Wildlife and Countryside Bill [H.L.]

HL Deb 16 March 1981 vol 418 cc585-644

Further considered on Report on Schedule 12.

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—

1. (a) to show any particulars shown in the draft map and statement but not in the definitive map and statement; or
2. (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 Where representations or objections duly made and not withdrawn relate to some but not all of the modifications made by a draft order, paragraphs 3, 4 and 5 shall have effect as if not one but two draft orders had been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—

1. (a) the one comprising the modifications to which the representations or objections relate; and
2. (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 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 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 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. 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 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 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 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 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. 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 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 moved Amendment No. 173SCGC:

Page 80, line 38, leave out from ("given") to end of line 41 and insert ("—

1. (a) by publication in the manner required by paragraph 2(2)(a);
2. (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
3. (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 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 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 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—

1. (a) decide to complete his determination of any outstanding objections or representations; or
2. (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 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 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 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 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 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

1. (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;
2. (b) to reclassify a road used as a public path in accordance with section 42;
3. (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—

1. (a) the authority has notified the claimant that they do not propose to make the order, or
2. (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 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 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 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 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 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

1. (a) the availability of alternate routes, and
2. (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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) any person acting with the permission of the owner or occupier of the field or enclosure;
2. (b) any person on a right of way so long as the dog is—
1. (i) on a lead of reasonable length; or
2. (ii) under close control;
3. (c) any blind person; or
4. (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 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 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 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 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 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 moved Amendment No. 174ZBD:

Page 82, line 16, at end insert—

("(2A) In subparagraph (2) of that paragraph—

1. (a) in paragraph (a) the words "in the London Gazette and" shall be omitted;
617
2. (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—
3. "(c) by causing a copy of the notice to be displayed in a prominent position—
1. (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
2. (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 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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) by publication in at least one local newspaper circulating in the area in which the land to which the order relates is situated;
2. (b) by serving a like notice on—

1. (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;
2. (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;
3. (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—

1. (i) at the ends of so much of any footpath or bridleway as is created, stopped up or diverted by the order; and
2. (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 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 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—

1. (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;
2. (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
3. (c) cause like notices to be displayed in the like manner as the notices caused to be displayed under paragraph 1(3)(a) above;

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 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 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 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 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 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, 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 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—

1. "(a) not later than 3 weeks from the time when the occupier began to plough the footpath or bridleway, or
2. (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. 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 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 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 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 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 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: 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 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 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 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 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 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 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 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 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—

1. (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);
2. (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);
3. (c) to a decision on an opposed draft order prepared by a surveying authority under sections 39 or 40 of this Act;
4. (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);
5. (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;
6. (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 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 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 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—

1. (a) in subsection (3) the words "not being land for the time being managed as a nature reserve" shall be omitted; and
2. (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 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 consider by Third Reading. With that, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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 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 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 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 moved Amendment No. 180: 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 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 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 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 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 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 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 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 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.