intentional, but four of the things which the Spicer Committee agreed on, all of which would have helped the public and those other people concerned to know what was going on, seem to have been omitted from the amendments listed. I hope the Government will be bringing forward some more amendments and will look at the point, if they are not able to answer it now.
Lord Bellwin: My Lords, if I may reply by leave of the House, certainly one would want to have a look. I know of no specific reason why they were omitted but there would be no difficulty, unless there were

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some real objection to their being brought in. If so, I will be in touch with the noble Lord. I hope that that will not prevent his agreeing to what we are proposing in these amendments.
On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 173SCEB:
Page 78, line 42, leave out ("the London Gazette and also").
On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 173SCEC:
Page 79, line 1, leave out from ("on") to end of line 4 and insert("—

(i) every owner and occupier of any of that land;

(ii) every local authority whose area includes any of that land; and

(iii) such other bodies as may be prescribed or as the authority may consider appropriate; and

(c) by causing a copy of the notice to be displayed in a prominent position—

(i) at the ends of so much of any way as is affected by the draft order; and

(ii) at such other places as the authority may consider appropriate.").

On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 173SCED:
Page 79, line 9, after ("(b)") insert ("(i)").
On Question, amendment agreed to.
6.51 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173SCEE:
Page 79, line 28, after ("inquiry") insert ("or hearing").
The noble Lord said: My Lords, this is really the most important amendment, or set of amendments, with which we shall deal in this part of the Bill at the Report stage, given that the other matter of some substance and controversy, the question of bulls on public footpaths, we have not returned to after the amendment on that matter was defeated in Committee. With this amendment I have a very long list of other amendments to which I should like to speak, and I apologise for the awkward lettering. The list is as follows: Amendments Nos. 173SCFA, SCGA, and SCGB; Amendments Nos. 174ZBA, ZBB, ZBC, ZBF, ZBG, ZBH, ZBJ, ZBK, ZBL, ZBP, ZCA, ZCB, ZCC and ZCD; Amendments Nos. 175A, B, C, E, F, G, H and L; and, finally, Amendment No. 176D.
These amendments deal with the question of who should have the final say when there is a dispute about a public path and definitive map amendment order. The Government propose to transfer jurisdiction of this matter to local authorities. I think that there is a unanimous view inside your Lordships' House, and certainly outside the House, that this is really an outrage to every principle of natural justice and is not something which should be accepted. I shall explain why I think that it is an outrage to every principle of natural justice in a moment.
These amendments would keep jurisdiction with the Secretary of State, rather than transfer it to local authorities. But Amendment No. 176D—the very last one—gives the Secretary of State power to delegate his jurisdiction to an inspector, so that if this power were invoked the only practical difference between the
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system envisaged by what the Government have proposed in the Bill and the system which would result from these amendments being accepted is that the inspector who will hear a public inquiry, and who is drawn from a panel appointed by the Secretary of State, will, instead of writing a report making recommendations to a local authority for them to accept or reject as they please, make a decision. That is the system which applies in the majority of planning appeals and which, as I understand it, the current Secretary of State for the Environment would like to see even more widely used in that field—in other words, in planning appeals. It seems to me that if it is good enough for planning appeals it should be good enough to meet this problem.
It is supported by the evidence contained in the decision letters on public path orders sent to the Ramblers Association by the Department of the Environment during 1980. There were 207 in all, of which 138 involved an inspector conducting an inquiry or hearing; the remaining 69 being dealt with by written representations. Of the 138 that were dealt with by inspectors, the Secretary of State refused to accept only 14. So out of 138 the Secretary of State was happy with all but 14. In other words, the inspectors were coming to decisions which, broadly and generally—in fact, in the overwhelming majority of cases—were acceptable to the Secretary of State, and it would seem quite reasonable for the matter to be left with them from his point of view. Of the 14 that were not accepted, several of them were refused on legal grounds as under the present arrangements inspectors are not properly briefed on legal issues and are instructed to refer them to the department. Clearly, if these amendments went through it would be necessary for the inspector to be given the legal advice that would avoid those problems. Does the noble Lord wish to intervene?
Lord Stanley of Alderley: My Lords, I am getting in a bit of a muddle. Is the noble Lord, Lord Melchett, also speaking to Amendment No. 174YA? He spoke rather quickly, and I do not quite understand whether or not he is speaking to that amendment.
Lord Melchett: No, my Lords, I am not speaking to Amendment No. 174YA. That amendment is similar, but it deals with a different point; in other words, it deals with the rights of appeal, but in quite different circumstances. I think the same arguments apply, and that if this amendment is accepted that one would automatically follow. However, this amendment deals with a rather wider question.
In replying to the Committee stage debate for the Government the noble Lord, Lord Bellwin, said on 17th February at col. 663:
"I should prefer to put the thrust of the argument"—
that is, the Government's argument—
"on the point I made about the responsibilities and obligations of local authorities. They have obligations in this matter. They have to answer and to live with the decisions that they make".
I accept that, but I simply do not believe that it is right for a local authority—which is involved in a decision; which may have originated the proposals; which then argues for those proposals at an inquiry or any subsequent discussion; which then makes an

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order and which then defends the decision to make an order against the objections at the inquiry held by an inspector drawn from the Secretary of State's panel—to be perfectly free, unconstrained by anything in the Bill, to override the inspector, whatever decision the inspector has come to, and decide in favour of its own original proposal. That is why I say that, as the Bill stands, this is an outrage to natural justice.
In fact, what the local authority is being asked to do is, first, to be the arresting officer—it makes the original proposal. Then it is being asked to be the prosecution—it is being asked to advocate the original proposal. Then it is being asked to be the judge and jury in the matter at the end of the day. That is an affront to natural justice; it cannot be right. It has received widespread opposition from many different interests, including, as I understand it, some local authorities, and I hope that the Government will now accept this set of amendments. I beg to move.
Lord Bellwin: My Lords, it seems to me that there are two basic questions which arise in this matter. The first is: are local authorities the appropriate level of government to take decisions on such matters; and, secondly, if so, are they capable of discharging that responsibility fairly and efficiently? We had a long debate on these questions in Committee, and I do not propose to rehearse the same arguments at length again. But let us for a moment consider what we are talking about. We are talking about two things: first, definitive maps of public rights of way; and, secondly, public path orders.
Let us look first at definitive maps. This is no more than a record, a catalogue of what exists, which needs to be brought up-to-date, corrected and kept up-to-date. What, one may think, could be simpler? We have learned that it is not as simple as all that; that the establishment of what exists is not always easy; that there is scope for conflicting views which may be difficult to reconcile. But, in essence, what we have is a quest for facts, based on evidence which needs to be examined closely. What we need, therefore, is a forum where this evidence can be sifted, presided over by a person who is independent of the parties who may be bringing forward the evidence. I think that so far we are in agreement. But we are providing this and, as I say, so far there is no difficulty.
However, the problem is what should happen next? Should this person take the final decision? Should he report to the Secretary of State or should he report to the local authority? I find the first option unacceptable. It seems to be generally agreed that the person to conduct inquiries should be the inspector from the department—there is no difficulty there. But he is, after all, an official and I consider that the suggestion that, as an individual, he should be placed in a position of jurisdiction over an elected body like a county council cannot be right.
Therefore, the choice rests between reporting to and final adjudication by the Secretary of State and the local authority. I put it to your Lordships that, in the light of what is involved here, the justification for involving the Secretary of State is very slim indeed. What we are being asked to accept is that each and every objection made to every definitive map order is an issue of such importance as to warrant the attention
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of the Secretary of State. I do not minimise the importance of rights of way when I say that I find that suggestion difficult to accept.
Therefore, we are thrown on to the third solution; that of requiring the inspector to report to the local authority. Again, bearing in mind the issues involved—that all we are engaged in is a search for facts—I find that solution not unreasonable.
I turn to public path orders—creation, diversion and extinguishment orders. What we have to ask ourselves now, is whether there is sufficient distinction between these and definitive map orders to justify treating them differently. I acknowledge that now we are no longer talking about a record or a catalogue. The issue now is whether a path should be created, diverted or stopped-up. We are now no longer seeking to establish facts; we are concerned with the merits of doing something, something which it may be in the interests of a local authority to promote. So is the local authority the right decision-maker in this case? The answer to this question I suggest hinges largely on the answer to the second question I asked at the beginning; namely, is the local authority capable of discharging the responsibility fairly and efficiently?
Much has been made of the fact that the local authority will be taking a final decision on something that they themselves have initiated. The judge and jury aspect of it has, of course, given cause for not unreasonable concern. But this is not a situation which is unknown when the Secretary of State himself initiates a proposal the fate of which he will ultimately decide. However, it is usually accepted by the majority of people that there may be cases where the Secretary of State has to do this and where it is not unreasonable that he should do so. In such a circumstance it could be said that he is judge and jury in his own cause.
However, when we suggest that the local authority should have the same privilege in relation to public path orders, there is objection. But why? It can only be that many consider the answer to my question whether the local authority is capable of doing the job fairly and efficiently to be, no. It can only be that people would mistrust the impartiality and efficiency of the local authority and, indeed, there is evidence—and I have to say that in our correspondence there is such concern—that that is the case, and particularly so on the point of impartiality; I make no bones about that. But we must decide whether this lack of trust is justified.
To judge from some of the correspondence, one might think that local authorities are governed entirely by farmers who cannot wait to seize this power so that they can close all the footpaths which cross their land and which they find a nuisance; and that they will not bother to declare an interest while they are doing so. The situation is simply this, and here I conclude because we can talk at length about it and at the end of the day we must come to a view: we had long discussions in Committee on this. It will be open to anyone to object to any proposals which an authority may make. Those objections will be heard and carefully considered by an inspector appointed by the Secretary of State. The findings will ultimately be published, with all the implications which will flow from that and from the knowledge that the findings will be published. The authority will come to a decision, taking

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those findings into account.
For myself, I have enough faith in local government and those who work in it to say that I firmly believe that such an order of procedure will lead to no less fairness in reaching decisions than if it is to be made obligatory for the Secretary of State to be the final arbiter. I invite your Lordships to share that faith with me.
The Earl of Onslow: My Lords, as a co-mover of this amendment I let my name go forward on it because in Clandon in Surrey, where I live, there was an old footpath which, after much argument, the local authority wanted to divert. I would hasten to add that I think that Surrey County Council is a good and conscientious local authority. Of course, people have arguments with it, but on the whole it is a good and conscientious local authority.
That county council was taken to the High Court by Send Parish Council to get a writ of mandamus and it was told to carry out its duties according to the law, with some fairly scathing comments on the part of the judge in the High Court. It seems to me that local authorities ought not to be able to be judge and jury in their own case. When my noble friend Lord Bellwin says that for the inspector, who is not elected, to have the final say is wrong, I would point out that surely the High Court judge who in this case ruled on the writ of mandamus was also not elected. Therefore, according to my noble friend's argument, perhaps that also would be wrong.
That is all I have to say. It seems to me to be a fairly strong argument for maintaining the ultimate power of the Secretary of State. Incidentally, the Secretary of State being judge and jury in his own case must, I suppose, be acceptable; it is not ideally acceptable, but let us not add extra cases where one is not really quite good enough.
Lord Fletcher: My Lords, as my noble friend on the Front Bench said, this amendment and this series of amendments raise a very vital question: that of justice. It is important that justice should not only be done, but should be seen to be done. The Minister posed this question, which is quite a fair question: are local authorities capable of doing the job fairly and efficiently? My answer to that is, no. Some local authorities may be capable of doing it; other local authorities are not capable of doing it. I do not think that the public and the parties involved in these matters will have confidence in the complete impartiality of some local authorities.
It is not use saying that they are elected bodies. These questions involve judicial decisions; local authorities are not experts in arriving at impartial judicial decisions. The inspectors appointed from a panel chosen by the Secretary of State have experience in weighing evidence and reaching impartial judgments on matters of fact. It seems to me to be totally wrong that we should legislate to enable a local authority to ignore and oppose a recommendation made by one of Her Majesty's inspectors so appointed.
The Minister says that there is an analogy by reason of the fact that sometimes a Secretary of State must be judge and jury in his own cause. But, as has been pointed out, in those cases the citizen has a remedy;
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that is, the remedy of going to the courts and asking for a writ of mandamus. It is rarely used, but it is a very valuable reserve power. It could be said that a citizen has the same right in the case of a decision by a local authority, but surely it is not fair to put the citizen into that situation. Surely the right course is to ensure that, when there are controversial decisions, there should be some impartial judge to decide on the merits, and that the local authority, as one of the contestants, should not have the final right to a decision or right of veto. It seems to me that there is such a vital principle at issue in this case that I hope my noble friends will support these amendments in the Lobby.
7.10 p.m.
Lord Stanley of Alderley: My Lords, before my noble friend replies, I spoke to this at Committee stage and I must support this amendment for all the reasons I supported similar amendments on local government land planning. I would just say that in the article my noble friend quoted which appeared in The Times today, I must take exception to it. So far as I am concerned, The Times is quite entitled to its opinion, but it must try to report factually, and on this occasion it stated that the National Farmers' Union has been against this, but the National Farmers' Union has never been against it. Indeed, it was in the National Farmers' Union's brief.
Lord Avebury: My Lords, I hope that it will not go on the record that those of us who support the amendment are in any way trying to question or undermine the integrity of local authorities. That is not our objective at all. In insisting that this goes forward to a Division we are not saying that local authorities are likely to act as the noble Lord, Lord Bellwin, said, unfairly, or irresponsibly or, inefficiently. What we are saying is that there may be genuine differences of opinion on the merits of these proposals which we are not happy about leaving to the local authorities, as the originators of those proposals, to be in the last position to decide. There is no way in which we can conceal the difference of opinion which exists here, and we do believe there should be some way in which these matters can be tested by someone other than those who originally made the decision.
Lord Teviot: My Lords, I too spoke on the Committee stage and I just wish to mention one point, as practically every other point has been covered. The only relevant point which I believe has been left out at this stage and which could be mentioned is about the county councils and these footpaths, which are just as much a part of the Queen's highway as any other road, and I support this amendment. Paths go from one county council to another. I think that is a relevant point and one that should be mentioned before your Lordships decide which way to cast your votes.
Lord Melchett: My Lords, I believe it is the feeling of this House that we should come to a decision. May I echo what the noble Lord, Lord Avebury, has said; there is nothing, among those of us supporting this measure, critical of local authorities or their elected representatives. Just as it would not be critical of the police to say that it would be wrong for a police

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officer to arrest somebody and then to act as the judge and jury, and for the police officer himself to sentence the person, it seems to me to be no more critical of a local authority to say that it should be placed in that position by the Government. So far as I can gather, this view seems to be shared by at least some local authorities. Southwark Council has written to me saying that they do not consider this power should be given to local authorities, and I understand that Hampshire, Devon and Wiltshire county councils are also a little uncertain in their attitudes to the Government proposals.
I believe this is an embarrassment to local authorities. They are being placed in an impossible position by the Government. The noble Lord, Lord Bellwin, said that the inspector would be looking at questions of fact. So the inspector is; the inspector will be finding on questions of fact and the Government will then say that a local authority can simply overrule that if they wish. This to me seems to be an outrage, and I hope this House will pass these amendments.
7.13 p.m.
On Question, Whether the said amendment (No. 173SCEE) shall be agreed to?
Their Lordships divided: Contents 70; Not-Contents 60.

CONTENTS

Airedale, L.

Loudoun, C.

Avebury, L.

McGregor of Durris, L.

Birk, B.

Melchett, L.

Boston, L.

Peart, L.

Collison, L.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Davies of Leek, L.

Ponsonby of Shulbrede, L. [Teller.]

Fletcher, L.

Goronwy-Roberts, L.

Ross of Marnock, L.

Greenwood of Rossendale, L.

Sandford, L.

Hall, V.

Seear, B.

Hampton, L.

Spens, L.

Hanworth, V.

Stanley of Alderley, L.

Houghton of Sowerby, L.

Stone, L.

Irving of Dartford, L.

Taylor of Gryfe, L.

Jeger, B.

Thurso, V.

Kilmarnock, L.

Underhill, L.

Kinloss, Ly.

Wells-Pestell, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

White, B.

Wynne-Jones, L.

NOT-CONTENTS

Airey of Abingdon, B.

Killearn, L.

Allerton, L.

Long, V.

Avon, E.

Lyell, L.

Balerno, L.

Mackay of Clashfern, L.

Bellwin, L.

Macleod of Borve, B.

Belstead, L.

Mansfield, E.

Bridgeman, V.

Margadale, L.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Burton, L.

Middleton, L.

Campbell of Croy, L.

Moyne, L.

Cullen of Ashbourne, L.

Murton of Lindisfarne, L.

de Clifford, L.

Reigate, L.

Denham, L. [Teller.]

Renton, L.

Digby, L.

Ridley, V.

Drumalbyn, L.

Romney, E.

Eccles, V.

St. Just, L.

Elliot of Harwood, B.

Sandys, L. [Teller.]

Ferrers, E.

Savile, L.

Gridley, L.

Skelmersdale, L.

Hailsham of Saint Marylebone, L.

Strathclyde, L.

Swinton, E.

Halifax, E.

Tranmire, L.

Hemphill, L.

Trenchard, V.

Holderness, L.

Trumpington, B.

Hornsby-Smith, B.

Vaux of Harrowden, L.

Hylton-Foster, B.

Vickers, B.

Inglewood, L.

Waldegrave, E.

Kemsley, V.

On Question, amendments agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.
The Earl of Avon: My Lords, if it is for the convenience of the House, I beg to move that we adjourn further consideration of the Wildlife and Countryside Bill until 10 minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.

European Assembly Elections Bill
Read 3a, and passed.

Trees (Replanting and Replacement) Bill [H.L.]
7.21 p.m.
Lord Somers: My Lords, I beg to move that this Bill be now read a third time.
Moved, that the Bill be now read 3a.—(Lord Somers.)
Lord Kilbracken: My Lords, before the vote is taken I should like to say a few words on this old favourite as it completes its second passage through your Lordships' House. I think that someone—and I take that duty—should congratulate the noble Lord, Lord Somers, on the great perseverance he has shown in piloting it through your Lordships' House on two different occasions. There is only one criticism that I want to make. I spoke on all stages when it was first before your Lordships, and in its present career I spoke at Second Reading but was unable to be present at Committee stage or at Report stage. I therefore was rather surprised when I received my Hansard to find that the schedule, which had been deleted from the Bill on an amendment of mine at Committee stage when it was before your Lordships before, had now been reintroduced as an amendment by the noble Lord himself and was now forming part of the Bill, as it does today.

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I think this is a great pity. I have studied the species on the schedule with care and it seems to me almost as though the species included have been chosen on a capricious basis. There are common species and rare species; conifers and hardwoods; the sweet chestnut is included but the horse chestnut is not. The wild cherry is there but not the ornamental cherry, nor the almond, nor any other of the flowering trees which are so often used by local authorities in avenues in towns and cities. I very much preferred the Bill as it was when it finished its first passage through your Lordships' House when all species were covered. No matter what species was cut down by a local authority it had to be replanted, although as it then was the local authority could plant any species it liked whereas now it must plant any of the species on this list.
As I understand it, a walnut can be cut down and replaced with an ash, but it may not be replaced by some tree not on this list. I should have preferred to have left that to the local authority, but to insist that any tree, no matter of what species, had to be replaced by two others. It is too late to do anything about it now even if that was the wish of your Lordships' House, and my purpose in speaking these few words tonight is in the hope that possibly they may fall to the attention of a Member of another place who may think about what I have said and propose some action along these lines. Be that as it may, I hope that it finds time in another place; that it has a successful passage through that House, and eventually reaches the statute book.
Viscount Ridley: My Lords, I should apologise because I have been unable to take part in any of the debates on this Bill. As one who is very interested in trees—and indeed this very morning I was planting trees on behalf of my own local authority at home, in a snowstorm I might add—and who has taken a keen interest in the progress of this Bill, I regret that I have not been able to join in the detail of it. As your Lordships probably know, I am concerned in the affairs of the Association of County Councils who, I am afraid I have to say, do not really like this Bill. Although they would not feel that it is of major importance, it makes the assumption that local authorities do not like planting trees and therefore have to be compelled to do so by Parliament, which is a wrong assumption because they plant a great many trees—far more than ever they would need to do under this little Bill. They do not feel that it is right that Parliament should interfere in this.
Secondly, this is not the moment when we should be adding more duties to local authorities and more bureaucracy in rendering returns, and all those other matters. It should be safely, and can be safely left in my opinion, to the local authorities and the locally elected members. They have a very good reputation indeed for planting trees, and I think more trees are planted by local authorities than by anybody else at the moment. The other thing I find difficult to understand—and I was not at the other stages—and the noble Lord, Lord Kilbracken, has already mentioned it, is this schedule. It includes a lot of alien species, some of which would have been an offence under Clause 13
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of the Wildlife and Countryside Bill had we not removed it last week. But then every local authority might have been guilty of an offence by planting a cupressus tree, for instance, which is not native to Britain.
What is worse in my opinion is that it leaves out quite a lot of species and trees which are familiar in the British landscape and which are planted very widely indeed, and some of which are our own native species, of which we have already 34 in this country. Some of them are not particularly valuable, but what we have should not in any way be restricted by the use of this schedule. I hope very much, as the noble Lord, Lord Kilbracken, has said, that in another place the schedule can be sufficiently amended to include other species if it is to go forward.
I only quote thorns, maples, sycamores, horse chestnuts, our only native conifer the Scots pine, willows of all species, poplars other than the aspen, of which there are a great many valuable ornamental species—I could go on all night about this—as well as a lot more introduced species commonly planted like, for example, nothofagus, the South American beech, which is widely thought of as being a very good town tree and valuable for planting in hedgerows, et cetera. I hope I have said enough to persuade the House that, while the Bill may be laudable in intent, it should not go too far, although I realise that the noble Lord, Lord Somers, has spent a lot of time on it. Although I do not oppose it, I cannot wish it a very fair wind.
Lord Somers: My Lords, I feel I must say a few words in reply. The noble Lord, Lord Kilbracken, was kind enough to tell me he was going to make the remarks he did. As for the presence of the schedule, I reinserted it on official advice. The noble Lord must realise that it narrows the application of the measure; without it, the regulations contained in the Bill would apply to every tree in a local authority's area. As it is, they are not forced to do anything about trees except those contained in the schedule. As for the nature of the schedule, the main object of the Bill in the first place was to preserve hardwood, slow growing, trees, of which local authorities would not be likely to plant many; because they are so slow growing they would never see the result. They are much more likely to plant trees which will reach a reasonable maturity within a few years. Further, hardwood is practically impossible to obtain in this country today, so it is high time we saw to it that the supply of hardwood does not shrink any further. Those were the two main objects of the Bill and I must tell the noble Lord that the wild cherry, in which I have recently been working, is very hard.
Lord Kilbracken: My Lords, most of the species in the schedule are hardwoods. In view of what the noble Lord, Lord Somers, has said, it is rather strange that nearly half the species on the list are not hardwoods but softwoods. Two of the others, the aspen and silver birch in particular, are extremely fast-growing species. In other words, they are neither all hardwoods nor all slow-growing trees. As I said, it seems to be a capricious choice.
Lord Somers: My Lords, the silver birch is a much faster growing tree but its wood is widely used and I should have thought it was not one that was likely

585
to be replanted by a council. Be that as it may, I have explained the reason for the schedule and I hope it will be accepted. Having seen the number of Private Members' Bills that have been accepted and become law, I do not think your Lordships need have any fear of this one ever reaching the statute book. On the other hand, I suggest it would be a good thing to get the subject an airing in the other place.
On Question, Bill read 3a.
Lord Somers: My Lords, I beg to move that this Bill do now pass. I wish at this stage to record my grateful thanks to all those who have advised and given me help with the Bill.
Moved, That the Bill do now pass.—(Lord Somers.)
Bill passed, and sent to the Commons.
Lord Sandys: My Lords, I beg to move that this House do now adjourn during pleasure until 8.10 p.m., and reassemble at that time for further consideration on Report of the Wildlife and Countryside Bill.
Moved accordingly and, on Question, Motion agreed to.
[The Sitting was suspended from 7.35 until 8.10 p.m.].

Wildlife and Countryside Bill [H.L.]
Further considered on Report on Schedule 12.
Lord Bellwin Lord Bellwin moved Amendment No. 173SCEF:
Page 79, line 28, at end insert—
("Representations or objections made with respect to abandoned surveys or reviews
2A.—(1) This paragraph applies where a survey begun under sections 27 to 32 of the 1949 Act, or a review begun under section 33 of that Act, is abandoned after a draft map and statement have been prepared.
(2) If a draft order modifies the definitive map and statement so as—

(a) to show any particulars shown in the draft map and statement but not in the definitive map and statement; or

(b) to omit any particulars shown in the definitive map and statement but not in the draft map and statement,

any representation or objection duly made with respect to the showing in or omission from the draft map and statement of those particulars shall be treated for the purposes of paragraphs 3 and 4 as a representation or objection duly made with respect to the corresponding modifications made by the draft order.
Severance of Orders
2B. Where representations or objections duly made and not withdrawn relate to some but not all of the modifications made by a draft order, paragraphs 3, 4 and 5 shall have effect as if not one but two draft orders had been prepared under paragraph 2—

(a) the one comprising the modifications to which the representations or objections relate; and

(b) the other comprising the remaining modifications.").

The noble Lord said: My Lords, I said in Committee that in the light of the views expressed by the noble Lord, Lord Fletcher, and the noble Viscount, Lord Hanworth, on the Government's transitional arrangements for winding up outstanding surveys and reviews, I would consider further whether anything could be done to save the objections to proposals that would lapse on the abandonment of a survey or review. Your
586
Lordships may recollect that my noble friend Lord Ridley had down an amendment which attempted to deal with the problem, but which in the event was not moved.
We recognise the serious consequences of abandonment, and a great deal of thought and consideration has been given to ways and means of safeguarding the interests of affected objectors. Our proposed solution, as embodied in the first part of the amendment, is that whenever a proposal which would lapse on abandonment is revived by means of a definitive map order under Clauses 41 or 42, authorities would be required to treat the objection or representation to the proposal as if it were with respect to the order.
The second part of the amendment refines the procedure for dealing with opposed definitives map orders. One of the distinct advantages of a definitive map review system, based on individual orders, is its inherent flexibility. It gives authorities the facility to choose, as circumstances require, between orders which cover a single proposal to amend the map and statement, or omnibus orders encompassing several proposals. In fact we expect omnibus orders to become an established feature of the new procedure.
The purpose of the amendment, which derives from one tabled by my noble friend Lord Ridley in Committee, which, incidentally, was not moved, but which the Government were prepared to consider, is to refine the present procedure for dealing with orders by enabling authorities, once the objection period had expired and all the objections and representations had been received, to treat the original draft omnibus order as two separate orders. Since the proposal accords with the philosophy behind the revision of the review procedures that definitive maps and statements should be kept continuously up-to-date, I trust that it will receive your Lordships' support. I beg to move.
Lord Fletcher: My Lords, the Minister has been very helpful and I am sure that he will not be surprised to know that I support the amendment, though I do not think it goes quite far enough, and I should like to explain to the Minister my reservations. I do not expect him to give an unqualified reply at the moment, but I would ask him to note my reservations and to give some thought to them, because I believe that in order to further the concession that he has in mind some additional revision is required.
Amendment No. 173SCEF, as it stands, makes certain provisions, which I welcome, for some of the circumstances in which a review has begun but has not been completed. The introductory words in 2A refer to where a review has begun and is abandoned, and the provision goes on to relate to certain steps that would follow.
That is satisfactory, but it does not cover the situation, with which I am concerned, where a review has taken place, but has not been completed, and where certain representations have been made to the local authority and passed on to the Minister suggesting, with evidence, that a particular footpath has been omitted from the map and ought to be included in it. As I read the Bill with the amendment, there is no provision as to what should happen during the transitory period. There is no provision that in those circumstances the local authority should be required, or

587
indeed that the Minister should be empowered, to proceed with the inquiry and consider the objections that have been raised to the non-inclusion in the draft map of a footpath which, it is represented, should be on the map.
As I read the amendment it does not cover that particular point. I think that the point would be covered if Amendment No. 173SD, to which we shall come later, is accepted, but of course I cannot anticipate what the Minister is to say with regard to that amendment. Therefore I thought it reasonable to make this point at this stage for the further consideration of the Minister.
Lord Melchett: My Lords, I should like to echo what my noble friend has said, and because I am echoing his points I shall be very brief. The amendment is of course welcome. It meets a point which was raised in at least two amendments at the Committee stage, but does not do so entirely. As I understand it, the amendment does not ensure that the authority would make an order even though it will now be able to. Secondly, the amendment does not, I understand, apply to the case where the authority failed to add a claimed right of way to the draft map and an objection was entered in an attempt to add the path; that is the point that my noble friend was making. So it seems to me that there is an important omission. As my noble friend said, perhaps when we come to Amendment No. 173SD the Government will accept it, and I believe that that would meet at least part of our objections to what the Government are proposing. However as this amendment stands, I think it is a small step in the right direction, but it certainly does not go all the way.
Lord Bellwin: My Lords, the noble Lords are looking for giant strides. I cannot make comment on what has been said, other than to say that we shall have a look at it. The amendment is presented in order to meet the points that were raised. If it transpires that there would be no difficulty in going the extra distance—if I may put it that way—that is asked for, then we shall look at that. I know that your Lordships will not expect me to say any more on this point at the moment. On the other point, concerning the amendment that is yet to come, had we been able to accept that amendment then I should have let the matter go, but for reasons that we shall explain when we come to it, we do not feel able to do so. That is why I say what I do say about this matter as it is.
Lord Melchett: My Lords, before the noble Lord sits down, may I say that I am grateful for the fact that he is to consider the point. May I ask him to write to my noble friend and myself letting us know the result of his consideration, and then we may not need to raise the matter at Third Reading?
Lord Bellwin: I shall do that, my Lords.
On Question, amendment agreed to.
8.18 p.m.
Lord Melchett Lord Melchett moved Amendment No. 173SCF:
Page 79, line 31, leave out ("with or").
The noble Lord said: My Lords, this amendment, too, was discussed at the Committee stage, on 17th February. In moving the amendment I wish to speak to Amendment No. 174ZBE at the same time. The purpose of Amendment No. l73SCF is to deny to order-making authorities the chance to modify unopposed orders. This is an important point, and when we discussed it at Committee stage the noble Lord, Lord Bellwin, said that the Government would like to think about it a little further. I argued for this proposal at the Committee stage, and I shall not repeat all that I then said, but I should like to remind your Lordships of the point with which we are concerned in this amendment.
The Bill makes a change in procedure from past practice, in that it allows authorities to modify unopposed orders, which has not been the case up until now. The amendments would change the Bill so that the existing position applied. As I said at the Committee stage, the problem here is that an authority could modify an order which has not been opposed in a way that would be totally unacceptable to those concerned, either the user groups or the landowner or farmer.
To take an example, it would be possible, as I understand the Bill, for the authority to make an order putting a path down the side of a field, across a lane and down the side of another field. That would not be opposed by the farmer, who might think it reasonable, or by the user group. It would then be possible, if there were no opposition, for it to come back to the authority, who would modify it and, say, put the path down the middle of the field because they thought that would be safer than to cross the lane. That would be unacceptable to the farmer, who would have opposed it had they originally proposed that and who would oppose it if he could but who cannot because, as I understand the Bill, it would be too late. I cannot believe that this is what the Government intend. It is not right. I hope that the Government will accept these amendments, which would return the situation to that which operates now and which, as I understand it, gives rise to no problems. I beg to move.
Lord Bellwin: My Lords, I understand the noble Lord's concern over this issue since paragraph 3 of Schedule 12 read in isolation appears to allow a local authority to modify an unopposed order at will and thereby unfairly prejudice someone's interest. But looking at it carefully I am satisfied (and I think the noble Lord will also be satisfied) that this is not the case. If the noble Lord will turn his attention to paragraph 5 he will see that notwithstanding what is said in paragraph 3 there are restrictions on an authority's power to make orders with modifications. These restrictions prevent an authority from modifying an order with the result that land not affected by the draft order is affected; they prevent an authority from showing any way not shown on the draft order or vice versa; and they prevent an authority from changing the description of a way shown in the draft order without first publicising the fact and giving people an opportunity to object and thus set the public inquiry machinery in motion.
Lord Melchett: My Lords, I am sorry to interrupt but I am trying to follow what the noble Lord is saying.

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He drew my attention to a paragraph in Schedule 12. I am not sure which paragraph.
Lord Bellwin: My Lords, it was paragraph 5. The only modifications which an authority could make without publicity, therefore, are very minor ones about which they could reasonably expect no one to be concerned. I trust that in the light of that explanation the noble Lord will agree with me and feel able to withdraw the amendment.
Lord Avebury: My Lords, could the Minister explain what sort of amendments the local authority could make? He says that they are minor. I read what is said in paragraph 5; but one cannot understand from paragraph 5 why there should be any power to make the modifications mentioned in paragraph 2. If they are of such a minor nature, why should the power be there at all?
Lord Bellwin: My Lords, I cannot help the noble Lord on that at this stage. I trust the noble Lord, Lord Avebury, will see that the points I was making are valid in themselves regardless of the other points which he raised I will come back to those and give him some details of amendments so minor that it could be expected that no one would be concerned about them. I hope he agrees that the points made as to paragraph 5 are valid.
Lord Melchett: My Lords, I must say to the noble Lord that I have looked at paragraph 5. It says that the authority shall not make an order so as to affect land not affected by the draft order. I do not understand whether that means that you have to keep in the same field or that you cannot move a square inch either side of the original line. It makes an enormous difference to a farmer whether a path is in the middle or on the side of a field. In the normal usage of English, my first instinct would be that it must mean that you cannot take it into a different field. It sounds as if you might be able to move from one side of a field to another.
As we know, even if you can only move it about two feet that can have the most enormous consequences, as in the case which the noble Earl, Lord Onslow, quoted before dinner, in a different debate. Reading the judgment in that case concerning the Surrey County Council, somebody had built a swimming pool at the bottom of their garden and after the householders had finished it their gardens included land which was a public footpath. This pool adjutted onto the footpath for a foot or six inches. Matters of inches could be important. Changing a path by a few inches can, where a householder's garden is affected, be important. Does "the same land" mean that if you have it going down a certain line you cannot move it an inch in either direction? I think at (b) it is clearer. It is the first point which bothers me.
But there is another point, apart from that which deals with the general description of rights of way and the land which is affected. It does not deal with more detailed points of wording; but, as I said at Committee, some of the changes which might be made—I have not got examples—it is possible to see could lead to being wrongly drafted an order which, when published in
590
draft, had been correctly drafted. Those drafting points might invalidate the order or cause other problems. There is a great deal of expertise about this in a complicated area, but whether every local authority will have the same degree of expertise I am not sure. The scrutiny which draft orders are subject to by user groups is very important even when it gets to detailed drafts. Has the noble Lord anything more he wishes to say before I withdraw or press the amendment?
Lord Bellwin: My Lords, I should like to mention one point. Would the noble Lord not feel that, while there may be merit in the points he makes, the fact is that the authority is prevented from changing the description of a way shown without first publicising it? Does the fact that there must be publicity, which will give the people the opportunity to object and set the machinery of inquiry in motion, not cover the situation he describes?
Lord Melchett: My Lords, it does not. That is a misunderstanding. It says in paragraph 3:
"If no representations or objections are duly made, or if any so made are withdrawn, the authority may make the order with or without modifications".
They can make the order and not publicise it. They can make it with or without modification. That does not meet the point.
Lord Bellwin: My Lords, I should have thought that was subject to paragraph 5. The noble Lord quoted paragraph 3. I promise not to interrupt again.
Lord Melchett: Yes, my Lords, but that takes me back to the original way. What does paragraph 5(1)(a) mean by "land not affected by the draft order"? Where is the land not affected by the order? I hope the noble Lord might let me have an answer in writing to that. The other thing I do not think is dealt with (and I do not want to delay the House) is this. What about drafting errors? They can be very important. As I read paragraph 5, it does not stop an authority changing the drafting as widely as they wish. There is nothing about drafting here, and the detailed wording. That may not he of very much consequence from the land owner's or the farmer's point of view. However, it might be from the user's point of view if the drafting has changed the way that makes the whole order a nonsense, invalidates it or is going to lead to some celebrated case in the House of Lords in 20 years' time, as a lot of these seem to do eventually. Perhaps the noble Lord could look at those two points. I see that he is nodding. I am grateful for that assurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Melchett Lord Melchett moved Amendment No. 173SCFA:
Page 79, line 34, leave out paragraph 4 and insert—
("4.—(1) If any representation or objection duly made is not withdrawn the authority shall notify the Secretary of State who shall cause a local inquiry to be held, or afford to any person by whom any representation or objection has been duly made and not withdrawn, an opportunity of being heard by a person appointed by him for the purpose.
(2) After considering the report of the person appointed to hold the inquiry or to hear representations and objections, as the case may be, the Secretary of State may direct the authority to make the order with or without modifications and the

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authority shall as soon as may be thereafter make the order accordingly.").
The noble Lord said: My Lords, this amendment is consequential on the amendment on which we divided just before the dinner break. There is a long string of consequential amendments and, if it is convenient to the House, I shall move them formally and en bloc, where possible. I beg to move.
On Question, amendment agreed to.
Lord Melchett Lord Melchett moved Amendment No. 173SCG:
Page 80, line 6, leave out ("such notice as appears to them requisite") and insert ("notice in the manner specified in paragraph 2(2)").
The noble Lord said: My Lords, this is the amendment that we discussed in Committee and which received some support from noble Lords opposite. The noble Lord, Lord Stanley of Alderley, the noble Earl, Lord Caithness, the noble Lord, Lord Monk Bretton, and the noble Lord, Lord Raglan, had an amendment down which made almost the same point but in a different way.
This amendment would affect sub-paragraph (1) of paragraph 5 of Schedule 12. That sub-paragraph requires a surveying authority to give notice of any proposal to modify a draft definitive map amendment order in such a way as to apply to land not affected by the original order, to omit any way shown in the draft order, to include any way not shown in the draft order or to change the status of the way shown in the draft order; in other words, to change something from footpath to bridleway or byway, or vice-versa. That is all right so far as it goes except that the authority can choose how it gives that notice. The amendment affects that point. For example, it appears that the authority could, if they wished, not tell an owner or occupier that they were proposing to show as a byway open to all traffic, including motor vehicles, a way which is shown in the draft order as being only a footpath. In other words, it appears that if they have given the owner-occupier notice of the draft proposal saying that they are going to put a footpath across that field, they can then change that to being one of those terrible RUPPs without giving the owner-occupier any notice of the fact. Of course, had they given the owner or occupier notice of that fact, there would undoubtedly have been an objection raised. But that opportunity to object will have been by-passed—if that is the right way of putting it.
Alternatively, the authority might fail to keep the public fully informed of a proposal to show only half of the paths, for example, shown in a draft order, and leave the others out so they can modify it to that extent. It does not in any event seem to me that the discretion given by the Bill should be an unfettered one. This view was clearly shared by some noble Lords opposite who put an amendment down on the same point in Committee. Their amendment would have required an owner or occupier to have been notified of any proposed modification. This amendment requires the authority to give such a proposed modification the same publicity as the original order. In other words, it would give what noble Lords opposite wanted for owners and occupiers but would also ensure that the public receive the same publicity as they would have done in the original order.
This is something which so directly affects either the rights of an individual landowner or farmer or alternatively the rights of the public—and there is equal concern in this—that it should not be left to the discretion of the authority, which is the case in the Bill. There really ought to be a requirement for equal publicity to that given to the original order. Again, this was an amendment which the noble Lord, Lord Bellwin, said he would like to look at. I hope that his consideration has led him to agree that this is a desirable amendment. I beg to move.
Lord Bellwin: My Lords, I said in response to the identical amendment moved in Committee by the noble Baroness, Lady David, that I thought authorities should have the discretion to apply whatever publicity they considered suited the particular circumstances. I was certainly willing to have another look at this matter. I have done so. I fear, however, that I still do not believe that authorities in the exercise of this discretion would act in any way that would be detrimental to the interests of landowners, farmers, or the users of rights of way. If modifications are likely to adversely affect the interests of landowners, I am confident that they will be notified accordingly. Likewise, I would expect users to be notified whenever their interests are affected. All this would be in addition to publicity in the local press and notification to the original objectors to the order.
However, if it would satisfy the noble Lord—if it would be of help—I shall be prepared to undertake to include in any circular that is published on the implementation of the new system guidance on what would constitute acceptable publicity for modifications. I realise that that does not go as far as the noble Lord might have liked. We looked at the matter, as I said we would. It would take us as far as we need to go because I do not believe that there is a need for that. However, I recognise, to the extent that the noble Lord has made his point, that we should like to try to meet it and do so in that way.
Lord Melchett: My Lords, I am not happy with that answer. Let us take the case of a landowner or farmer. Everyone so far has attached the greatest importance to their being given personally a copy of the proposal. I do not think anyone has felt up to now that that is something which could be left to the discretion of anyone. A public right of way across a farm—and I speak as a farmer, a rambler and a walker—is an important matter. It can lead to considerable inconvenience from a farmer's point of view, and possibly some additional costs in fencing, stiles or what-have-you. From the user's point of view these are again very important matters. If the noble Lord is saying: "This seems sensible; we will put it in a circular" then something as important as this ought to be in the Bill.
The noble Lord, Lord Stanley of Alderley, moved an amendment to this effect, so far as the owners and occupiers are concerned, at the Committee stage. Therefore, there is widespread agreement that this is an important point. It ought to be in the Bill and the Government should accept that. Clearly, the noble Lord has gone some way to meet the point; but I do not see what the value of leaving it to the discretion is.

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Unless the noble Lord can help me with why it should not be in the Bill, if this is sensible and fair to all concerned, I think I should press the amendment.
8.40 p.m.
On Question, whether the said amendment (No. 173SCG) shall be agreed to?
Their Lordships divided: Content, 38; Not-Contents, 54.
8.49 p.m.
Lord Melchett Lord Melchett moved Amendments Nos. 173SCGA and 173SCGB:
Page 80, line 12, leave out from ("withdrawn") to end of line 15, and insert ("notify the Secretary of State and the provisions of paragraph 4 shall thereupon apply")
Page 80, line 17, leave out paragraph 6.
The noble Lord said: My Lords, I beg to move these two amendments together.
Lord Bellwin: My Lords, I am very glad to accept these amendments.
Lord Bellwin Lord Bellwin moved Amendment No. 173SCGC:
Page 80, line 38, leave out from ("given") to end of line 41 and insert ("—

(a) by publication in the manner required by paragraph 2(2)(a);

(b) by serving a like notice on any persons on whom notices were required to be served under paragraph 2(2)(b) or (3); and

(c) by causing like notices to be displayed in the like manner as the notices required to be displayed under paragraph 2(2)(c).").

The noble Lord said: My Lords, I have already spoken to this amendment, and I beg to move.
Lord Melchett Lord Melchett moved Amendment No. 173SCH:
Page 80, line 47, after ("of") insert ("publication of").
The noble Lord said: My Lords, this amendment affects the wording of something which was introduced at the Committee stage of the Bill. Therefore, unlike most of the other amendments, this is not something that we have been through already. The amendment would make the period which is needed run from the date of publication of a notice rather than from some other period. I shall not go into it at any greater length, in the hope that this is a straightforward amendment which the Government can accept. If not I should be happy to explain it in more detail. I beg to move.
Lord Bellwin: My Lords, I agree with the noble Lord that there is no apparent reason for differentiating between definitive map orders and public path orders as regards the commencement of the six-week period and the question of validity of the orders in the courts. I am pleased to accept this amendment.
Lord Bellwin Lord Bellwin moved Amendments Nos. 173SCHA and 173SCHB:
Page 81, line 12, leave out ("or a parish or community council") and insert ("a parish or community council or the parish meeting of a parish not having a separate parish council")
Page 81, line 14, at end insert—
("prescribed" means prescribed by regulations made by the Secretary of State.
(2) Regulations under this Schedule shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: My Lords, I have spoken to both these amendments already, and I beg to move.
Clause 43 [No further surveys or reviews under the 1949 Act]:
Lord Melchett Lord Melchett moved Amendment No. 173SD:
Page 37, line 35, leave out from first ("authority") to end of line 38 and insert ("and subject to subsections (1A) and (1B) below—

(a) decide to complete his determination of any outstanding objections or representations; or

(b) agree with the authority to transfer those objections and representations to the authority for determination.

(1A) Nothing in subsection (1) above shall cause either the Secretary of State or a surveying authority to take any further action after the commencement date on any objection or representation which relates to the reclassification of a road used as a public path or as to which the person who made the objection or representation has informed the Secretary of State or the surveying authority, as the case may be, that he agrees that no further action should be taken with regard to that objection or representation.
(1B) Where any objection or representation is transferred by the Secretary of State to a surveying authority under subsection (1) above, the authority shall determine the objection or representation as if it were an objection or representation to an order made under this Part, and paragraphs 4 to 9 of Schedule 12 shall thereupon apply.").
The noble Lord said: My Lords, with this amendment we return to something which my noble friend Lord Fletcher introduced at the Committee stage. The effect of this amendment is to require all the outstanding objections to definitive maps to be heard either by the Secretary of State or by the surveying authority, except where the objection relates to the reclassification of a road used as a public path or where the objectors agree that no further action need be taken.
As I understand it there are, at present, some 15,000 objections outstanding, and although the exclusion of roads used as a public path in reclassification cases would reduce that number considerably, it would still leave several thousand objections which result from claims often made many years ago. It seems to me to be unjust on those who made those objections to say to them now, as is, in effect, said under this Bill, "Because the department has failed to give a hearing to your objection, it is going to be allowed to disregard it altogether." Furthermore, what the Bill allows the department to say to one of the thousands who have had an objection lodged for, perhaps, many years, is "If you want to pursue the matter, you will have to persuade the surveying authority to make a new order."
That seems to me to be rewarding past inefficiency. The Government are, in effect, saying "The department has failed over a number of years to deal with all these objections, so we are just cancelling them out", and the poor objectors will have to start again, which does not seem to me to be very fair. I should make the point that the fact that the objections have not been heard is no criticism of this Government. These objections have been outstanding during the period in office of several Governments of both parties. So it is not a criticism from that point of view. But it seems a bit much at this stage to say, "You have had your objections on the books for years, but I am afraid that this Bill cancels them and you will have to start all over again". Noble Lords who have been listening on the radio to the adaptation of Little Dorrit will recognise the Circumlocution Office's hand in this kind of proposal. You object, you wait for years and then, before you get anywhere, you have to start all over again.
The amendment would allow the Secretary of State to transfer disputed cases to a surveying authority, by agreement with that authority, and the authority would deal with those cases using the procedure in Schedule 12. This would allow authorities to deal with new claims at the same time as processing the outstanding, transferred cases, if they wanted. It would therefore
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be simpler and easier for the authorities concerned and, I hope, fair on the objectors. My Lords, I beg to move.
Viscount Hanworth: My Lords, in my opinion, this is one of the two key amendments in Part III of the Bill. We discussed this at considerable length in Committee, so I shall not go into it in great detail. But one has a great deal of sympathy, as I said earlier, with the position of these 15,000 objections and the fact that the Secretary of State is able to deal with only 800 a year. But what has been done is simply to pass the buck, regardless. The Government have even gone so far as to talk about savings which they will make in Whitehall. What they are doing is putting the work back, if it is to be done at all, on the county councils. We know that today they are extremely tight on finance. We may therefore conclude that the work will not be done, and that a lot of people who have spent a great deal of money on the cases will find that money wasted.
What we said earlier was that it is a difficult problem and we have great sympathy with the Government. But the Bill, as it stands, is simply not good enough. There are various solutions and this is one of them. I earnestly hoped that the Government would come back at this stage with something a little more forthcoming than simply passing the buck to the local councils. It appears that the Government have not done that. I hope that they will still consider this problem earnestly, even if they fail to accept this amendment tonight, because, as things stand, this just is not good enough.
Lord Fletcher: My Lords, I think that I made the case for this amendment at the Committee stage, as the Minister will remember, and I hoped that, as a result of what I and my noble friend had said, the Minister would see the strength and force of our contentions. May I therefore repeat the complaint in a nutshell? There are a number of pending objections which have yet to be brought to a final conclusion. A number of people have made representations to local authorities and those representations have been passed on to the Minister. They are at certain stages and it is recognised in the Bill that there is power to abandon all those reviews.
The Minister gave me an assurance at the Committee stage, as he will remember, that, where a review had reached an advanced stage, where a great deal of work had been done on it and representations had been made, that work would not be wasted, the review would be completed and, if necessary, an inspector would be appointed to deal with the complaints and to hear objections. I accepted that assurance—indeed. I accept it now—but there is no machinery in the Bill, as it stands, to ensure that some outstanding objections which have reached an advanced stage will not be abandoned.
I do not particularly mind whether the Minister says, "Let the department deal with them under the present procedure", or "Let the local authority deal with them under the Bill". Either would be preferable to their complete abandonment, making people start all over again. I should, of course, prefer that the department finished the job under the old procedure

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and I do not think there is much practical difference between the department appointing an inspector and the local authority appointing an inspector. I say that particularly because we have recently in this House passed an amendment which ensures that the local authority will not have the last word. Therefore, I should be happier if this amendment were accepted by the Government. But I would, at least, ask the Minister to repeat the assurance that reviews which have reached an advanced stage will not be abandoned, and that there will be some procedure to enable them to be completed.
Lord Bellwin: My Lords, I am somewhat surprised, in view of your Lordships' acceptance of the Government's proposals for dealing with objections and representations to proposals that would lapse on the abandonment of outstanding surveys and reviews, that it has been felt necessary to go further with this amendment. Since the noble Lord, Lord Melchett, has chosen to do so, I obviously cannot avoid drawing to your Lordships' attention the inadequacies and the serious implications which it would have for the introduction of the new review procedure within those counties and former county borough areas with reviews and surveys outstanding.
The two amendments are incompatible to the extent that this one would completely undermine the Government's proposals since they are linked to the abandonment of surveys and reviews. Moreover, a principal objective of revising the review procedures was to break out of the impasse that has bedevilled reviews for years and thereby enable a fresh start to be made. Without the power for my right honourable friend the Secretary of State to direct abandonment of existing reviews, which the amendment seeks to remove, this would be impossible in those counties with reviews outstanding. Since to all intents and purposes the amendment contemplates the completion of outstanding reviews it would jeopardise, in some instances for several years, the introduction of the new procedures for the simple reason that until all the outstanding objections had been resolved there would be no suitable revised definitive map and statement available to modify.
There are in particular two drawbacks to the amendment which spring immediately to mind. The first concerns the transfer of objections and representations to authorities for determination. To my mind it is essential that it should make provision for giving effect to those proposals in draft revisions to which there were no objections or where objections have been dealt with by my right honourable friend the Secretary of State. Subsections (3) and (4) of the clause do not help in this respect since they are linked to the abandonment of reviews.
Secondly, objections to the omission of something from draft revisions are in many instances invalid. The reason for this is that reviews are concerned with events such as the discovery of evidence that occurred during the relevant period; that is, the period covered by the review. Since the evidence to support these objections was never discovered—in other words, brought to the notice of the review authority—during the relevant period and considered by them, it follows that the objection does not relate to a specific decision
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on the part of the authority not to propose something in the draft revision, and must therefore be invalid. I accept that this is a technical point but it was one of the reasons why the Government rejected as impracticable the notion of transferring objections and representations to authorities for determination.
So far as the noble Lord, Lord Fletcher, is concerned, again I repeat gladly what I said in Committee. I certainly confirm that where reviews have reached an advanced stage they will not be abandoned. What we have to resolve is the procedure for ensuring that this is so. The noble Lord probably does not expect me at this moment to give him that, but I certainly repeat the assurance which I gave before.
Lord Melchett: My Lords, I shall not press the amendment. I should like to study in Hansard what the noble Lord, Lord Bellwin, has said. He made some points which either I was not aware of, or should have been aware of but was not—one or the other. I should like to ask him a question to which I do not expect an answer now. If, however, the noble Lord could write to me it would help me to get the matter into perspective and might be of assistance in supporting his own case. If not, it would at least get the extent of the problem clear.
There are roughly 15,000 objections outstanding, as I have already said. Removing the exclusion of RUPP reclassification cases still leaves, I understand, a few thousand cases outstanding, or several thousand. I am not sure how many. I dare say that the department could make a more educated guess than I about that number. The noble Lord then gave a very helpful assurance to my noble friend, that in those cases where reviews have substantially been completed or have gone a long way towards completion the intention is to continue with them. The question which I should like the noble Lord to consider and to write to me about is this. How many objections are we going to be left with, at the end of all that, which will fall? Out of the 15,000 or so it may be that there will be comparatively few. It sounded a tremendous number to start with, but the RUPP reclassification cases remove a large number of them. Then the Government's intention is that a number of these reviews should be completed. I wonder whether the noble Lord would agree to let me know what information he has on that point. Again I see the noble Lord is nodding, so I assume that he will do so. I will study what the noble Lord has said. I am grateful to him for the care he has taken in replying to the amendment, which I beg leave to withdraw.
Amendment, by leave, withdrawn.
Lord Bellwin Lord Bellwin moved Amendment No. 174:
Page 38, line 11, after ("representations") insert ("or objections").
The noble Lord said: My Lords, this is a minor drafting amendment which is necessary to rectify an omission and thus ensure consistency in the expressions used in this part of the Bill. I beg to move.
9.6 p.m.
Lord Melchett Lord Melchett moved Amendment No. 174YA:
After Clause 43, insert the following new clause:
("Appeals on claims for definitive map amendment and road users public path reclassification orders
.—(1) Where any person submits a claim in writing to an authority alleging that the authority should make an order

(a) to modify the definitive map and statement as a consequence of the occurrence of an event specified in subsection (3)(b) or (3)(c) of section 41;

(b) to reclassify a road used as a public path in accordance with section 42;

(c) to modify the map and statement prepared under subsection (2) of section 43;

the authority shall consider the claim and shall notify their decision thereon in writing to the person making the claim.
(2) Where a claim has been submitted to an authority under subsection (1) above, and either—

(a) the authority has notified the claimant that they do not propose to make the order, or

(b) a period of twelve months has elapsed from the date of submission of the claim without a decision thereon having been notified by the authority to the claimant,

the claimant shall have a right of appeal to the Secretary of State and the Secretary of State, in deciding that appeal, may direct the authority to make such orders as appear to him requisite in consequence of the claim:
Provided that any such appeal must be made within 28 days of the date of the notification by the authority of their refusal to make an order or the expiration of twelve months from the date of submission of the claim, as the case may be, and that the provisions of this Part shall apply to any orders made by the authority in compliance with such a direction.").
The noble Lord said: My Lords, this is a very similar point to the one—
Lord Bellwin: My Lords, I wonder whether the noble Lord would give way. In the light of the decision on the transfer of jurisdiction that we resolved before the break, I ought to say straight away that we shall want to look again at this point.
Lord Melchett: My Lords, I was just going to say that I think this really is the same point. When the noble Lord says that he would like to look at it again, do I take it that the Government do not want it to be put into the the Bill tonight but that they will come forward with an amendment at Third Reading? Or is the noble Lord not going quite so far as that? Or would be not mind it going into the Bill now so that he can look at it at his leisure when the Bill is printed? As the noble Lord says that the same principle is involved, I should have thought that this amendment would now be acceptable to the Government. Therefore, I beg to move it formally.
Lord Bellwin: My Lords, exactly how far along those several paths to which the noble Lord pointed I can go I am not at the moment absolutely certain. The point I was trying to make, in an attempt to save the noble Lord going into a lot of detail, was that the decision which has been made clearly alters the stance that otherwise I should have taken. Obviously I need to consider and to discuss the proper way to deal with the matter before the next stage.
Lord Melchett: My Lords, that is very helpful. I am sure all of us will be very grateful to the noble Lord. We had a formidable and indeed an unstop-able array of speakers and arguments ready had the noble Lord not said what he has, so it has certainly speeded everything up. No doubt the noble Lord
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will bear that in mind in deciding exactly what amendment to put down at Third Reading. I hope we can expect one; otherwise, it is only fair to all of us who wished to argue strongly on this point to say that we shall come back with this amendment at Third Reading. But no doubt it will not be necessary for us to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 174 YB not moved.]
Clause 45 [Supplementary provisions as to definitive maps and statements]:
9.8 p.m.
Viscount Hanworth Viscount Hanworth moved Amendment No. 174Y BA:
Page 41, line 6, at end insert—
("(6) The surveying authority shall be under a duty to sell copies of any map and statement prepared under subsection (2) above to the public at such reasonable charge as they may determine.").
The noble Viscount said: My Lords, this is a very simple amendment. The idea is that the public must be able to obtain copies of the definitive map when a clean copy has been prepared. From a legal point of view statements must also be available and a reasonable charge could be made for both. It seems to me unrealistic to imagine that the general public should always have to visit the council offices to obtain the information or that legal advisers should have to bring their quill pen and make manuscript copies of the statement.
I hope that the noble Lord the Minister will be able to go some way towards meeting this because I think it is not enough to say that the local councils will of course do this. With all the pressures of work, unless there is something in the Bill to encourage them to do so I do not think it will happen. I beg to move.
Lord Melchett: My Lords, I should like to add to what the noble Viscount has just said something about ordnance survey maps. In replying to a similar amendment at the Committee stage, the noble Lord the Minister relied to some extent on the existence of ordnance survey maps and their availability to the public. At the Committee stage on 19th February this year, at column 801 of the Official Report, the Minister said:
"the current series of 1:50,000 and 1:25,000 … maps distinguishes between public rights of way and other unsurfaced tracks".
That is the case for 1:50,000 maps but it is only true for the second series of the 1:25,000 maps, and that second series at the moment covers no more than one-quarter of England and Wales, so we are left with three-quarters of England and Wales covered only by the first series of the 1:25,000 maps, and they do not show public rights of way at all. So, for three-quarters of England and Wales, the 1:25,000 maps do not show public rights of way.
Definitive maps—the maps which the noble Viscount and the other noble Lords whose names appear on this amendment want to see being sold by local authorities—are normally produced at a scale of either 1:10,000 or 1:5,000. So, in an area where the second series is not available—in other words in the three-quarters

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of England and Wales covered only by the first series—the definitive map will be the only map at a scale other than 1:50,000 which shows public rights of way. That is an important point because the 1:50,000 maps do not show field boundaries, and certainly the ordnance survey maps which most people buy do not show the actual field boundaries. It is impossible for somebody wanting to find out the exact route that a path takes to do so on a map which does not show field boundaries. One simply has to have the field boundaries to see exactly where the map goes. The 1:50,000 map is good enough for a walker, particularly one following an established footpath where the line will be fairly clear and there is some signposting, but one must have a map which shows field boundaries in order to be sure of the exact route, and that is why the definitive maps are so important. Ordnance survey maps are really no substitute.
There are two other points about definitive maps which support their being on sale by local authorities. In the first place, as I understand it, they are the only maps which number footpaths, and, in any correspondence between interested groups and the local authority, it is obviously very useful to be able to refer to a footpath by a reference number, much as one would a metalled road. The definitive map, as I understand it, is the only way in which one can discover the number which has been assigned to a particular path. The numbers do not appear on ordnance survey maps.
The second additional point I wanted to make is that definitive maps have a statement accompanying them which, if this amendment were accepted, the local authority would put on sale with the map. As I understand it the statement itself can be very useful indeed for those concerned with public rights of way and public paths and, again, the only way one can get the statement is to buy it from the authority.
As we said at the Committee stage, this is not something which will have expenditure implications, because the idea is that the authority will sell the definitive maps at the full cost which it takes to produce them, and I do not think anyone will complain about that. However, I really do not think that the noble Lord's offer of a circular is sufficient, because of the enormous importance of having these definitive maps available. If they are not available lot the use of the public who are interested in this, they cannot fall back on anything else. There is no other source of the statement, there is no other source of the numbers, and, in a large part of the country, there is no other source of the exact line of a public right of way apart from the definitive map. It is probably more important than I think was made clear in the debate at Committee, from our side anyway. I hope that, in view of what the noble Viscount has said, the Government will now accept this small but important point.
Lord Bellwin: My Lords, as regards the point that the noble Viscount, Lord Hanworth, made, I did say in Committee that I did not believe that it should be mandatory for authorities to place copies of the definitive map on sale to the public. Nevertheless, I was and am prepared, as I indicated in a letter to the noble Lord, Lord Melchett, last week, to suggest to authorities that copies should be available for purchase. I
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certainly undertake that I will bring it to their notice in the most appropriate way.
The other points that the noble Lord makes are of interest. I am particularly interested in the point he makes as to the non-availability from any other source. I should like to take that away and think about it again. We will perhaps also take up the noble Viscount's point, because if we are to do anything in some other way we may as well do it together.
What we are reluctant to do is to place a mandatory duty to authorities. While I take the point that, hopefully, they would not incur any expenditure, nevertheless the less we impose in a mandatory way the better. Having said that, I think that there is certainly much merit in the point about availability from somewhere, and I should like to look at that. If the noble Viscount would feel able to leave that with me for a little longer, I shall undertake to see what we can do.
Viscount Hanworth: My Lords, I thank the noble Lord very much for that reply. I do realise the problem of making these things mandatory, particularly if for some perfectly good reason the county council in fact breaks the law. Anyway, I thank the Minister very much for the way he has considered this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 174YC:
AIter Clause 46, insert the following new clause:
("Power to make temporary closure for preserving or enhancing the surface of a right of way
. In the Highways Act 1980, after section 122, there shall be inserted the following section:—
"122A.—(1) A highway authority who are reasonably convinced that a right of way within their area requires relief from equestrian traffic in order that its surface may be preserved or enhanced may, subject to the provisions of this section, close that right of way to such traffic for a period not exceeding six months.
(2) Before closing any such right of way on authority shall have regard to

(a) the availability of alternate routes, and

(b) the desirability of avoiding trespass on to land adjacent to the right of way.

(3) Nothing in this section shall permit a highway authority to prevent the exercise of any right specifically granted by the occupier of the land over which the right of way runs.".").
The noble Lord said: My Lords, this amendment is an amended version of one I moved in Committee to allow local authorities to control horses on bridleways which have become unsuitable for horses. This amendment takes into account the reservations that were made in Committee, strictly limits the time that a bridleway should be closed to six months, and takes into account the availability of alternative routes. This would encourage the very thing that I believe has been sadly missing in this part of the Bill, which has been undertaken in a small way by the Countryside Commission in Lincolnshire, which is to actively encourage unofficial and non-voluntary rights of way being arranged between the farmer and the walker or the rider. This is, in my opinion the obvious way forward, and, to be slightly cynical, is perhaps why we have not discussed it at all. It would encourage the farmer to negotiate with riding establishments and walkers temporary diversions. My noble friend Lord

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Renton stated in Committee that my amendment would not enhance the enjoyment of the countryside for pedestrians. I ask him to look at bridleways, some of which are so badly destroyed in wet winters that hardly horses, let along walkers, can use them. That then encourages the walker to move along the side of the bridleway, which creates a trespass and brings about the very thing we do not want, irritation between walker and farmer. The Spicer Committee has recommended that my original amendment be accepted, but, as the noble Lord, Lord Houghton, told the Committee, the Government only have such committees in order not to accept their recommendations. I beg to move.
The Earl of Avon: My Lords, there is provision under the Road Traffic Regulation Act 1967 for highway authorities temporarily to prohibit by order the use of a road by vehicles and pedestrians. The noble Lord's amendment seeks to introduce somewhat similar provisions for equestrian traffic on rights of way by a new clause in the Highways Act. His proposal makes no provision for the temporary prohibition to be by an order, or for any notice to be given.
The Spicer Committee advised us on 17th February that the committee were agreed on the proposal that traffic regulation order powers be extended to cover equestrian traffic, and this, of course, would cover aspects other than temporary prohibitions. The Government accept that the present position whereby there are no provisions for TROs to regulate the use of highways by equestrian traffic is anomalous, but if we were to accept anything on the lines of this amendment we may be creating further anomalies.
Although this amendment has been confined to rights of way, we still consider that the control of equestrian traffic is a matter for general highways legislation, as I indicated during the Committee stage, and I hope that it will be possible for appropriate amendments to the Road Traffic Regulation Act 1967 and the Road Traffic Act 1972 to be included in a suitable Bill in the next Session. In these circumstances I hope that my noble friend will agree to withdraw his amendment. Should he not wish to do so, I hope, all the same, that he will withdraw the amendment but let the Government table something at the next stage.
Lord Melchett: My Lords, while the noble Lord, Lord Stanley, is thinking about that, I should like to make a couple of points. I am certainly well aware of the problem at which Lord Stanley's amendment is aimed. It is true that some bridleways can become completely impassable for walkers and, as the noble Lord said, very nearly impassable for horses during some months of the year.
If the Government are to look at the matter again, I should like to raise a couple of matters that have worried me about the amendment as drafted. First, I could not see any provision for notification to equestrians that would be affected by this. I could not see any requirement for a warning or consultation before an order is actually issued—it could simply be slapped on without any warning. I should have thought that there ought to be some procedure for telling people what is going to be done because, after all, a riding school's livelihood might be quite depend
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ent on the use of certain bridleways, particularly if they are near the school and provide the only access out of the vicinity of the school. For such bridleways to be closed for six months could be a real hardship.
One could think of other circumstances where an equestrian right of way might be very important. I suppose that some noble Lords opposite might be concerned about a hunt having a right of way down a certain track or not. There are other examples that one could quote. There should be some procedure for consultation beforehand or at least some notification. Whether there is or not, I think that there should be some procedure for appeal against a closure particularly if, so far as I can see, these closures for six months could be continuous. My understanding is that when this sort of proposition has been put forward previously, there has been some requirement, for example, not to close something for more than three years out of five or something like that. So far as I can see from the noble Lord's amendment, it could be a six-month period continuously, for ever, and one could effectively close an equestrian right of way by that means.
If the Government are to look at this matter again, I wonder whether they could consider if the period of six months is possibly a little long. If these rights of way become very muddy and impassable during the winter, I should have thought that three or four months ought to see us out even in a very wet winter as we have recently experienced. After all, I should have thought that it would not have been necessary to close a bridleway until the end of December or January when the weather started to become bad. That would have taken one through February and March into the beginning of April when I think everyone in the countryside hopes that we shall have drier weather. I should have thought that three or four months at the outside was long enough.
Secondly, I wonder whether there ought to be some requirement during this period for somebody to look at the right of way and carry out some repairs if necessary. Whether that should be done by the local authority or somebody else or whether it should be done voluntarily, I do not know. However, there should at least be some nudge in the direction of putting the state of the path to rights during the period in which it is closed. After all, it would be a bit much if it were closed to horses, but some vehicles continued to use it and at the end of the six-month period it was more churned up than it had been at the beginning. I do not say that that last point is vitally important, but there are some important points which it would be worth having the Government consider. As I say, basically, I have considerable sympathy with the noble Lord in his amendment, but I should not like to see this exact wording in the Bill.
Viscount Massereene and Ferrard: My Lords, I should like to support the noble Lord, Lord Melchett, in the suggestions that he has made. I think that the period of six months is too long and that three months would be far better. I support everything that the noble Lord has said. I also find favour with the amendment of my noble friend Lord Stanley. It is a fact that if, in heavy weather, many horses go along a small bridleway, that bridleway can be turned into a

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quagmire. I should like to repeat that I think six months is too long to close it; and, of course, the point about notification is essential.
Lord Stanley of Alderley: My Lords, I thank my noble friend for his answer. I must say that I feel as though I cannot do right. I tried Spicer, and there was one reason; so I listened to your Lordships and I changed it, and I am still wrong. I suppose that it is my fault for trying to change Spicer. However, of course, the points that the noble Lord, Lord Melchett, raised are valid, but I cannot resist telling him that earlier on when we accused his drafting of being slightly defective, he said "Oh, it does not matter about the drafting; it is the principle that matters". That is what I say to him now. It is the principle that I am still trying to establish. I accept the points that he made and those made by my noble friend Lord Massereene. Yes, perhaps six months is too long.
I could not quite understand what my noble friend on the Front Bench was saying, but I should like to move this amendment as a matter of principle, and if the Government do not want it then let them throw it out on Third Reading. I do not mind; I shall not lose any sleep over it. But it seems that we are sitting here doing very little at the moment. I am sorry; I should have said that I am doing very little. I leave it at that.
Lord Melchett: My Lords, before the noble Lord, Lord Stanley, sits down, if he presses his amendment now then quite honestly I must say that my objections to it are rather more than drafting objections. Six months and three months are points of substance, not of drafting. Personally, I would object to dividing the House on the amendment. I thought that the noble Earl went all the way to meet him when he said that the Government would come back with an amendment on Third Reading. I should have thought that the noble Lord, Lord Stanley, had done a great deal of very good work in this amendment and had achieved his point, and might leave the matter at that.
Lord Stanley of Alderley: My Lords, in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.27 p.m.
The Earl of Avon The Earl of Avon moved Amendment No. 174ZA:
After Clause 47, insert the following new clause:
("Signposting of byways open to all traffic
.—(1) In section 27 of the 1968 Act (signposting of footpaths and bridleways) for the words "or bridleway", wherever they occur, there shall be substituted the words "bridleway or byway"; and for the words "and bridleways" in subsection (6) of that section there shall be substituted the words "bridleways and byways".
(2) After subsection (7) of that section there shall be inserted the following subsection—
"(8) In this section "byway" means a byway open to all traffic, that is to say, a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purposes for which footpaths and bridleways are so used."").
The noble Earl said: My Lords, when the noble Lord, Lord Kilmarnock, moved on amendment during the Committee stage on 19th February it was indicated that the Government were sympathetic to extending the signposting and waymarking provisions of the 1968
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Countryside Act to "roads used as public paths", or RUPPs, and to "byways open to all traffic", and would introduce their own amendment.
As regards RUPPs, the noble Lord, Lord Kilmarnock, pointed out that these are due to be phased out, and we have given further consideration to whether in the circumstances we ought to extend the Section 27 provisions of the 1968 Act to them. If we did so it would in particular place a statutory duty on highway authorities to erect at every place where a RUPP meets a metalled road a signpost showing the "road used as a public footpath" specifically as such. We do not feel that we ought to be placing such a duty on authorities, bearing in mind that any such sign erected would not be able to show what actual rights existed and would have to be replaced by a different sign after the "road used as a public footpath" is reclassified. As the criteria for RUPP reclassification have been reduced to one simple test, we would hope that the reclassification exercise could be completed relatively quickly, and not be a lengthy process, as feared by the noble Lord.
In the circumstances, we have confined our amendment to extending the Section 27 provisions to byways open to all traffic only. I beg to move.
Lord Kilmarnock Lord Kilmarnock moved, as an amendment to the amendment, Amendment No. 174ZAB:
Subsection (1), at end insert—
("(1A) In section 27 of the 1968 Act (Signposting of Footpaths and Bridleways) after the word "notices" there shall be inserted the words "or waymarks" and after the word "notice" there shall be inserted the words "or waymark"."").
The noble Lord said: My Lords, I am of course grateful to the Government for having brought forward an amendment of their own to meet one of the objectives contained in my amendment at the Committee stage; namely, to extend the highway authorities' signposting powers to byways. I can understand the Government's reluctance to accept one of my further aims, which was to change the power of the highway authority into a duty to erect and maintain signposts. I imagine that that has not found favour on the basis of potential cost, and I am quite prepared to accept that. However, I do want to return in this amendment to the question of waymarking and the overdue acceptance in legislation of this term. I was interested to hear the noble Earl use the term a few minutes ago. But the present position is given in Section 27(7) of the Countryside Act 1968, which reads:
"In this section (and in the amendments made by this section and in other enactments) references to signposts should include references to other signs or notices serving the same purpose".
There is no mention of waymarks.
My Lords, in my submission, this would normally be interpreted to cover only free-standing metal signs or wooden signs nailed to some surface, such as a tree, a fence, or a gate. But, as I pointed out at Committee stage, perhaps the most useful, most economical and least unsightly method of indicating the line of a country path, bridleway or by-way is by use of a painted arrow on an existing surface, whether natural or artificial. That is very widely known as a waymark.
The Countryside Commission has prepared a very simple colour-coded system of arrows devised by a committee representing farmers and landowners, local authorities and amenity organisations. These arrows

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are usually applied by means of a stencil and have become standard practice in most areas where way-marking is used. I am not entirely happy that this type of sign is covered by the wording of the Countryside Act as it now stands, and, in view of its wide acceptance as a valid and easily understood term, I believe that the time has come for waymarking to make its debut on the Statute Book.
There is really no question here of serious additional cost, because, as I explained at Committee stage, way-marking is an activity almost entirely undertaken by voluntary groups with the encouragement or permission of the highway authority and the consent of the landlord. It makes use almost exclusively of natural or other existing objects. Furthermore, it is hard to see how any wardens of footpaths who might be appointed by a local authority—and I see that we have an amendment later on the subject of wardens—would be able to carry out their task satisfactorily without using way-marks.
I do not want to detain the House any longer on a point of detail, but I believe that this is a significant detail and I hope that the noble Earl will be able to accept my amendment to the Government's amendment in the helpful spirit in which it is intended, or will be able to offer one of his own to cover the case if he finds mine defective. Of course, he may prefer to assure me that waymarks are covered by the phrase "other signs or notices serving the same purpose", though personally I believe that the actual inclusion of the term "way mark" is overdue, and would help to encourage a very useful practice. I beg to move.
Lord Underhill: My Lords, I wish to support the amendment moved by the noble Lord, Lord Kilmarnock, and I do so for two reasons—first, for the same reason as was mentioned by the noble Lord; that there is an amendment later which does suggest the appointment of wardens to assist the users of paths. The proposed amendment would be complementary to that. The two would fit in together extremely well. My second reason is that it would be of benefit not only to the users of the paths. It would be of great value to farmers and landowners, because how often does one find oneself walking along a path and coming to a junction, or to a place where the path becomes indistinct, particularly after heavy rainfall, and not quite knowing which way to go? Those who have had the pleasure of walking the fells in the Lake District will know how valuable—in fact sometimes almost indispensable if one has only been there once before, if ever—are the cairns of stones which mark the main route.
This would be a very simple amendment which would be of great benefit to those who use the paths and also in avoiding inconvenience to owners or occupiers of land caused by persons straying off a path because it is indistinct or because there is a diversion where there is no waymark actually indicating the direction in which one should go. I hope that this further amendment will be supported.
9.35 p.m.
Lord Moyne: My Lords, in discussing this amendment
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to the Government's amendment, may I ask the Minister to explain the grave objections to ambiguity? In discussing waymarks is it suggested that the way-marks should say whether it is a bridle path or a byway? If it is confusing that distinction by saying "bridleway or byway", then I object to it as much as I object to the Government's amendment. But if that is not what this amendment to the amendment is saying, I do not object to it.
Lord Monk Bretton: My Lords, it might be best if I intervene, also, at this particular moment. While I support waymarking and signposting in general, and very much so, I remain opposed to Amendment No. 174ZA itself. It will, I think, encourage motorcyclists, who otherwise would not do so, to come off a road. The clause would lay a duty on authorities to signpost byways where they leave metalled roads. It is very important that there should be a discretion left to authorities as to whether they do this or whether they do not, because of the risk I have just explained. I do not want to ruin the fun for motor-cyclists—and I have had a go at it already today—but it does not seem necessary to give them quite so many privileges under this Bill.
Lord Teviot: My Lords, I have no hesitation in speaking on this amendment at all. It is rather confusing. One starts off with the noble Lord, Lord Kilmarnock, talking about waymarking. He was then backed up by the noble Lord, Lord Underhill, saying how necessary it was when one got off the main road in the middle of nowhere to know where to go. Then my noble friend Lord Moyne and my noble friend Lord Monk Bretton both brought objections straight away.
Surely apart from waymarking these paths should be signposted. I do not know what my poor noble friend who is to reply to all this and to make sense of all this is going to say. In West Sussex there was a splendid gentleman called Mr. James Rammell. In his earlier life he was conservator of forests in Kenya. He invented a post. Sometimes where there was a meeting of the ways of about five or more footpaths—that might be an exaggeration, but certainly three or more—in the middle there the posts were. Waymarking is really not too satisfactory. If waymarking is all that this amendment does, it is doing a very small thing. One wants something rather more than that, which I thought was legislation now. From everybody's point of view, if one gets in the middle of nowhere people should know where they should go.
Lord Underhill: My Lords, before the noble Lord sits down, perhaps I ought to indicate that this is an amendment to Section 27, which refers to signposts. It is a question of adding waymarks.
Lord Teviot: I thank the noble Lord.
The Earl of Avon: My Lords, we seem to have gone a long way off the amendment to the amendment, which is really waymarking. Although the terms "way-marks" or "waymarking" do not appear in Section 27 of the 1968 Countryside Act, the signposting required under subsection (4) to assist persons unfamiliar with

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the locality to follow the course of a path or way is nowadays usually described as waymarking. The Government are prepared to consider whether any further clarification along the lines of this amendment would be desirable. In view of the interesting remarks from noble Lords opposite, we will of course take into account what they have said. With this assurance, I hope that the noble Lord will be able to withdraw this particular amendment. As for my noble friend's comments about signposting at byways open to traffic, I think it would be unfair not to signpost what is a legitimate road, and I cannot see why we should not put a signpost in position for byways.
Lord Kilmarnock: My Lords, I am grateful to the
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Minister for those remarks. I would remind the noble Lord, Lord Moyne, that at present the system is yellow for footpaths and blue for bridleways; I have no doubt that something else can be devised for byways. The noble Lord, Lord Teviot, may care to know that way-marks are no more and no less than an extension of signposting, in which he believes. In view of the Minister's remarks—that the Government will give sympathetic consideration to incorporating the term "waymarking" in the final statute as it emerges—I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
Amendment No. 174ZA agreed to.
9.41 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 174ZB:
After Clause 47 insert the following new clause—
("Dogs
.—(1) If, in a case not falling within subsection (2), any person without lawful authority allows a dog to be present in a field or enclosure containing sheep or lambs, he shall be liable on summary conviction to a fine not exceeding £200.
(2) Subsection (1) shall not apply to—

(a) any person acting with the permission of the owner or occupier of the field or enclosure;

(b) any person on a right of way so long as the dog is—

(i) on a lead of reasonable length; or

(ii) under close control;

(c) any blind person; or

(d) any constable acting in the exercise of his duty.

(3) In any proceedings under subsection (1) it shall be a defence to show that the defendant had made every effort to follow the line of the right of way but had been unable to do so.").
The noble Lord said: The purpose of this amendment is identical to one I moved in Committee, my Lords, which was designed, first, to protect sheep from dogs and, secondly, to help encourage a good relationship between farmers and walkers. I will not repeat my reasons—they can be found at column 806 of Hansard for 19th February—but I have taken note of the deficiencies raised by noble Lords and particularly by the noble Lord, Lord Melchett.
My noble friend Lord Avon replied sympathetically but implied that the Government would have to consider the other recommendations of the report to which the noble Lord, Lord Houghton of Sowerby, had drawn attention at that stage, namely, Dogs in Society, about which he reminded your Lordships that the Government had no intention of doing anything in this Parliament; and indeed the last Government did nothing about it either.
I accept completely that that report, with its increased licence fee and identification of dogs, is the answer, but I cannot get such action. Neither can your Lordships. Nor can the noble Lord, Lord Houghton, so I am forced to go for this amendment, which I am afraid is rather a bodged job compared with the report's recommendations. However, if your Lordships will accept it, it may force the Government to do something, if only to return at Third Reading with a better amendment or, better still, the promise of a look at or acceptance of the report Dogs in Society. We cannot continue the needless slaughter of sheep when there is a perfectly simple alternative.
Viscount Massereene and Ferrard: My Lords, I support the amendment. I have suffered badly, and I speak as a dog-lover who has dogs. I am glad to say that my dogs are under control, although my wife's are not always. The worst that happened to me in this context was when I had 53 gimmers or tegs—that is, young ewes going to lamb for the first time—killed by dogs. It happened a few years ago and the worst part was that they were not killed outright. Although a few might have been killed straight away, they were badly maimed and all had to be destroyed.
I do not want to stop people coming from the towns to the country with their dogs. The trouble is that many
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people do not understand that if they are crossing a field by, say, a public footpath and they let their dogs off the lead, if the ewes are in lamb the dogs may not necessarily chase them but just be running around in the field, and the very fact that the sheep see the dogs makes them run. The sheep are frightened and lambing can be affected. I shall say no more, beyond repeating that I wish to support the amendment.
Lord Melchett: My Lords, I think I was virtually the only noble Lord who at the Committee stage had some objections to the amendment that was then moved on this matter, and I must say that the redrafted amendment meets all the objections that I previously raised. As I believe I said previously, I have much sympathy with the problem with which the amendment is designed to deal. I certainly very strongly support the amendment, and I hope that my noble friends will support it, too, if the noble Lord wishes to press it, or needs to do so, though naturally I hope that the Government will accept it.
I have only one query—it is no more than that—and I believe it can be cleared up if the amendment is included in the Bill. It relates to the definition of "field or enclosure". I take it that it is not intended that an offence is committed where someone walks across open moorland or hill land with a dog which is not on a lead, or not even under close control. I take it the offence would arise only in a field or in an enclosure, and I think that, on the whole, the kind of problems to which the noble Viscount referred would occur only in enclosed areas.
The worst cases of this kind are when a dog traps sheep against a fence or in the corner of a field. The dog might maim or injure many of the sheep, while some of the others might be injured in a general scramble to get through, over or under the fence. I do not imagine that the intention is to create an offence in circumstances where someone is walking down an unfenced road in Scotland, with sheep wandering from side to side, as well as over the hills. In such circumstances the proposal would be unenforceable. If the intention is as I assume it to be, I think it would be useful to have a definition of the term "field or enclosure". I imagine that we are all thinking of an area enclosed with a sheep-proof fence. It could be a fairly large area, but it would not cover the whole of a hill or an area of hundreds or thousands of acres.
With that minor qualification I give the amendment my wholehearted support. I hope that it will lead to those who walk in the country with dogs keeping their dogs under proper control. I always keep my dog under proper control. It never chases sheep. In my experience it is simply a question of training dogs properly when they are puppies, whatever type of dogs they are. I also hope that the amendment will make people who encourage dogs to run behind cars realise that they might be involved in a very serious offence if they do not keep their dogs under proper control. As I said at the Committee stage, that is a totally deplorable practice. There is a major educative lesson to be driven home here. This is a very serious matter for farmers. I hope that the Government will accept the amendment, but if they do not I hope your Lordships' House will accept it.
Baroness Elliot of Harwood: My Lords, I wish to support the amendment very strongly. As I think your Lordships are aware, I am a hill farmer. Last Thursday night there was a discussion on how to help farmers. I can tell your Lordships that the very worst thing that can happen to a hill farmer is for his sheep to be chased or bitten by dogs, involving perhaps the killing of gimmers, as my noble friend said. This is a very serious matter. I was glad to hear what the noble Lord, Lord Melchett, had to say about this. I have only one difference with him. I think that hill land must be included. The real hill farmer probably has only a small proportion of his land enclosed; his biggest flock is out on the hill.
Believe me, my Lords, if dogs are allowed to run about on the hills they can do enormous damage. At lambing time the result can be absolutely disastrous, but even at other times the dogs can cause a tremendous amount of damage. I have given permission to a country school—a school for children who are under the normal school age and who come for a fortnight or so to learn about the countryside—to walk across the hill where there are sheep, but always on the understanding that they do not take along dogs, because in the world of sheep the only dogs that should be allowed are sheep dogs, and no other kind of dogs.
Sheepdogs will not chase sheep unless they have gone mad; and occasionally that can happen; but on the whole we are not talking about dogs and sheep, but sheepdogs. Any other kind of dog, unless absolutely under control or on a lead, is a menace. By far the worst thing that can happen to a hill farmer is for people to be allowed to go over his land with dogs. I beg the Government to accept the amendment. But it must include not only animals in a field but the ones on the hills. The noble Lord, Lord Melchett, is wrong when he thinks that this applies only to the enclosures; it is nothing of the kind. It applies to the hills just as much. There are far more chaseable sheep on the hills than in the fields. Often the dogs which chase sheep in the fields are seen; but in the hills nobody knows where they are. They can do all the damage in the world. This amendment is extremely important, far more so than any proposal made last Thursday night about how to help the hill farmers. This is a vital matter. I trust the Government will accept the amendment.
Lord Collison: My Lords, I have seen what can happen when dogs are let loose in a field. They can do enormous damage. I have seen sheep and lambs killed by dogs. I know, too, of the damage caused when lambing is on and when the sheep are chased by dogs. One cannot always be sure how dogs will behave. I have a vivid recollection when I was a boy of taking for a country walk a collie (a breed often used as a sheep dog) which was bred in town. The dog went berserk when he saw a field full of sheep. He went mad and chased them around. We tried all ways to train him. I am afraid that we used the strap on him to make him realise that he ought not to do it; but we never succeeded. We were never able to take that dog for a walk and let him loose in a field. It is a painful thing to the owner; but I think that the restrictions which the owner is called upon to place on a
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dog in the terms of this amendment are realistic and sensible, and I hope that the Government will be able to accept this amendment.
Lord de Clifford: My Lords, I should like to support this amendment moved by Lord Stanley. This is probably one of the most important amendments regarding sheep farming and hill farming. I am very pleased to read in the proposed subsection (2)(b):
"any person on a right of way so long as the dog is … on a lead of reasonable length; or … under close control: …".
It has been my experience, having a right of way which runs through my property, that dogs will come on to that place. I have seen them kill and run wild. I have seen two dogs kill geese and ducks and anything else, and then just flog off. It is really quite unbelievable that people who bring dogs into the country have no idea what the country means to people. It does not seem to mean a thing to them that people get their living off the country and that they should look after and take care of their dogs so that they do not destroy what is a farmer's livelihood. The losses are unbelievable over this area. I hope sincerely the Government will accept this amendment. If they do not accept it, I hope your Lordships will put it in and let them sort it out for themselves.
9.55 p.m.
Lord Sandford: My Lords, as one of the noble Lords who took part last Thursday (making what I hoped would be helpful suggestions about assisting hill farmers but whose suggestions may not have been entirely acceptable to the noble Baroness) I agree with her that that can be undone in a few moments through a failure to be able to enforce what is proposed by this amendment. I hope very much that the Government will accept it.
Lord Burton: My Lords, earlier in this debate there was talk about battle lines being drawn. It seems a wonderful occasion now when the Back-Benches on this side seem to be united with those opposite. I am one of the few who will get up and say that I am not entirely in agreement with this amendment. The noble Lord, Lord Melchett, mentioned a field or enclosure. I have a reference to that in a later amendment. It is not a good definition; he is right on this. There are one or two other problems which arise. I hope that the Government will accept this in principle, because we are all absolutely in agreement on the principle of this issue. If the Government can draft an amendment for Third Reading, this would be most valuable. I hope my noble friend on the Front Bench will agree with this.
The Earl of Avon: My Lords, the Government, like everyone else in the House, are entirely sympathetic with the intention of protecting sheep and lambs from dog-worrying. There is no doubt about that. But we are of the opinion that the position is adequately covered in England and Wales by the Dog (Protection of Livestock) Act 1953, which provides for the punishment of persons whose dogs worry livestock on agricultural land, and by Section 9 of the Animals Act 1971, which empowers farmers to defend their livestock against attacks by dogs who worry, or who

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are about to worry, them.
The noble Baroness mentioned Scotland. This amendment would not cover Scotland. The brief inquiries that I have made tell me that the Scottish law has an even stronger Act than is the case in England and Wales. I should like to add, as I did in Committee when answering the same point, that one of the 10-point slogans of the present country code is concerned with the control of dogs, and hence with preventing attacks on sheep and lambs.
Reference has been made to the 1976 report of the working party on dogs. Arguments put forward by noble Lords on this matter will be carefully considered. The Government regret that they cannot agree to the Wildlife and Countryside Bill being extended to cover this amendment. We feel that it is outside the scope of our discussions. It opens up a number of side issues, some of which have been raised here tonight and which need a lot more thought than we have given them. They are not applicable to this legislation. This is the Wildlife and Countryside Bill, and, in the circumstances, I hope that the noble Lords will not press the amendment.
Lord Teviot: My Lords, as one who has not shot his bolt by having spoken before my noble friend spoke, I am very disappointed with that answer. I listened to his argument, as did the whole House. I am afraid that I (and, I think, a few others) shall not be able to support the Government in their view.
The Earl of Swinton: My Lords, I should like to echo that. To say that a Wildlife and Countryside Bill is not the right vehicle for providing protection for wildlife in the countryside seems a most extraordinary answer.
The Earl of Avon: My Lords, with the leave of the House, I said it was already covered in two Acts.
Lord Stanley of Alderley: My Lords, we have had another long discussion on this amendment. I am put in a difficult position because I want this amendment very badly, or something in this form, and something in this form I am going to get at some stage. I am raising my voice just like the noble Earl, Lord Avon, did in reply to me. I am probably going to disappoint the House now: I am not going to press the amendment. I still think I am not absolutely right in my drafting, though those who drafted it for me have done a better job than last time. I shall move it on Third Reading. There will be no "ifs" or "buts" about it; I shall get it right.
I am worried about the enclosure point of view that has been raised, not only by the noble Lord, Lord Melchett, but also the noble Lord, Lord Burton. I shall let the Government off the hook on this occasion. However, there is no doubt in my mind that if I pressed this amendment now I would win it on my head.
Lord Melchett: My Lords, may I just interrupt the noble Lord? It is not for me to give him advice, but
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if he wants to get the drafting right I just wonder whether he might consider the fact that if the amendment is in the Bill parliamentary counsel will have to look at it. If the noble Lord takes it away, parliamentary counsel will not have to look at it; and now he has satisfied me that his intention is as I thought it was and not as the noble Baroness seemed to be trying to say, I certainly would be happy to support the amendment.
Lord Stanley of Alderley: I do not know, my Lords; that is the trouble! I think that unless your Lordships feel otherwise—and it is entirely in your hands to press it if you wish—I personally would prefer to leave it until Third Reading, because I think I would get it quite right then and I feel sure that I would have your support again.
Lord Renton: My Lords, I wonder if it would help my noble friend to make up his mind if I were to say that I have both prosecuted and defended cases under the present law, and it is pretty effective?
Earl Waldegrave: My Lords, from my own experience, may I add to that, that I have succeeded in two prosecutions this year for dogs coming into a field and worrying sheep? In both cases the owners of the dogs were prosecuted by the police. In one case, the dogs were put down, and in the other case, I am not sure what happened to the dogs, but the owners were fined. There is a law against sheep worrying.
Viscount Hanworth: My Lords, I should like to make one last point—
The Earl of Avon: My Lords, this is Report stage, and we are only allowed to speak once, but—
Viscount Hanworth: My Lords, I have not spoken at all. That has wasted two minutes anyway! I was going to say that this amendment tends to prevent something happening; in other words, it recommends or insists that dogs should be kept on leads under certain conditions. That is a very different thing indeed from prosecuting after an accident has occurred with a sheep.
On Question, amendment negatived.
Schedule 13 [Orders creating, extinguishing or diverting public rights of way]:
Lord Melchett Lord Melchett moved Amendments Nos. 174ZBA, 174ZBB and 174ZBC:
Page 82, line 3, after ("an") insert ("unopposed")
Page 82, line 4, after ("an") insert ("unopposed")
Page 82, line 5, after ("Act") insert ("or, in either case, submit an opposed draft order to the Secretary of State for making").
Lord Bellwin Lord Bellwin moved Amendment No. 174ZBD:
Page 82, line 16, at end insert—
("(2A) In subparagraph (2) of that paragraph—

(a) in paragraph (a) the words "in the London Gazette and" shall be omitted;

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(b) at the end of paragraph (b) there shall be inserted the words—

"(iv) such other bodies as may be prescribed or as the authority may consider appropriate; and"; and

(c) for paragraph (c) there shall be substituted the following paragraph—

"(c) by causing a copy of the notice to be displayed in a prominent position—

(i) at the ends of so much of any footpath or bridleway as is to be stopped up, diverted or extinguished by the order; and

(ii) at such other places as the authority may consider appropriate").

The noble Lord said: My Lords, I have already spoken to this amendment, and I beg to move.
[Amendment No. 174ZBE not moved.]
Lord Melchett Lord Melchett moved Amendments Nos. 174BF to 174BL:
Page 82, line 30, leave out sub-paragraph (5) and insert—
("(5) In sub-paragraph (1) of paragraph 3 of that Schedule for the word "confirming" there shall be substituted the word "making" and for the word "confirm" there shall be substituted the word "make".")
line 36, leave out sub-paragraph (6) and insert—
("(6) In sub-paragraph (2) of paragraph 3 of that Schedule for the word "confirm" there shall be substituted the word "make".").
Page 83, line 1, leave out sub-paragraph (7).
Page 83, line 15, leave out sub-paragraph (8) and insert—
("(8) In paragraph 4(1) of that Schedule for the word "confirm" there shall be substituted the word "make", and for the word "confirmation" there shall be substituted the word "making".").
Page 83, line 19, leave out sub-paragraph (9) and insert—
("(9) In paragraph 5 of that Schedule for the words "submission and confirmation" there shall be substituted the words "and submission".")
Page 83, line 21, leave out sub-paragraph (10) and insert—
("(10) In paragraph 6 of that Schedule for the words "order was made" there shall be substituted the words "draft order was prepared" and for the word "confirmed" in each place where it occurs there shall be substituted the word "made".").
Lord Bellwin Lord Bellwin moved Amendment No. 174ZBM:
Page 83, line 21, after ("Schedule") insert ("(a)").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Bellwin Lord Bellwin moved Amendment No. 174ZBN:
Page 83, line 24, at end insert ("and
(b) in paragraph (b) for the words "a like notice" there shall be substituted the words "like notices" and for the words "the notice" there shall be substituted the words "the notices."").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Melchett Lord Melchett moved Amendment No. 174ZBP:
Page 83, line 26, leave out sub-paragraph (1) and insert—
("(1) In subsection (1) of section 26 of the Highways Act 1980 (compulsory power for creation of footpaths and bridle-ways) for the words "made by them and submitted to and confirmed by the Secretary of State, or confirmed by them as an
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unopposed order" there shall be substituted the words "prepared by them and submitted to and made by the Secretary of State, or made by them as an unopposed order".").
Viscount Ridley Viscount Ridley moved Amendment No. 174ZC:
Page 83, line 32, at end insert—
(". In subsection (3)(b) of section 116 after "England" insert "and is not a byway open to all traffic, a bridleway or a footpath".").
The noble Viscount said: My Lords, I should like to take Amendment No. 174ZD with this amendment, because it is on the same point. The amendments together would affect the procedure where a highway authority seeks to apply to the magistrates' court for the diversion or closure of a right of way under the provisions of Section 116 of the Highways Act 1980. As the law stands at present, an application under that section may not be pursued if the district or parish council refuse to consent to the making of an application to the magistrates. If, however, the highway authority were to make a public path order to stop or divert a footpath or a bridleway under the provisions of Sections 118 or 119 of that Act, there is only a right of objection for a district or parish council and not a right of veto.
If alternative procedures are to exist in Section 116 on the one hand, and Sections 118 or 119 on the other hand, it seems sensible and acceptable, I hope, in the interests of good management, for the procedures to be made the same so far as possible. The amendments which I am now proposing would alter the existing provisions of Section 116 of the 1980 Act. At present, if a highway authority propose to make an application to the magistrates under Section 116 for an order relating to a highway, they have first to give notice of their proposals to the district council and to the parish council. The authority may thereafter not proceed, if within two months the district or parish council indicate that they have refused consent to the making of the application.
The amendments which I am now proposing would restrict the requirement of the highway authority to give notice of a proposal to the parish council for those highways which are not a byway open to all traffic, a bridleway or a footpath. Under the revised procedure, only the district council would continue to be consulted and the parish council would be taken into account by the district council in deciding its views on the subject.
The second amendment would add an additional provision to Schedule 12 to the Act, which deals with the giving of notice by the applicant for an order under Section 116. The amendment proposed would add an additional requirement that, in the case of a highway which is a byway open to all traffic, a bridleway or a footpath, notice of a proposed application should be given to the parish council. The parish council would therefore continue to be notified of any proposal by a highway authority under Section 116, but would not have a statutory right, as at present, to prevent the making of an application to the magistrates' court by the highway authority.
I moved these amendments at Committee stage and my noble friend Lord Bellwin, in replying for the Government, said that he was interested in anything that would help good management and the simplifica

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tion of these processes. But he felt that the amendments which I then moved embraced, in addition to public paths and metalled tracks, other classes of highway and, as such, a matter of general highway legislation was involved which the Government would, quite rightly, not wish to extend into the Bill which we are now discussing. The amendments which I have now tabled deal only with byways open to all traffic, bridleways or footpaths. They therefore, I believe, meet this objection and are not concerned with general highway legislation. I believe that they are a simplification of the procedures under this Bill and they do not extend the scope of the Wildlife and Countryside Bill. My Lords, I beg to move.
Lord Melchett: My Lords, I am a little concerned about this amendment. The noble Viscount said that the parish council's views would be taken into account by the district council. But I cannot help feeling that there would be a possibility of ignoring or overriding a parish council's views, if this amendment were accepted. While we spoke very strongly in favour of a local authority not making the final decision, I do not think that we on this side would have any feelings at all against the views of local authorities and parish councils being able to be expressed. I understand that what would happen if the amendment were accepted is that, if there were a dispute, people would be more likely to end up in court rather than at a public inquiry. Going to court is always much more daunting for most people, other than lawyers, and is very often more expensive than appearing at a public inquiry. It seems to me that there are those two disadvantages to the noble Viscount's amendment.
Lord Bellwin: My Lords, I say at once that I accept that, unlike my noble friend's previous amendment which we had in Committee, this latest one concerns only a limited range of highways. The problem is that it nevertheless still represents a departure from the general tenor of the Bill, in that it amends a provision which embraces all classes of highway, apart from trunk and special roads. The criticism that it is more akin to general highways legislation is therefore, if not to quite the same extent as previously, still a fair one to make. Furthermore, it is particularly unsatisfactory in so far as it would create an undesirable anomaly between England and Wales, since the power of veto enjoyed by the Welsh community councils would not be lost.
I am also not convinced that the power of parish councils to veto applications to the magistrates is obsolete. Before I would want to consider its repeal I should need to be persuaded beyond all shadow of doubt that it no longer served a useful purpose and that parish councils withheld consent unreasonably. It seems to me that it recognises that parish councils, as the lowest tier of local government, are in their areas very much in tune with local needs and have a useful and effective part to play in protecting the lesser classes of rights of way and, in doing so, the interests of the local community. It is also consistent with other powers that parish councils hold in respect of highways. Nor would I regard the fact that parish councils do not have identical powers in relation to
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the extinguishment of footpaths and bridleways under Section 118 of the Act as justifying the removal of the power of veto under Section 116.
I listened very carefully to my noble friend, because when we talk of matters with local government implications I know that his own involvement goes back a long way. His view is always something to which I like to listen. My noble friend talks very much from the point of view of the county as a highway authority. As he knows, I speak from experience of a tier which in some ways is the second tier, although it has many more functions at the district level. Now we are also discussing the parish council level. In a way, it is almost ironic that I should stand here defending very much the line of the parish councils. However, in this context it is only right that I should, because they certainly do have a role to play. If we diminished that role we should tend to diminish the strength of local government generally.
Certainly I feel that in this context the case is not made out sufficiently for me to be able to accept my noble friend's amendments. I am wondering whether or not it might be possible to have a further look at the matter to see whether or not there is any degree to which one can meet it, but as it stands now I do not feel able to do so.
Viscount Ridley: My Lords, I am grateful to my noble friend for what he has said. I had hoped that I was simplifying the Government's legislation. My aim always has been to simplify it, and I am sorry if I have not done so. There is ample precedent for the district council to take into account the views of the parish councils in its area on the planning legislation which we now have—in particular the control of development. It is the only practical way. To get the views of a parish council one must go through the channel of the district council. I should have thought that it was a very good precedent which could be set. However, if I am accused of driving a wedge between England and Wales at this hour of the night, it is the last thing which I would wish to do. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.14 p.m.
Lord Melchett Lord Melchett moved Amendments Nos. 174ZCA, 174ZCB, 174ZCC and 174ZCD en bloc:
Page 83, line 33, leave out sub-paragraph (1) and insert—
("(1) In subsection (1) of section 118 of that Act (stopping up of footpaths and bridleways) for the words "made by them and submitted to and confirmed by the Secretary of State or confirmed by them as an unopposed order" there shall be substituted the words "prepared by them and submitted to and made by the Secretary of State, or made by them as an unopposed order ".")
Page 83, line 37, leave out sub-paragraph (2) and insert—
("(2) In subsection (2) of that section for the word "confirm" there shall be substituted the word "make".")
Page 84, line 3, leave out from (""making"") to end of line 4.
Page 83, line 5, leave out sub-paragraph (1) and insert—
("(1) In subsection (1) of section 119 of that Act (diversion of footpaths and bridleways) for the words "made by them and submitted to and confirmed by the Secretary of State or confirmed by them as an unopposed order" there shall be substituted the words "prepared by them and submitted to and made by the Secretary of State, or made by them as an unopposed order".").
Lord Bellwin Lord Bellwin moved Amendment No. 175:
Page 84, line 9, leave out sub-paragraph (2) and insert—
("(2) In subsection (6) of that section for the words from the beginning to "they" there shall be substituted the words "A council shall not make a public path diversion order unless they" and the words "the Secretary of State or, as the case may be" shall be omitted.").
The noble Lord said: My Lords, this amendment is necessary to rectify an unfortunate chapter of errors that occurred during the Committee stage. What would appear to have happened was that Amendment No. 535, which was tabled by the noble Lord, Lord Melchett, and to which he spoke in moving Amendment No. 489, was, for some inexplicable reason, down in the Marshalled List in my name. Consequently when we reached it, I assumed, as it now turns out, erroneously, that I had spoken to it in connection with previous Government amendments to Schedule 13 and therefore I moved it. I am confident that such an error will not occur again, my Lords, and I trust that the House will accept my apologies for any inconvenience caused. The amendment merely substitutes what was in the Bill before Committee stage for what is now in the Bill and, with repeated apologies for any inconvenience caused or for time lost, I beg to move.
Lord Melchett: My Lords, the noble Lord is doing himself a grave injustice. In fact what he did in moving this amendment at Committee stage was to foresee the outcome of the Division before dinner, because this amendment which he put in the Bill was consequential upon the series of amendments which would have returned the decision-making power to the Secretary of State. Now, the House has agreed to that and in fact the noble Lord pre-empted all of us by moving this in Committee. It is now needed in the Bill because it is consequential upon the decision that we took before dinner, so I hope that the noble Lord will withdraw his amendment and I congratulate him on his foresight.
Lord Bellwin: My Lords, as indeed it is consequential, of course I do withdraw it now.
Amendment, by leave, withdrawn.
Lord Melchett Lord Melchett moved Amendments Nos. 175A, 175B and 175C en bloc:
Page 84, line 14, leave out paragraph 7 and insert—
("7. In section 120(3) of that Act (exercise of powers of making public path extinguishment and revision orders) for the word "made" in both places where it occurs there shall be substituted the word "prepared", for the word "confirm" there shall be substituted the word "make", and for the words "make the order" there shall be substituted the words "prepare a draft order".")
Page 83, line 28, after ("authority") insert ("or the Secretary of State")
Page 83, line 34, leave out from beginning to (" give ") in line 36 and insert—
("(1) Before a public path creation order, a public path extinguishment order or a public path diversion order is submitted to the Secretary of State for making or made by the authority as an unopposed order, the authority shall prepare a draft of the order and shall").
Lord Bellwin Lord Bellwin moved Amendment No. 175D:
Page 85, line 1, leave out from beginning to ("that") in line 3 and insert—
("(3) For sub-paragraph (3) of that paragraph there shall be substituted the following sub-paragraph—
"(3) The notices to be given under sub-paragraph (1) or (2) above shall be given—

(a) by publication in at least one local newspaper circulating in the area in which the land to which the order relates is situated;

(b) by serving a like notice on—

(i) every owner, occupier and lessee (except tenants for a month or any period less than a month and statutory tenants within the meaning of the Rent (Agriculture) Act 1976 or the Rent Act 1977) of any of that land;

(ii) every council, the council of every parish or community council, and the parish meeting of every parish not having a separate parish council, being a council, parish or community whose area includes any of that land;

(iii) such other bodies as may be prescribed or as the authority or, as the case may he, the Secretary of State may consider appropriate; and

(c) by causing a copy of the notice to be displayed in a prominent position—

(i) at the ends of so much of any footpath or bridleway as is created, stopped up or diverted by the order; and

(ii) in such other places as the authority or, as the case may be, the Secretary of State may consider appropriate."

(3A) After "
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Melchett Lord Melchett moved Amendments Nos. 175E, 175F, 175G and 175H en bloc:
Page 85, line 13, leave out sub-paragraph (4) and insert—
("(4) In sub-paragraph (1)(a) of paragraph 2 of that Schedule the words "confirm or" shall be omitted, and in sub-paragraph (1)(b) for the word "made" there shall be substituted the word "prepared", and for the word "confirm" there shall be substituted the word "make".")
line 17, leave out sub-paragraph (5) and insert—
("(5) In sub-paragraph (2) of that paragraph the words "confirming or", "confirm or" and "as the case may be" in both places where those words appear, shall be omitted.")
line 31, leave out sub-paragraph (6) and insert—
("(6) In sub-paragraph (3) of that paragraph the words "confirm or" shall be omitted.").
Page 86, line 4, leave out sub-paragraph (7).
The noble Lord said: My Lords, I beg to move these four amendments en bloc.
Lord Bellwin Lord Bellwin moved Amendment No. 175K:
Page 86, line 24, leave out sub-paragraph (10) and insert—
("(10) For paragraph 4 of that Schedule there shall be substituted the following paragraph—
"4. As soon as may be after an order to which this Schedule applies has been made, the authority or, as the case may be, the Secretary of State shall—

(a) publish, in the manner required by paragraph 1(3)(a) above, a notice in the prescribed form describing the general effect of the order, stating that it has been made, and naming a place where a copy of it as made may be inspected free of charge at all reasonable hours;

(b) serve a like notice and a copy of the order as made on any person on whom notices were required to be served under paragraph 1(3)(b), (3A) or (4) above; and

(c) cause like notices to be displayed in the like manner as the notices caused to be displayed under paragraph 1(3)(a) above;

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but no such notice or copy need be served on a person unless he has sent to the authority or Secretary of State (according as the notice would require to be served by an authority or the Secretary of State) a request in that behalf specifying an address for service."").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
The Deputy Speaker (Lord Segal): If this amendment is agreed to, I cannot call Amendment No. 175L.
[Amendment No. 174ZD not moved.]
Clause 48 [Prohibition on keeping bulls on land crossed by a footpath or bridleway]:
The Earl of Avon The Earl of Avon moved Amendment No. 174A:
Page 41, line 28, leave out ("footpath or bridleway") and insert ("right of way to which this Part applies").
The noble Earl said: My Lords, during the Committee stage on 19th February the noble Lord, Lord Milverton, moved an amendment, the intention of which was to extend the bull control provisions to cover fields and enclosures crossed by byways open to all traffic and roads used as public footpaths. In response I said that this was acceptable to the Government and that we would consider drafting something on these lines for Report stage. The wording used in this amendment namely "right of way to which this Part applies" means, as stated in Clause 49,
"a right of way such that the land over which the right subsists is a public path or a byway open to all traffic".
When Part III of the Bill comes into force, the term "road used as a public path or a RUPP" will apply only to what is shown on the map and statement and not to anything on the ground. What is shown on the map as a RUPP will on the ground be either a public path or a byway open to all traffic. What are shown as RUPPS are therefore embraced within this amendment. I beg to move.
Lord Melchett: My Lords, I welcome the amendment and perhaps I may stretch the patience of the House by returning briefly to Amendment No. 175L. This was one of the amendments which was consequential on the decision made before supper, and I have a feeling, although I have not had time to study it, that there will be some consequential changes needed to Amendment No. 175K, which has gone in, pre-empting No. 175L. May I ask the Government to look at that? Obviously, I shall look at it before Third Reading, but it would be a great help if they could table the drafting amendment which is obviously needed. I would like to thank the Government for Amendment No. 174A.
10.21 p.m.
Lord Spens Lord Spens moved Amendment No. 174B:
Page 41, line 38, at end insert—
("(4) If the occupier of a field or enclosure crossed by a bridleway, road used as a public path or byway open to all traffic, permits a stallion to be at large in the field or enclosure he shall be liable on summary conviction to a fine not exceeding £200.
For the purposes of this section "stallion" means any non-castrated male equine animal of two years or over.").
The noble Lord said: My Lords, this is an amendment
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we discussed in Committee. It is an amendment which would seek to prevent stallions from being allowed to run at large in a field or enclosure—and we have already mentioned the phrase "field or enclosure" as requiring definition—through which a bridleway passes. At Committee stage I had a fair amount of support for the amendment. The noble Earl said that he would have a look at it in the light of the fact that it was recommended by the Spicer Committee, and I was rather disappointed to find that he had not put anything down for Report stage. So I have put the amendment down a second time. I should merely like to reiterate what I said in Committee. I suggest that stallions are more dangerous than bulls, certainly where child riders are concerned. I beg to move.
Baroness Masham of Ilton: My Lords, I should like to apologise to the House because I was abroad at the time of the Committee stage. In strongly opposing this amendment I have to declare an interest. I am the owner of four stallions and the biggest stud of Highland ponies in England. This is partly due to the unfortunate decision which was taken in Scotland a few years ago to dispense with the Highland pony stud which was run by the Ministry of Agriculture at Inverness. The noble Lord, Lord Houghton of Sowerby, spoke on this matter in your Lordships' House then.
The native breeds of our ponies are part of our natural heritage. They need conserving. I breed Highland ponies for the pleasure of the public who go riding and trekking to enjoy the countryside. With the massive increase in the price of petrol these ponies may now become a necessity for mobility in the rural areas, as they are ideal for both riding and driving. I speak against this amendment today also as president of the National Pony Society and as a vice-president of the Ponies of Britain. Both societies were dismayed when I discussed this amendment with them. Our native pony breeds consist of Dartmoor, Exmoor, New Forest, Welsh, Shetland, Highland, Dales and Fells. There is not big money in these studs, unlike the thoroughbred and show pony world. If this amendment is passed it may make life very difficult for the breeder of modest means.
These ponies are often kept in fields and enclosures on the edge of moors on hill farms. It is unwise to keep a stallion in a field next to the road. The rest of the suitable fields might have a bridleway or public footpath running through them. So what do they do then? Breeders who own stallions have a great deal with which to contend. They have to license the stallions at two years old, which is now expensive. They have to contend with the general public who are sometimes very irresponsible and leave gates open and metal can lids, tins and bottles all over the place which are dangerous to animals. If there were no stallions there would be no animals for the general public to ride and enjoy themselves on. Stallion owners ought to be helped, not hindered. People do not put their stallions in fields or enclosures with public paths or bridleways unless it is really necessary. The problem is that there are now so many public ways on the sort of permanent pastures which are good for ponies to graze. Native ponies are at risk on re-seeded pastures which are too rich and cause laminitis. The more suitable ground is poor and

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unsuitable for intensive farming.
Apart from owning stallions, I run a riding and trekking centre. We plan the rides carefully. I would not consider a ride going through a field with a stallion. That would be unwise. I suggest that if owners of stallions are unfortunate to have a field which has a right of way running through it where their stallion grazes, then the entrance and exit should be signed with a warning so that the public can avoid that route. I hope very much that the noble Lord, Lord Spens, will not press his amendment.
Lord Moyne: My Lords, I should like to support the noble Baroness in her opposition to the amendment. I should like to point out a very odd feature of the amendment. I do not think that byways can be "gated". If anyone left a stallion in a byway it might go to London!
Viscount Massereene and Ferrard: My Lords, I gave this amendment some support in the Committee stage. My noble friend Lady Masham of Ilton knows that it does not apply to hill-land or moorland. There are public roads going through hill-lands and moorlands and one can have, as I have, a herd of Highland ponies out with a stallion. One can have Exmoor ponies and Dartmoor ponies. This does not apply to them; as I understand it, it only applies to anyone turning out a single stallion or two stallions into a small enclosure or field which a public footpath crosses.
When I was very young I used to ride stallions at work. I used to ride three, or four-year old colts at racing stables. I came to the opinion that one was much safer on their backs than on one's feet! I agree that some stallions have very good temperaments. For instance, I mentioned in Committee Arab stallions, but the Hansard writers, through my incoherence, got it all wrong. I said that you never geld the Arab male horse; you ride him as a stallion as they do all over Africa and the Middle East, because he has a very good temperament. They are an exception. Some stallions, especially thoroughbred stallions, can be very nasty.
I would not support this amendment tonight 100 per cent., because I do not think that it is worded correctly. I think, for instance, that when one talks about fields or enclosures one should define the area. One can have an enclosure of 1,000 acres. There ought to be a definition of the area like, for example, five, eight or 10 acres. If we do not have that, I think that it would be absurd to have this as law. I am sorry slightly to disagree with my noble friend Lady Masham because we are both connected with the Ponies of Britain. Nobody who had a vicious stallion would turn it out where there was a public footpath going across a small field, although some people are very foolish. That is just my opinion on this amendment; I cannot support it in its present form.
Lord Burton: My Lords, since the Committee stage I have carried out a good deal of research on this amendment. Noble Lords may wonder why I have such an interest in this particular matter. I have been a district commissioner of the Pony Club for 14 years and naturally, as such, I am most interested in the safety of children riding and also in the welfare of ponies. My researches have revealed that the breed societies
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have not been consulted on this amendment. Indeed, I gather that such a proposal could virtually end the New Forest breed. There are between 100 and 120 stallions loose in the New Forest every year and, of course, there are hundreds, perhaps even thousands, of people riding among them. I gather that there has been more trouble with the mares in the forest than with the stallions in recent years, although I may say that in both cases the trouble has been negligible.
The Highland Pony Society, which I consulted, was totally opposed to and knew nothing of this amendment. The noble Baroness, Lady Masham, has many Highland ponies and she will know more about the Highland Pony Society than I. The Shetland Pony Society was horrified at any such suggestion, and the chairman said that if it were implemented, the proposal could possibly be ruinous to their society. The National Pony Society—which, after all, is the body which looks after all these breed societies—also knew nothing of the amendment. As the chairman of this society sits on the British Horse Society Breeds Committee, she was able to confirm that the British Horse Society Breeds Committee had not considered this amendment and certainly would have opposed it.
Thus, noble Lords will see that equestrian opposition ranges the whole length and breadth of the country, from North to South. It seems that the brief to the noble Lord, Lord Spens, has come from the British Horse Society Rights of Way Committee, having been drafted by a largely non-equestrian body, the Central Rights of Way Committee. My local British Horse Society representative also knew nothing of this amendment. It therefore seems that the British Horse Society is split down the middle and that further consideration should be given to the amendment.
I think that the noble Lord, Lord Spens, would agree that this amendment would have little effect on blood stock. My noble friend Lord Massereene mentioned blood stock, but I think I would be right in saying that such valuable animals are not left out in fields in such circumstances as they are too valuable. Therefore, this amendment would apply mainly to the pony breeders who are the people most concerned and who are most opposed to this amendment.
I should like to raise one further point. The amendment refers to an enclosure. The noble Lord, Lord Melchett, has just mentioned the question of enclosures, and I think that this term is totally unsatisfactory. There is nothing which specifies what is and what is not an enclosure, and there is nothing which says what the acreage or hectareage—whatever you like to call it—should be. This matter arose recently in regard to deer and the information given was that what was an enclosure or what was not had never been tested in the courts. It could be argued that all land in the United Kingdom is enclosed sooner or later. In view of the above, I hope that the noble Lord will withdraw his amendment. I hope that the British Horse Society will give further thought to the matter.
The Earl of Avon: My Lords, I have very little to say from this Bench, except that I ought to add that we have had the opportunity of considering representations that the Spicer Committee has made on the subject, and that committee apparently holds the view that riders can be subject to considerable risk where,

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for example, a mare is being ridden on a bridleway and a stallion is encountered. But I shall leave it to the noble Lord, Lord Spens, to draw his own conclusions.
Lord Spens: My Lords, I was expecting the attacks that I received and I had, in fact, consulted the British Horse Society this afternoon about them. Its reply was that this has been its policy since 1978. Therefore, I do not quite understand why the breed societies have heard nothing about it. There must be a failure of communication there. However, I think that we must allow the British Horse Society to clear up its own internal worries on this, and it can of course always bring forward amendments in another place. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.35 p.m.
The Earl of Avon The Earl of Avon moved Amendment No. 174C:
After Clause 48, insert the following new clause:
("Ploughing of public rights of way
.—(1) Section 134 of the Highways Act 1980 (ploughing of footpath or bridleway) shall have effect subject to the amendments provided for by subsections (2) to (9).
(2) Subsection (3) (7 day's notice of intention to plough) shall be omitted.
(3) In subsection (4) (duty to restore surface of footpath or bridleway), for paragraphs (a) and (b) there shall be substituted the following paragraphs—

"(a) not later than 3 weeks from the time when the occupier began to plough the footpath or bridleway, or

(b) if prevented from doing so by exceptional weather conditions, as soon as practicable thereafter,".

(4) In subsection (5) (failure to comply with subsection (3) or (4)) the words "(3) or" shall be omitted, for paragraphs (a) and (b) there shall be substituted the words "to a fine not exceeding £200" and for the words "subsection (4)", in the second place where they occur, there shall be substituted the words "that subsection".
(5) After that subsection there shall be inserted the following subsection—
"(5A) A person who ploughs any footpath, bridleway or other highway otherwise than in the exercise of a right to plough it shall be guilty of an offence and liable to a fine not exceeding £200 "."
(6) In subsection (6) (enforcement of subsections (3) to (5)) for the words "subsections (3) to (5) above as respects any footpath or bridleway" there shall be substituted the words "subsections (4) to (5A) above as respects any footpath, bridleway or other highway".
(7) In subsection (7) (proceedings by parish or community councils) after the words "subsection (4)" there shall be inserted the words "or (5A)".
(8) In subsection (8) (power of competent authority to restore surface of footpath or bridleway) for the words "footpath or bridleway" there shall be substituted the words "footpath, bridleway or other highway".
(9) In subsection (10) (competent authorities for the purposes of subsections (8) and (9)) for the words "footpath or bridle-way", in both places where they occur, there shall be substituted the words "footpath, bridleway or other highway".
(10) In section 135(1) of the said Act of 1980 (temporary division of footpath or bridleway ploughed up under section 134) the words "6 or" and "6 weeks or" shall be omitted.")
The noble Earl said: My Lords, with the leave of the House, I should like to speak to both Amendment No. 174C and Amendment No. 180D. When the noble Lord, Lord Underhill, moved his Amendment No. 553 at Committee stage on 19th February (cols.
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857–8), he referred to a letter sent two days previously to the Secretary of State setting out a number of points of agreement reached by the Spicer Committee concerning ploughing of public rights of way. He asked the Government to consider the agreement carefully and bring forward some kind of amendment at Report stage. In reply, I said that we would certainly be willing to consider suitable amending legislation but that we wanted time to digest the proposals and to be satisfied that the amendments were generally acceptable.
Two of the proposals in the Spicer Committee's letter of 17th February relate to extension of the definition of ploughing to include the breaking up of the surface of the right of way by any mechanical means, and the definition of the "making good" of a path after ploughing. Neither of these proposals was contained in the noble Lord's previous amendment and, as it is evident from further discussions of the Spicer Committee and views expressed elsewhere that there are major reservations on these aspects, we have not included in our amendment any changes on these items.
Three of the proposals contained in the noble Lord's previous amendment and in the Spicer Committee's 17th February letter appear to be generally acceptable, and the Government's amendment implements them. These are, first, the abolition of the requirement for farmers and landowners to give notice of their intention to plough paths—this will relieve farmers and highway authorities of time-consuming paperwork—and secondly, the extension to cover all highways of the power held by highway authorities to reinstate, and recover their costs in doing so, footpaths and bridle-ways which have been illegally ploughed. Thus unmetalled trackways with the status of roads used as public paths, byways open to all traffic and unmetalled country roads would be covered. Thirdly, it is proposed to make it an offence to plough any highway other than in the exercise of a right to plough, whether granted under the Highways Act or not. This would enable prosecutions to be undertaken where headland paths or unmetalled trackways such as byways are ploughed.
The second and third proposals to which I have just referred also implement the recommendations of the Countryside Commission in its letter of 23rd May 1980, following the green lanes study, and will, we hope, assist in the preservation of green lanes.
While on the subject of prosecutions, I think I should mention at this stage that the Spicer Committee were not agreed on a proposal that the power to prosecute for failure to restore paths after ploughing should be extended to individual members of the public—at present only authorities, including parish and community councils, have such a power. This proposal is strongly opposed by the farming and landowning interests, and we have not included such a power in our amendment.
Finally, the Spicer Committee were not agreed on the timescale for reinstatement of ploughed paths. Various proposals have been discussed, including reinstatement on the day of ploughing, but we believe that there will be many instances where this would not be practicable. Where, under the existing legislation no prior notice of intention to plough has been given, reinstatement is required to be carried out within three weeks from the time when the occupier began to plough

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the path or way. This was the period provided for in the noble Lord's previous amendment, and we have decided to legislate on this basis, but with an "exceptional weather conditions" proviso. My Lords, I commend all these proposals to your Lordships. I beg to move.
Lord Melchett Lord Melchett moved Amendment No. 174D as an amendment to Amendment No. 174C:
In subsection (3) leave out paragraphs (a) and (b) and insert—
("as soon as practicable and in any event not later than 3 weeks from the time when the occupier began to plough the footpath or bridleway").
The noble Lord said: My Lords, in general the amendment moved by the noble Earl, Lord Avon, is very welcome, because, as he said, it implements the discussions which the Spicer Committee have had on this subject. However, my understanding of the time-scale for restoration, from somebody who was present at the Spicer Committee discussions on this matter, is rather different from the noble Earl's.
My understanding is that the Spicer Committee's Rights of Way Committee agreed, on the advice of the local authority representatives present, that restoration after ploughing should take place on the same day as ploughing, except in the occasional case when this proved impracticable.
It is clearly valuable—as the Government amendment does—to get rid of the requirement for farmers and landowners to give prior notification of ploughing of public rights of way because that has proved to be totally impracticable and unenforceable so far as local authorities are concerned, and the Govermnent's amendment does that. But, as it were, the quid pro quo for this, as the user groups saw it, and also in the interests of local authorities, was that the provisions for restoration should be made enforceable, so that local authorities were not first asked to enforce the notification procedure which was unenforceable; but, secondly, they should be asked to enforce a restoration procedure which was enforceable.
It was generally accepted that what would be most sensibly enforceable would be a requirement to restore on the same day as ploughing with a let-out clause which allowed for such things as a sudden snowstorm, or a tractor breaking down, or a river bank bursting and the field being flooded when the tractor driver was in the middle of ploughing it; except for exceptional circumstances like that, which might be allowed to run for three weeks, that in general restoration should take place on the day of ploughing.
This also seems from the farmers' point of view the most sensible procedure. If somebody ploughs a field with a public right of way the sensible thing to do when the ploughing is finished, or ploughing for that day is finished, is to run the tractor along the line of the right of way and restore it in that way. It is normally done nowadays by running a tractor wheel along the right of way and leaving a smooth surface for someone to walk on. The only circumstances I can envisage where that would be difficult, or impossible, are when the tractor breaks down when somebody is half-way through their ploughing or the really appalling weather that suddenly closes in before there is time to restore it, like a snowstorm, or there is a sudden flood. In those circumstances, it might well be reasonable to have a period of
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three weeks where somebody can put things right.
I do not think this implements the Spicer Committee recommendations. I should be interested if the noble Earl can confirm to me that local authorities are happy with what is in the amendment in that they think it is enforceable. It seems to me to be a nightmare from the point of view of enforcing it. How are they going to know how exceptional the weather has been? How exceptional has it got to be to prevent reinstatement? The Government have misunderstood what the local authorities wanted on the Spicer Committee, which was the same day restoration, except in exceptional circumstances where the existing three week period should remain. I hope that the Government will think about this point again. I beg to move my amendment, which would put this right.
Viscount Ridley: My Lords, may I say a word on Lord Melchett's amendment? It seems to me he was speaking purely from the experience of an East Anglian farmer on light land, which they have in Norfolk. In heavy clay this winter it has not been possible to move on the soil for at least six months, and it is now wetter than it ever was. The exceptional weather subsection which the Government have proposed must be allowed, otherwise far more damage can be done by trying to restore a footpath than in leaving it alone.
Lord Melchett: My Lords, if it has been impossible to move on the land, it has been impossible to plough the land. Normally when the land is ploughed it is then possible the same day that a tractor has been out ploughing to run over it and restore the footpath.
Viscount Ridley: My Lords, the noble Lord seems to have even less experience of farming on clay than I thought he had. It is not possible. Having ploughed, you then have to leave it for the winter to dry out in March. If he would like to come and walk on my soil, I will show him what he needs. I would be the last to excuse anyone from ploughing out a footpath, but we really should allow subsection (3)(b) in the Government's amendment in the interests of the good management of footpaths.
Viscount Bridgeman: My Lords, speaking for another part of England, I should like to support what my noble friend Lord Ridley has said. In my part of the Welsh border for a couple of months it has been impossible to get anybody on the land. If we had started to plough the footpaths one day, we should still be waiting.
The Earl of Avon: My Lords, I must first say to the noble Lord, Lord Melchett, that it is clear we all agree that after ploughing it is preferable to reinstate on the same day. He asked me about the Spicer Committee. I gather that that committee was not agreed on the timescale for the reinstatement of ploughed paths. Under existing legislation, farmers and landowners are required to restore a ploughed path not later than six weeks from the date of giving notice of intention to plough or, where no notice is given, not later than three weeks from the time the farmer began to plough the path.
Following the decision to omit the requirement to give prior notice, we considered it was reasonable to

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require restoration within three weeks in most circumstances, but that there needed to be provision for dealing with cases where restoration within the three week period was prevented by exceptional weather conditions. The noble Lord explained that his amendment seeks to remove the "exceptional weather conditions" provision. Although these conditions would have to be "exceptional" and not merely just "inclement", they need to be catered for and we feel they are eminently reasonable. I hope that, on reconsideration, the noble Lord will feel able to withdraw the amendment.
Lord Melchett: My Lords, would the noble Earl answer the question I explicitly asked him? Are the local authority representatives on the Spicer Committee happy with what the Government have proposed? My information is that they thought it would be totally unenforceable.
The Earl of Avon: My Lords, I gather they were not happy, but I understand other parties were not happy, either.
Lord Melchett: I hear some of my noble friends saying it is a compromise, my Lords, in that nobody is happy, but I do not think it is. At present farmers are required to reinstate the path within three weeks and there is no excuse for wet weather or anything else. That is the position now, and the only reason why anybody suggested changing that to the time from when you plough—it is six weeks from when you give notice, but you have to give three weeks' notice of ploughing, so it is a bit of a red herring; under the existing law, three weeks from when you plough you must restore the footpath, and no excuses—is that local authorities found it unenforceable. They said, as I understand the position, that the most sensible thing would be that in almost all cases somebody should restore the footpath the day it is ploughed. The noble Viscount, Lord Ridley, says I know nothing about farming on clay. I should have thought that if the land was dry enough and suitable to be ploughed, be it heavy or light soil, it should be possible to run a tractor over the top of the land once you have ploughed it.
Viscount Ridley: That is not so, my Lords.
Lord Melchett: My Lords, if that is not the case then the exceptional weather conditions or some let-out would be available. But it still does not meet the argument I am trying to make; namely, that there should be a provision for restoration which the local authorities are satisfied is enforceable, and I am surprised the noble Viscount does not agree with that. This House should not be approving something which we are asking local authorities to enforce if they think it is not enforceable. After all, they are the people who have to enforce it. I should be happy with a provision which said farmers should restore a path on the day they plough it except in exceptional circumstances, whereupon they should do so within a set period, and I should have thought three weeks would be enough because it has been three weeks by law up to this moment.
Are the Government prepared to look at this again? It does not seem satisfactory to have gone to all the
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trouble to get the Spicer Committee to look at the matter at the instigation of the local authorities to change something and then to change it to something that will be even less enforceable than what the local authorities started out with. That cannot be reasonable. I am prepared to accept that my amendment is not right and that it would be useful to have provision for exceptional weather, but surely it would be sensible for the Government to try to agree with the local authorities some provision which the authorities accept as enforceable.
I do not see any point in putting something into law which will be even less enforceable than the current position, which is what the Government appear to be doing. I therefore hope the noble Earl will agree to go back and discuss this with the local authority representatives on the Spicer Committee with a view to getting something that is enforceable, and if he will do that I will be happy to withdraw the amendment. Can the Minister give me that assurance?
The Earl of Avon: My Lords, I do not understand what the noble Lord is getting at, because in his own amendment he refers to a period of not later than three weeks. He has just said that he would be quite happy to have a proviso about bad weather. I informed him that the Spicer Committee could not agree on this matter, in any case, and so I am not quite sure that I can give an undertaking to make the committee agree in the future.
Lord Melchett: My Lords, I may not be making myself very clear, but what I am getting at is that subsection (3)(a) of the Government's amendment, in regard to the restoration of footpaths, should not state "not later than three weeks", but rather
"… wherever practicable on the day that it is ploughed".
My understanding is that that is a provision which the local authorities felt would be enforceable. Then there should be provided an excuse, as there is in paragraph (b) relating to exceptional weather conditions, but that should be limited in time. If it is not, my understanding is that the local authorities feel that it would be unenforceable. After all, it could be claimed that exceptional weather conditions might last for months and months, and that would be far worse than the current position where there is a three-weeks limit. That is what I am getting at.
I do not wish to detain the House for a long time, but this is an important matter of principle. The Government said that they were to implement the recommendations of the Spicer Committee, and I feel that they have not done so. I have made myself clear to the noble Earl. If he will indicate by nodding that he will at least look at this point, and convey what I have said to the local authority representatives on the Spicer Committee, and see what is their reaction, then I should be happy to withdraw the amendment. I do not think that I am asking for very much from the noble Earl. I simply want him to convey this point to the local authority representatives on the Spicer Committee and let me know of their reaction. If he would agree to do that, I should be happy to withdraw my amendment.
Lord Burton: My Lords, could not the proposal read:

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"As soon as possible, but not later than three weeks"?
Would not that meet all parties?
Lord Melchett: My Lords, did the noble Earl indicate that he would do as I asked? I gave way to him, and then to the noble Lord, Lord Burton, rather than proceeding to withdraw the amendment, but I am prepared to press it. I feel that I have made a very reasonable request to the noble Earl—simply to convey the point to the local authority representatives, and see what is their reaction. I hope he will agree to do that. If the noble Earl nods to me, I need not give way to him again, but I shall give way to him if he wishes.
Lord Renton: My Lords, I think that the conditions which at present prevail in East Anglia show that the amendment of the noble Lord, Lord Melchett, is really quite impracticable, if I may say so, with respect. Consider the position of a farmer who might have ploughed up in mid-February. If he were expected now to reinstate the land, in its saturated state, it would be found that that simply could not be done.
The Earl of Avon: My Lords, if the noble Lord wishes to press the amendment, rather than come back to it on Third Reading, I shall look into it, but I cannot give any undertaking that I can meet the noble Lord's point. I must say that I really do not feel that I can give an undertaking on it.
Lord Melchett: My Lords, I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
Lord Monk Bretton: My Lords, I wish to speak very briefly to Amendment No. 174C, if I may. First, I wish to welcome most sincerely the abandonment of the need to give notice of intention to plough a path. I am sure that we gave the Spicer Committee no end of an agenda after our Committee stage, and we should congratulate it on the enormous amount of work which it must have been doing.
I wish to make only one point about Amendment No. 174C. I do not think that subsection (3)(b) is drafted quite as widely as might be desired. I gather that farmers would favour after the phrase "exceptional weather conditions", the addition of the words, "or other exceptional circumstances". I understand that what farmers envisage here are circumstances such as the outbreak of animal disease, illness of a sole occupier or worker, the need to attend to a sick relative, et cetera. This might occur near the end of a period where conditions were ripe, and it is a point which I would feel ought to be put forward at this stage.
10.55 p.m.
Lord Spens Lord Spens moved Amendment No. 176A:
After Clause 48, insert the following new clause:
("Power to require removal of electric fences
.—(1) Where on land adjoining a bridleway there is an electric fence which in the opinion of the local authority for the area is a danger or annoyance to persons using the bridleway the local authority may by notice in writing to the occupier of the land require him within a period of not less than one month from the date of service of the notice to take such action as may
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be necessary to remove the cause of the danger or annoyance.
(2) A person aggrieved by a requirement of a local authority under the foregoing subsection may appeal to a magistrates' court which may dismiss or allow the appeal or may make such order as it thinks fit.
(3) Subject to any order made on appeal, if a person on whom a notice is served under subsection (1) of this section fails to comply with it within the period specified in the notice the local authority may carry out the work required by the notice and recover the expenses reasonably incurred by them in doing so from the person in default.
(4) For the purposes of this section "electric fence" means a fence capable of carrying a current of live electricity.")
The noble Lord said: This amendment about electric fences was also discussed in Committee and at that time it was drafted as an amendment to the Highways Act 1980. The noble Lord the Minister rightly said that the Wildlife and Countryside Bill had nothing to do with the Highways Act and he could not accept it. So I said that we would take it away. The British Horse Society had another look at the amendment and they have redrafted it to become a clause in this Bill and they have also reduced its scope by confining it to bridleways, whereas previously, as the noble Lord, Lord Monk Bretton, pointed out, it referred to highways, which will include footpaths—and that is going too far.
What we are asking is that, if an electric fence bordering a bridleway is a danger or an annoyance to persons riding on that bridleway, the local authority shall have the power to serve a notice in writing to the occupier to take the fence down. I did not mention in Committee that we are all the more worried now about electric fences and their effect on horses because quite a number of electric fences are now being connected to the mains. Although, obviously, transformers are in use to reduce the voltage, there is no doubt that these fences are being used now to give a much larger shock to the animal than that from a battery. As I said in Committee, the horse, unlike the cow, is a thin-skinned animal and it is very often iron shod, so the shock from the electric fence will be much more severe and could be quite dangerous in the case of a child rider. I beg to move.
Lord Stanley of Alderley: My Lords, I hope my noble friend will not accept this. The equivalent law on barbed wire does not work well. Cases arise where a walker's loose coat flaps on to the wire; he has heard that this is illegal; he complains; the authority sends out an abatement letter, usually without even being able to check the facts or view the site. It is costly, bureaucratic and a legal tangle. If a fence is an obstruction it should be prosecuted as such. The amendment is unnecessary and it will encourage aggravation between farmers and walkers.
Lord Spens: My Lords, the walker does not come into this. It is between farmer and rider and it deals only with bridleways, not footpaths.
Lord Stanley of Alderley: My Lords, bridleways may be walked down by walkers. As I pointed out earlier, if the bridleway becomes rutted the walker is inclined to go to the side. I also said "rider". I would remind your Lordships that you are taking a walk or a ride in the country and not in Parliament Square. The noble Lord, Lord Spens, did not tell your Lordships which

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ection of the British Horse Society supported this one and which section did not.
Baroness Masham of Ilton: My Lords, before the noble Earl answers, may I ask whether it is really so that electric fences are connected to the mains? It sounds rather dangerous and frightening for anybody.
The Earl of Avon: I shall leave that rather technical question to the noble Lord, Lord Spens. My own reading is the same as that of the noble Baroness: they should not be so connected.
I have listened carefully to the comments but I do not feel that this is a problem which warrants new legislation. The Government accept what has been said about the effect on horses if they come into contact with electric fences; but we have not seen or heard any evidence to indicate that electric fences cause a serious problem to horses and their riders on bridleways. Bridleways are usually of a reasonable width and these fences are usually clearly visible. It is surely up to the rider to keep his horse away from a fence, and for young people who are learning to ride horses to be trained so to do. If this legislation is passed, it will mean that local authorities will feel obliged to investigate cases in which it is alleged that danger or annoyance is being caused by an electric fence alongside a bridleway. I do not think we should be imposing additional tasks without ample justification. The Government are not convinced that such justification exists in this case, and are therefore unable to support the amendment. As my noble friend pointed out, where an electric fence is causing an obstruction to a right of way that is a different matter and can be dealt with under existing legislation. The Government feel that it is an unnecessary and additional piece of legislation.
Lord Spens: My Lords, I would not know the internal workings of the British Horse Society but they briefed me on this and it is they who say that they have quite a number of instances of accidents occurring as a result of contact with electric fences. I have a letter which draws my attention to the fact, saying that what makes the amendment so necessary is the probable increase in the use of permanently-sited mains-electric fencing. This gives a sharper shock than the portable battery-powered fences now used. Mains-electric fencing is happening. It is a particular danger to horses because they are thin-skinned animals, are iron shod and are often sweating. Therefore, they are much more susceptible to electric shock. However, the Government do not appear to be interested in the amendment at the moment. I shall send it back to the British Horse Society with the suggestion that they get it taken up in another place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 176B:
After Clause 48 insert the following new clause:
("Appointment of wardens for footpaths and bridleways
. A local authority may appoint such number of persons as appear to the authority to be necessary or expedient to act as wardens as respects a footpath or bridleway which is both in the countryside and in the area of the authority, and the purpose for which wardens may be so appointed is to advise and assist the public in connection with the use of the path or way.")
The noble Baroness said: My Lords, I moved two
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amendments in Committee about appointing wardens. The first was accepted. I understood that the second one was going to be accepted but no amendment has appeared from the Government. Could I have a nod from the Front Bench opposite if this is going to be accepted? I beg to move.
The Earl of Avon: My Lords, I do not need to say more than we accept this amendment.
Lord Melchett Lord Melchett moved Amendment No. 176C:
After Clause 48 insert the following new clause:
("Restoration of eroded footpaths and bridleways
. When a footpath or bridleway ceases to exist due to natural causes, it shall be a duty of the highway authority to restore the continuity of the path or way, either by creating by agreement or order a new highway or by reconstructing that part of the highway which has ceased to exist, except where the physical circumstances make such restoration of the continuity impracticable.")
The noble Lord said: My Lords, we discussed this amendment in Committee. We come back, restricting it to footpaths and bridleways because the Government have objected to it going any wider. The amendment would ensure that where a footpath or bridleway ceases to exist because of some natural erosion or other problem the highway authority would restore the continuity where that was practicable. We have altered the last couple of lines of the amendment to say that if the physical circumstances made it impracticable there would not be a duty on the highway authority; for example, if continuing erosion or some other continuing problem made restoration impossible. That was a point that the Government made in Committee, and that is now met.
The noble Earl, Lord Avon, said at Committee stage that when a highway ceases to exist through natural causes it is clearly right that consideration should be given as to whether it ought to be replaced. But, as the law stands at the moment, there is no requirement for such consideration to take place, and I hope that this amendment will meet the noble Earl's wishes as well as those of noble Lords who spoke at Committee stage.
There is one serious problem which is worth mentioning and which we did not mention at Committee stage—that is, that what often happens when erosion takes place is that the public make their own way round the gap. Of course, that will often be to the detriment of the landowner or occupier, since people will be walking on land where there has not been a public right of way up to that point. So, by requiring the authority to take action, the landowner or occupier can if necessary be compensated for that inconvenience. It is a small point, but there did seem to be a good deal of support for it at Committee stage. I beg to move.
Lord Burton: My Lords, may I just ask what exactly is "impracticable"? If something is extremely expensive is that to be considered to be impracticable? I can understand that if something is going to be eroded again that would be impracticable, but what about cost?
The Earl of Avon: My Lords, I acknowledge that this amendment is more restricted in scope than the amendment which the noble Lord, Lord Underhill, moved during the Committee stage. Since that debate, the matter has been discussed by the Rights of Way

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Committee (the Spicer Committee) and I understand that strongly opposed views were expressed there.
I said in Committee that I thought it was debatable whether a highway authority should in all circumstances be obliged to replace or restore an eroded highway and quoted as an example land-slip where restoration or replacement was impossible or pointless, having regard to the continuing nature of the problem. That sort of case has to a certain extent been taken care of by the proposed exception now included in the amendment, which I expect the noble Lord will be explaining to my noble friend. There will, however, be other cases in which restoration would not, I think, be reasonable, such as the existence of a nearby path, providing an adequate alternative route.
Where public paths along cliffs or river banks are lost by erosion, and this has the effect of path-users having to make long detours, I believe that authorities would normally give sympathetic consideration to using the powers they already have to create new paths by agreement or order, but I do not think that it should be made obligatory. This is, of course, in line with this Government's philosophy that local authorities' statutory duties should be lessened rather than increased. In the circumstances, I hope that the noble Lord will agree to withdraw his amendment. I am sure that he will take those views into account.
Lord Melchett: My Lords, to answer the noble Lord, Lord Burton, the intention of the word "impracticable" was to ensure that where it would be unreasonably expensive for one reason or another it would not be necessary for the authority to restore the path, and I can see that the drafting could be improved at that point. I would be quite happy with "impracticable" or "unreasonable" and I think that the concept of unreasonableness is one which is understood by the courts which would have to decide this.
It is not a major point, but I do think there are considerable advantages for landowners in this, in that, where paths become eroded, it is almost inevitable that the public will simply move to one side or the other and it would be helpful from the point of view of both the user and the landowner if the authority had a requirement to restore, or, if not, to provide an alternative which would allow the landowner some compensation. But, if the Spicer Committee could not reach agreement, I suppose we should not press it. On the other hand, when they do reach agreement it seems the Government are not prepared to implement that either; so we all find ourselves in difficulties either way. However, I do not want to prolong the matter now. I hope that the Spicer Committee may be able to have another look at the point and reach some agreement on what seems to be a minor but helpful matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.7 p.m.
Lord Melchett Lord Melchett moved Amendment No. 176D:
After Clause 48, insert the following new clause:
("Decision by appointee of Secretary of State
.—(1) The Secretary of State may arrange for all decisions to which this section applies, or any class of such decisions or any one such decision, to be made by a person appointed by him for the purpose instead of by himself, and a decision made under this section by a person so appointed shall be treated as a decision of the Secretary of State.
(2) This section applies—

(a) to a decision on an appeal to the Secretary of State under section 29 of the 1949 Act (draft maps and statements) or the proviso to section 33(5) of that Act (revised maps and statements);

(b) to a decision on a representation or objection made to the Secretary of State under paragraph 4 of Part II of Schedule 3 to the 1968 Act (drafts of revised maps and statements);

(c) to a decision on an opposed draft order prepared by a surveying authority under sections 39 or 40 of this Act;

(d) to a decision on an opposed draft order prepared by an authority under section 210 or 214(1)(b) of the Town and Country Planning Act 1971 (rights of way affected by development);

(e) to a decision on an opposed draft right of way extinguishment order prepared by an authority under section 3(1) of the Acquisition of Land (Authorisation Procedure) Act 1946;

(f) to a decision on an opposed draft public path creation order, public path extinguishment order or public path diversion order prepared by an authority under section 26, 118 or 119 of the Highways Act 1980.

(3) Accordingly section 29(6) and proviso (c) to section 33(5) of the 1949 Act, paragraphs 4 and 5 of Schedule 12 to this Act, paragraph 3 of Schedule 20 to the Town and Country Planning Act 1971 and paragraph 2 of Schedule 6 to the Highways Act 1980 shall so far as they require the Secretary of State to give any person an opportunity of being heard, have effect in a case where a person is appointed to make a decision under this section as if they required the person appointed to give that opportunity.
(4) The Secretary of State may terminate or vary any arrangement made under subsection (1) above and, in particular, he may appoint a different person to make a decision under this section instead of the person first appointed to make it.
(5) Where by virtue of subsection (4) above a particular decision falls to be made by the Secretary of State or any other person instead of the person first appointed to make it, anything done by or in relation to the latter shall be treated as having been done by or in relation to the former.")
The noble Lord said: My Lords, this goes with the other long list. I beg to move.
Clause 55 [Minor amendments]:
The Earl of Avon The Earl of Avon moved Amendment No. 177:
Page 44, leave out lines 28 to 30.
The noble Earl said: My Lords, this amendment is consequential on Amendment No. 167ZA, which has been accepted. I beg to move.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 177ZA:
Page 44, line 40, after ("1949") insert (", sections 4, 5, 10, 11, 15, 21, 22, 23, 24, 25,").
The noble Lord said: My Lords, this follows an amendment which was moved in Committee by my noble friend Lord Middleton, and we have taken note of the Government's criticisms of it. This amendment would ensure that the clauses mentioned in the amendment would be subject to Section 37 of the Countryside Act 1968, which obliges a Minister, the Nature Conservancy Council, the Countryside Commission or the local authority to have regard to agriculture. Parts II and III of this Bill already carry this obligation and this merely puts it into those clauses. I hope that the Government will accept this amendment, so I shall not elaborate at this stage any further, unless they say, No. My Lords, I beg to move.
The Earl of Avon: My Lords, as I said at the Committee stage, we did not include Parts I and IV of this Bill in our amendment to the 1968 Act, because the Government thought that there was little or nothing to be gained by so doing. This, in point of fact, is still our view. Of course, we accept that Ministers need to bear in mind all aspects of Government policy when taking decisions and this would happen whatever was written into the Act. What we would not expect is that the NCC, in relation to those judgments which are purely scientific concerning species, should confuse their advice by reference to other matters. However, in view of my noble friend's arguments, I will undertake to give further consideration to the possibility of tabling an amendment at the Third Reading.
Lord Stanley of Alderley: My Lords, I see. I am not sure whether or not my noble friend is accepting this amendment. If not, I shall have to delay the House. Is he accepting? If he nods his head, I shall of course withdraw the amendment at this stage. He is nodding. Then I beg leave to withdraw the amendment.
Amendment by leave, withdrawn.
The Deputy Speaker (Lord Aberdare): My Lords, if Amendment No. 177A is agreed to, I cannot call Amendments Nos. 178 or 179.
Lord Melchett Lord Melchett moved Amendment No. 177A:
Page 45, line 1, leave out subsection (6) and insert—
("(6) Section 22 of the Water Act 1973 (duties with regard to nature conservation and amenity) is amended as follows—

(a) in subsection (3) the words "not being land for the time being managed as a nature reserve" shall be omitted; and

(b) after subsection (3) there shall be inserted the following subsections—

"(4) In the performance of its functions under this or any other enactment a water authority shall consult the Nature Conservancy Council before undertaking, or giving permission to others to undertake, any schemes, operations or activities which might affect the special interest of any area of land to which subsection (3) applies.
(5) Subsection (4) shall not apply to any emergency operation particulars of which (including details of the emergency) are notified to the Council as soon as practicable after the commencement of that operation.
(6) References in this section to water authorities shall include references to internal drainage boards and the reference in subsection (3) above to the water authority in whose area the land is situated shall include reference to the internal drainage board in whose district the land is situated.".").
The noble Lord said: My Lords, I do not intend to press this amendment, because I warmly welcome Amendment No. 179, which the Government have tabled to meet a point which we raised at Committee stage. I should just briefly like to ask for the Government's comments on the points which I have raised in Amendment No. 177A, which are another attempt to ask the regional water authorities, in particular, that consultation takes place between the Nature Conservancy Council and the water authorities, where work is being done which affects sites of special scientific interest or areas in which the NCC are particularly interested. I shall not delay matters any further. I am sure that the Government understand the effect of the amendment and I really am interested in hearing their response, after which, as long as the response is
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reasonably adequate, I shall be happy to withdraw it and let the Government move Amendments Nos. 178 and 179. My Lords, I beg to move.
The Earl of Avon: My Lords, in part this amendment is designed to place the same conservation obligations on the inland drainage boards as already apply to the water authorities under Section 22 of the Water Act. That was the purpose of our Amendment No. 178, which, as the noble Lord has kindly said, is acceptable.
The other purpose of this amendment is to add to the conservation obligation in Section 22. The water authorities would be obliged to consult the NCC before they undertake, or permit any schemes, operations or activities which might affect the special interest of any area to which Section 22(3) of the Water Act 1973 applies, except in the case of emergency operations. That obligation would be a counterpart to the requirement which already lies on the NCC in Section 22(3), to notify the water authority of areas that are of special interest and which may be affected by the authority's schemes, operations or activities. What is suggested, therefore, is requiring the water authority, when notified by the NCC, to consult the NCC before going ahead with a proposal, except in emergencies. That is not an objectionable idea to the Government and we will consider the amendment.
Lord Renton: My Lords, I wonder whether my noble friend Lord Avon could say this: when a water authority has been notified by the Nature Conservancy Council, will there be any obligation upon it to take such steps as are indicated by the Nature Conservancy Council to avoid damage of a kind, for example, like lowering the water table which would affect the vegetation upon which wildlife depends? Would it oblige the water authority to avoid damage to the banks of watercourses where kingfishers are known to make their nests, and so on? Or will in fact the water authority always have the last word, despite any notice given to the water authority by the Nature Conservancy Council?
Lord Melchett: My Lords, I think I can answer the noble Lord's question. It might speed things up; because then I can go on to withdraw the amendment. The fact of the matter is that water authorities do not at the moment even have to discuss their proposals with the Nature Conservancy Council, let alone take any notice of anything which the Nature Conservancy Council might say to them. The effect of the amendment still would not be to require water authorities to take any notice of what the Nature Conservancy Council says to them, but it would at least ensure that consultation takes place. This happens in the case of some water authorities but not others. The Government have accepted the spirit of this amendment, for which I am grateful. It is another important step forward. With their next two amendments, which I welcome now in order to save me saying anything when we get to them, we have a very reasonable number of steps to resolve some of the problems which have arisen between nature conservationists and water authorities in a number of areas. I hope that the noble Earl will be in a position to bring forward the amendment which he has suggested the Government will

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consider by Third Reading. With that, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
The Earl of Avon The Earl of Avon moved Amendments Nos. 178 and 179:
Page 45, line 1, leave out ("section 22(3)") and insert ("subsection (3) of section 22").
Page 45, line 3, at end insert ("and after that subsection there shall be inserted the following subsection—
("(4) References in this section to water authorities shall include references to internal drainage boards and the reference in subsection (3) above to the water authority in whose area the land is situated shall include reference to the internal drainage board in whose district the land is situated."").
The noble Earl said: My Lords, I think I have already said sufficient on both amendments. I beg to move.
11.17 p.m.
Lord Melchett Lord Melchett moved Amendment No. 179A:
Page 45, line 3, at end insert—
("(7) In section 2(8) of the Countryside Act 1968 for the words "for encouraging a proper standard of behaviour on the part of persons resorting to the countryside "there shall be substituted the words" and for explaining to people visiting the countryside their rights and their obligations ".").
The noble Lord said: We had a fairly long discussion about this amendment in Committee and I do not intend to repeat any of it. The noble Earl very kindly wrote me a letter saying that the Government would put down an amendment reflecting the discussion which we had in Committee. They did not, so I have. I have changed the amendment from the one at the Committee stage in a sincere attempt to meet entirely the criticisms which were made of my amendment which we discussed then. A number of noble Lords and my noble friend Lady White felt that my amendment at the Committee stage did not accurately reflect the concept of there being a balance between the obligations and the rights of those visiting the countryside. I accept that my wording was open to misinterpretation. I hope that this amendment is not. As the Government said that they would be tabling an amendment and they have not managed to do so, I hope that this one will be acceptable to them. I beg to move.
The Earl of Avon: My Lords, we come back to our last discussion on much the same points as we have had quite frequently throughout the Bill. Although we have absolutely no objection to it, we do not think that the amendment is really necessary. It was argued that the phrase "a proper standard of behaviour" is a little old-fashioned. In view of this line of thought, we promised to look at it again.
We are, however, clear that the formulation in Section 2(8) of the 1968 Act is entirely adequate to permit the Countryside Commission to do exactly what is wanted. And I can give the House an assurance that, in their future publicity, the commission will invariably strive to achieve a balance between explaining the rights as well as the obligations upon the public when they visit the countryside. And they will certainly not overlook the importance of stressing
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that visitors should not do things which might upset or disturb the interests of local people.
Given this assurance, the only argument that remains for accepting the amendment is that it would improve the phraseology of the Act. While f do not necessarily disagree with that point of view, I wonder whether it is sufficient reason for a legislative change.
There is, moreover, a positive argument for retaining the existing wording; namely, that while it clearly embraces advice on both rights and obligations, it goes further and covers advice on the things that people ought to do, or which it is desirable for them to do, whereas the expression "rights and obligations" sounds as if it is only concerned with legal rights and obligations. I am sure that your Lordships will not wish to exclude advice on the former matters merely for the sake of emphasising the importance of advice on the latter. I leave the matter to the noble Lord. Obviously we do not feel very strongly about it, but those are our reasons.
Lord Melchett: My Lords, I think I ought to press this amendment because the noble Earl actually said to me, in a letter on 3rd March:
"Rights in the countryside. An amendment will he put down to reflect the discussion about 466"
—which was the debate we had at the Committee stage. There was widespread agreement that the wording was an anachronism. If my memory is right, I think the noble Lord, Lord Winstanley—he is not here to correct me, and I apologise if I am wrong—said that the Countryside Commission would be quite happy to see the wording changed and the Government would. I really think this is an improvement and it is sufficiently important to be worth making, and that seemed to be the view of those who spoke at the Committee stage. I should like to press this on the Government. Obviously if they think it can be improved when they come to look at the Bill, they will be able to do so.
Clause 56 [Repeals and savings]:
The Earl of Avon The Earl of Avon moved Amendment No. 179B:
Page 45, line 13, at end insert—
("(3A) The repeal by this section of paragraphs 22 to 33 of Schedule 17 to the Local Government Act 1972 shall not affect the operation of those paragraphs in relation to any survey or review begun before the commencement date.").
The noble Earl said: My Lords, Schedule 14 provides for the repeal of the transitional provisions in the Local Government Act 1972. These dealt with the consequences of local government reorganisation and the preparation and revision of definitive maps. This amendment is necessary to ensure that the repeal of these provisions is not disturbed by the continuation of anything already being carried out under these provisions at the commencement of the new procedure. I beg to move.
Schedule 14 [Enactments repealed]:
The Earl of Avon The Earl of Avon moved Amendment No. 180:

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Page 87, column 3, leave out lines 5 to 7 and insert ("Section 23").
The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 167ZA which has been accepted. I beg to move.
Lord Melchett Lord Melchett moved Amendments Nos. 180A and 180B:
Page 87, line 12, at end insert—

("1963 c. 36.

The Deer Act 1963.

In Schedule 2, in paragraph 1 the words "of less gauge than 12 bore" and in paragraph 4 the words from "other than" onwards.").

line 29, at end insert—

("1970 c. 30.

The Conservation of Seals Act 1970.

In section 10(1)(c), the word "or" immediately following sub-paragraph (ii)".).

The noble Lord said: My Lords, I beg to move Amendments Nos. 180A and 180B en bloc. These are consequential on amendments which your Lordships accepted last week.
Lord Bellwin Lord Bellwin moved Amendment No. 180BA:
Page 87, line 30, column 3, after (" 20 ") insert—

("in paragraph 1(2)(a), the words "in the London Gazette and" and").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Melchett Lord Melchett moved Amendment No. 180C:
Page 87, line 38, at end insert—

("1973 c. 57.

The Badgers Act 1973.

Sections 6 and 7.

Section 8(2)(c).

In section 11, the definitions of "area of special protection" and "authorised person".").

The Earl of Avon The Earl of Avon moved Amendment No. 180CA:
Page 87, line 39, column 2, at end insert ("Council").
The noble Earl said: My Lords, this amendment simply corrects an error in the reference to the Nature Conservancy Council Act 1973. I beg to move.
The Earl of Avon The Earl of Avon moved Amendment No. 180CB:
Page 87, line 39, column 3, at end insert—

("In Schedule 1, paragraphs 3, 5, 7 and 12(a) and (c).").

The noble Earl said: My Lords, this is consequential. I beg to move.
The Earl of Avon The Earl of Avon moved Amendment No. 180D:
Page 88, line 33, column 3, at end insert—

("In section 134, subsection (3) and in subsection (5) the words "(3) or".

In section 135(1), the words "6 or" and "6 weeks or".").

The noble Earl said: My Lords, this is consequential. I beg to move.
Clause 57 [Short title, commencement and extent]:
The Earl of Avon The Earl of Avon moved Amendment No. 181:
Page 45, line 29, after ("sections") insert ("Areas of special scientific interest)").
The noble Earl said: My Lords, this amendment is consequential on Amendment No. 167ZA which has been accepted. I beg to move.
In the Title:
Lord Melchett Lord Melchett moved Amendments Nos. 182 and 183:
Line 6, after ("amend") insert ("the Badgers Act 1973 and"). after ("amend") insert ("the Deer Act 1963, the Conservation of Seals Act 1970, the Badgers Act 1973 and").
The noble Lord said: My Lords, I beg to move Amendments 182 and 183 en bloc. These are also consequential on amendments we had earlier. I think it is nice to end the Report stage of the Bill on an all-party note, with the noble Viscount, Lord Ridley, and myself proposing Amendment No. 183, and also with amendments for which the Government gave us some very substantial drafting assistance—the amendments to the badgers, the deer and the seals Acts. I think noble Lords on all sides of the House were extremely grateful for the constructive way in which the Government responded to appeals from noble Lords of all parties and those who are not in a party at all—yet, anyhow. I should like to take this opportunity of thanking once again the noble Earl, Lord Avon, and his colleagues on the Government Front Bench for their at times sympathetic and at other times not so sympathetic but always courteous consideration of the many amendments with strange letters after them that they have had to consider during the Report stage. We are very grateful. I beg to move.
Viscount Ridley: My Lords, may I add my thanks to those of the noble Lord, Lord Melchett, in this respect? I am sure all noble Lords are deeply grateful to the Government.
The Earl of Avon: My Lords, may I on behalf of this Front Bench say how much we appreciate the help given by noble Lords on the Front Bench opposite and their supporters? I hope we have given a little bit away. I also pay a compliment to all my noble friends on this side who have helped to get the Bill through.

Sion College Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.