HL Deb 20 June 1984 vol 453 cc383-96

8.49 p.m.

Report received.

Clause 2 [Prohibition of driving or parking on cycle tracks]:

Lord Henley moved Amendment No. 1: Page 1, line 20, after ("who") insert (", without lawful authority,").

The noble Lord said: My Lords, with the leave of the House, I should like to speak to Amendments Nos. 1 and 2 together.

Amendment No. 2: Page 2, line 31, leave out subsection (4).

Clause 2, as drafted, makes it an offence to park or drive any motor vehicle wholly or partly on a cycle track. Various defences are specified, including one in subsection (4) which allows a motor vehicle to be driven on a cycle track when that is the only reasonably practicable way of obtaining vehicular access to, or egress from, premises. As I mentioned at Committee stage, an amendment suggested by my noble friend Lord Gisborough caused us to look again at the drafting of this clause. That examination showed that the drafting of the clause needed some improving.

Taking the clause as a whole, its effect, as drafted, would be to take away without compensation any existing lawful authority a person may have to drive a motor vehicle on a cycle track except where that use provides the only reasonably practicable means of access to premises. Clearly this is wrong. My amendment to subsection (1) ensures that where a person has lawful authority to drive or park on a cycle track then he will be able to continue to enjoy that use without committing the offence specified in the subsection.

Subsection (4) as drafted gives the defence if a person is driving on a cycle track as the sole reasonably practicable means of obtaining access to, or egress from, premises, even though that person may have no lawful authority so to use the cycle track. Again it is clearly wrong to appear to condone any unlawful driving of a motor vehicle on a cycle track. In proposing to delete subsection (4), we are not taking away anyone's lawful authority to use a cycle track. That will be protected by my amendment to subsection (1). What we are doing is ensuring that there is no defence which could be held to condone any unlawful use of a cycle track. I commend these amendments to your Lordships. I beg to move.

Viscount Long

My Lords, I am most grateful to my noble friend. The Government fully accept these amendments. It would be wrong to take away people's existing legal rights without compensation or to appear to condone unlawful use of a cycle track. My noble friend's amendments ensure that the Bill does neither of these things. I commend them to your Lordships.

On Question, amendment agreed to.

Lord Henley moved Amendment No. 2:

[Printed above.]

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

On Question, amendment agreed to.

Clause 3 [Conversion of footpaths into cycle tracks]:

Lord Carmichael of Kelvingrove moved Amendment No. 3: Page 3, line 3, after ("highway") insert ("maintainable at the public expense").

The noble Lord said: My Lords, I must apologise for my noble friend Lord Underhill not being here at this time. I hope that he will be able to join us fairly soon and certainly before the end of our discussion. He has a particular interest in cycling going back a long way, and therefore he is keen to participate in this debate if it is at all possible. His commitments in the course of his duties to this House are keeping him away just now.

This amendment is a simple one. It is designed to ensure that any footpath designated as a cycle track under Clause 3 will become, if it is not already, a highway maintainable at public expense by the highway authority which has undertaken the conversion. As presently drafted, the Bill does not make this clear enough, and a failure to clarify matters could lead to disputes about maintenance liability in the future, particularly in those cases where the footpath being converted is not itself maintainable at public expense, as is the case with a number of footpaths.

There is a precedent for the amendment in Section 36(2)(d) of the Highways Act 1980 which specifies that any new footpath or bridleway created as a result of a public path creation or diversion order shall be maintained at public expense by the highway authority. It is desirable in the interests of the pedestrians and cyclists who will be using the cycle tracks, and of the landowners—at least in the countryside—over whose land the tracks will run, that the liability for maintenance be made absolutely clear. I hope that the noble Viscount the Minister will see that this is meant to be a helpful amendment and accept it. I beg to move.

Lord Henley

My Lords, may I thank the noble Lord for bringing forward this amendment. It identifies a clear need to correct the drafting of the Bill. Once a footpath has been converted to a cycle track, steps have to be taken by those responsible for the cycle track to ensure that it will be capable of use by cyclists—for example, a suitable surface will be required and it will need to be properly maintained. Some expenditure would then clearly be involved.

It was never the intention that this should be borne by anyone other than the local highway authority. As the reason for the footpath conversion will be to give public benefit then clearly the cost of the work to bring this about and to maintain it should fall on the public purse. If the cycle track is not maintained at public expense then the local highway authority will be unable to install barriers and other works provided for in Clause 4 of the Bill.

I have discussed this amendment with my noble friend on the Front Bench and we have agreed that it can be accepted only as an essential clarification of the Bill's intent. As a consequence of accepting this amendment I am afraid that it will be necessary to consider the need for consequential amendments to this clause, and I shall bring forward suitable amendments at Third Reading.

Viscount Long

My Lords, I am most grateful for the explanation given by my noble friend. The Government accept the need for this amendment and support it. It was never intended that the cost of conversion or maintaining a cycle track should be borne other than by the highway authority. We also accept the need for consequential amendments and will give my noble friend whatever assistance he needs in the drafting.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 4: After Clause 3, insert the following new clause:

("Effect of conversion on definitive maps and statements.

.—(1) Where a way shown in a definitive map and statement as a footpath is designated as a cycle track by means of an order under section 3 of this Act, the surveying authority for the area in which the way is situated shall by order modify the statement so as to note the extension of the public's rights over the way to include a right of way on pedal cycles (other than pedal cycles which are motor vehicles), but shall not modify the showing of the way as a footpath in the map.

(2) Subsection (1) above applies notwithstanding the duty imposed on a surveying authority under section 53(3)(a)(ii) of the 1981 Act to modify the definitive map when a highway shown in the map has ceased to be a highway of that description.

(3) An order under subsection (1) of this section modifying the statement shall be made as if it were an order under section 53(2) of the 1981 Act taking account of an event specified in subsection (3)(a) of section 53; and shall take effect on being made.

(4) Where a way required by virtue of the provisions of Part III of the 1981 Act to be shown in the definitive map and statement as a footpath is not so shown, and is designated as a cycle track by means of an order made under section 3 of this Act, the surveying authority for the area in which the way is situated shall, notwithstanding the provisions of the said Part III, continue to be required to modify the map and statement by order to show the way as a footpath, subject to the proviso that such an order shall modify the statement so as to record the public right of way over the way on pedal cycles (other than pedal cycles which are motor vehicles).

(5) An order under subsection (4) of this section shall be made as if it were an order under section 53 of the 1981 Act adding a footpath to the definitive map, and the provisions of Schedule 15 to that Act shall, if necessary, apply to it.

(6) Section 57 of the 1981 Act shall apply to orders made under this section as it applies to orders made under Part III of the 1981 Act.

(7) In this section "the 1981 Act" means the Wildlife and Countryside Act 1981 and "definitive map and statement" and "surveying authority" have the same meaning as in section 66 of the 1981 Act.")

The noble Lord said: My Lords, this is a new and rather long clause, but the purpose of it is relatively simple. The intention of the new clause is to make sure that the Bill does not have what would be an unintended side effect in reducing information available to the public about their rights. At present all county councils and the outer London boroughs must produce what are called definitive maps and statements of public rights of way, and in inner London the procedure is optional.

The maps show ways as footpaths, bridleways, or byways open to all traffic. Once a way is shown in such a map, it provides conclusive evidence, which can be used, if necessary, in the court, of the public's right to use that particular way. The information shown in the maps is used by the Ordnance Survey to show public rights of way. Information on its maps is at 1 to 25,000 or 1 to 50,000. It will be seen that they are of immense importance to the public in providing information about rights to walk and to ride.

The procedure by which rights of way come to be shown on definitive maps was extensively revised by the Wildlife and Countryside Act 1981, and is now to be found in Part III of that Act. One of the duties imposed by the Act on the county and London borough councils as surveying authorities is to amend the maps to delete any way which has ceased to be a highway of one of the three types already mentioned.

"Footpath" is defined in Section 66 of the Act as a highway over which the public have a right of way on foot only. The same definition appears in the Highways Act 1980 and is thus applied to this Bill. Clearly, if a footpath is designated as a cycle track under Clause 3, so that by definition the public's rights are extended to include a right to use pedal cycles, it is no longer a footpath only as defined in the Wildlife and Countryside Act.

The effect of the Bill as presently drafted is thus absolutely to require a surveying authority to remove from the definitive map any footpath converted into a cycle track. The amendment seeks to prevent its happening by requiring the authority to continue to show the way as a footpath, but with an additional note on the statement to indicate that there is also a right to cycle on this path. Subsection (1) of the new clause puts this into effect and subsection (2) refers to the section in the Wildlife and Countryside Act which would otherwise require the path to be deleted from the map.

Subsection (3) provides that an order modifying the statement to indicate the right to cycle shall be made as if it were an order under the Wildlife and Countryside Act, modifying the map to take account of, say, a public path diversion order which has come into operation. Such an order does not have to be publicly advertised. It is merely an administrative operation, but copies of such orders have to be kept with a copy of the map and the statement which is available for public inspection.

Subsection (4) is designed to cover the cases where a footpath which has been converted into a cycle track ought to be shown in the definitive map but is not so shown at present. Such a case might arise in one of the former county borough areas where prior to the passing of the Wildlife and Countryside Act there was no duty to prepare a definitive map. This part of the Act was brought into operation in only February 1983 and maps have not yet been produced for most of these cases. The subsection applies the same procedure as a subsection (1); namely, that a footpath converted into a cycle track shall still be shown on the definitive map as a footpath, but with the additional reference in the statement to the right to cycle.

Subsection (5) specifies that the procedure for orders under subsection (4) shall be the same as if there were orders under the Wildlife and Countryside Act, and the reference to Schedule 15 of the Act is a reference to the procedure which has to be followed if a claim that the way is a public footpath is based on evidence of public use, rather than on a past statutory event, such as a public path order, an enclosure order, or an Act of Parliament.

Subsection (6), by applying Section 57 of the Wildlife and Countryside Act to orders made under this clause, ensures that such orders will be made available for public inspection alongside the definitive map and statement.

That is a rather long explanation of what is a fairly simple idea, but I think that the noble Viscount the Minister will realise that it is important to explain it exhaustively. As there are so many references to the earlier Act, particularly the Wildlife and Countryside Act, it is essential to tie up this change with the same references to same Act. I hope that the Minister will realise and accept that the changes asked for in the new clause are simple, despite the rather involved explanation that I believe is necessary.

I beg to move.

Lord Henley

My Lords, I know that my noble friend Lord Long wishes to comment on the noble Lord's amendment, and so I shall not detain your Lordships for long. For my part I am concerned that this is a substantial amendment and it moves us some way from the basic objectives of the Bill, which are to prevent motor vehicles from using cycle tracks, to simplify the procedures for converting a footpath to a cycle track, and to give the highway authorities power to erect barriers on cycle tracks and undertake other works.

This detailed amendment seeks to include cycle tracks converted under the provisions of this Bill on definitive maps prepared under Part III of the Wildlife and Countryside Act 1981. It does not sit well with the remainder of the Bill. If it is appropriate to consider including cycle tracks on definitive maps, I consider that they should be described as such and cover all the appropriate cycle tracks which have a right of way for cycles and a right of way on foot. This can be considered properly only in the context of a decision to extend coverage of definitive maps under Part III of the Wildlife and Countryside Act. It is not a matter that can be properly or fully considered in the context of a private Member's Bill.

Viscount Long

My Lords, I am grateful to the noble Lord, Lord Carmichael of Kelvingrove, for, if I might say so, ploughing his way through this amendment, because in many ways it is a sensitive and tricky situation. There are two points I wish to stress. I have to go fairly quickly, and I hope that I shall alleviate or obliterate some of the problems that have arisen.

First, Clause 3 of the Bill does not propose a totally new power to convert footpaths to cycle tracks. Local highway authorities already have powers to do this, and they have exercised those powers. What the clause proposes is a simplified procedure to achieve conversion.

Secondly, the existing conversion procedure and the procedure contained in this clause mean that all, or part, of a footpath which is being converted ceases to exist. In its place there is a new and different highway, a cycle track, which under the proposed procedure will also have a right of way on foot.

When only part of the width of a footpath is converted, the result will be two distinct ways adjacent to each other. One will be a footpath solely for pedestrian use. The other will be a new cycle track with a right of way on cycle and on foot. The footpath will continue to be shown on the definitive map. We expect this form of conversion to be the principal type of conversion. When, exceptionally, all the footpath is converted, the way becomes a cycle track. In law and in fact it is no longer a footpath and to seek to describe it as such, whatever the context, is wrong.

I fully appreciate that I may be going too quickly, because this is not an easy subject. One of the points which we seek to emphasise is that there is never a right to ride a pedal cycle on a footpath. We certainly do not wish to create any impression that such a right does exist or can exist.

Part III of the Wildlife and Countryside Act 1981 deals with highways which are predominantly used by pedestrians and horse-riders; namely, byways, bridleways and footpaths. Cycle tracks have existed as distinct highways for many years. Until now it has not been suggested that the scope of Part III should be extended to include cycle tracks. The noble Lord's amendment refers only to cycle tracks converted under the powers in this Bill. It does not cover other cycle tracks which may also have a right of way on foot, such as cycle tracks which are created in their own right, those which are part of a highway including a carriageway and those which were formerly footpaths and which were converted under the existing procedure.

The noble Lord's amendment conflicts with the clear definition of footpath contained in the Wildlife and Countryside Act as a highway over which the public have a right of way on foot only. The definitive map, if the amendments are accepted, will continue to show a footpath. The statement will describe the footpath as having an additional right of way on pedal cycle. The footpath shown on the map will not, in fact, be a footpath as defined in the Act, nor will the description of the way in the statement accord with the definition or with the map. We must clearly recognise that we are dealing with two distinct types of way. Footpaths should clearly be shown on the definitive map. A cycle track should not be included. Further, we see a risk in the noble Lord's amendment of there having to be two public inquiries dealing with the same substantive issues, the first into the footpath conversion order made under this Bill and, possibly, a second inquiry under Schedule 15 to the 1981 Act when the converted footpath was not shown on the definitive map.

We are not creating a new situation; we are simply trying to simplify the existing procedure—and, having gone through this, I find that last sentence exaggerated. Footpaths that can already be stopped up in order to make way for a cycle track will not be retained in the definitive map and this amendment would not change that situation. If there is a desire to include cycle tracks on definitive maps this is a matter to be contemplated having regard to all cycle tracks, not only those which are dealt with in this Bill and this amendment, in the context of Part III of the Wildlife and Countryside Act 1981 itself. This, of course, is a matter for my right honourable friend the Secretary of State for the Environment. And I will draw his attention to the noble Lord's concern.

The fact that the former footpath has become a cycle track with a right of way on foot will be well known locally and will be clearly signed as such. If people using an Ordnance Survey map to plan their route are inconvenienced by the cycle track not being shown on that map we will certainly be willing to consider the matter in conjunction with Ordnance Survey. If Ordnance Survey are willing and able to show cycle tracks with a right of way on foot on their maps, my right honourable friend the Secretary of State for Transport will consider including in the regulations to be made under Clause 3 of this Bill a requirement that Ordnance Survey should be notified of orders confirmed under Clause 3. This would accord with the present practice whereby Ordnance Survey are notified of footpath closures and diversions.

My Lords, we do not consider that the noble Lord's amendment is appropriate or that it is right to seek to describe a cycle track as a footpath in any context. I remember when this was queried in Committee. I hope that I have allayed any anxieties in the explanation I have given. I cannot commend the noble Lord's amendment to your Lordships. In light of what I have said, perhaps the noble Lord will reconsider the need for these amendments.

Lord Inglewood

My Lords, may I ask a short question particularly against the background that bicycle are much more numerous in certain countries—in Holland, for example, and in north-west Germany—than they are here? May I be told whether pushing a bicycle, not riding a bicycle in the ordinary way, or pushing a tricycle, are offences under this particular Bill?

Lord Henley

My Lords, I am fairly confident in saying to the noble Lord that they are not offences if bicycles or tricycles are being pushed. I should not like to say that categorically. If I may take advice on that, I shall write to the noble Lord.

Viscount Long

If I may come to the assistance of my noble friend, the answer is no.

Lord Carmichael of Kelvingrove

My Lords, I am most grateful for the obvious trouble that the noble Viscount has taken to explain the lack of necessity for the new clause. I think that he will realise that it is not totally satisfactory, because I still have the difficulty in reading the Wildlife and Countryside Act that one of the duties imposed on the counties and the London borough councils as surveying authorities is to treat only and to name only footpaths, bridleways and byways which are open to all traffic. While I am grateful for the great care that the noble Lord has taken in replying, we on this side—and I am sure the whole House, including the noble Lord who inspired the Bill—do not want to lose any of the rights that already exist.

There is just this slight worry over having a cycle track and a footpath, although I am grateful for the fact that the noble Lord the Minister said that they would be separate. We may come to another amendment later on on that point, but the fact that they would be separate would make it clearer, because the footpath would still be named and marked, as I understand it, on the map. That would be a point which would pretty well satisfy me and the people who are particularly concerned about this aspect. I am sure that the noble Lord will accept that his speech is one which I should like to read with great care and on which I should like to take advice. I think that the spirit is right, and at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Provision of barriers in cycle tracks, etc.]:

9.12 p.m.

Lord Beaumont of Whitley moved Amendment No. 5: Page 5, line 17, leave out from ("authority") to ("necessary") in line 19 and insert ("shall, in the case of any cycle track which is adjacent to a footpath or foot way, provide and maintain such barriers as are").

The noble Lord said: My Lords, I come back with these two Amendments Nos. 5 and 6 which I put before your Lordships at the Committee stage.

Amendment No. 6: Page 5, line 22, leave out subsection (3).

There was at that time, I think, a slight muddle as to what the implications of passing them would be. There was some feeling that if they were passed, a local authority would be forced to put up some kind of dividing barrier, whether or not it was necessary. That, of course, was never intended and I do not think the amendment as drafted implied that in any way. Barriers, if these amendments should be passed, would be put up if they are necessary for safety. I still believe that this is right. The step that the amendments would take is to make it an objective fact that there was a need for something for safety, as opposed to the opinion of the local authority.

The whole of this question of dividing pedestrians from cyclists, which affects particularly the blind and the partially sighted, is under intensive study by the Ministry. I very much thank the Ministers and civil servants concerned for their co-operation, both with me in considering these amendments and with the interested parties on the progress of what is being done. Work is being done on new forms of harriers and marking, but meanwhile we are having to cope with a variety of second bests.

I still take the view that some of the second bests, if not done to the extreme levels of safety, and if not done as efficiently as they possibly could be, might be dangerous, and therefore worse than useless. They could be such as really to destroy the whole idea that you can safely share a pedestrian and cycle track at any particular stage. Therefore, there should be a definite duty for local authorities to have complete regard to safety in putting up these barriers. I am told that if we did that it would be in fact a precedent, that all the laws dealing with this kind of matter for local authorities leave it at the discretion of the local authorities to do what seems to them to be fit in the interests of what they' deem to be safe.

As a Liberal, I take that argument extremely seriously because I believe in devolution, but nevertheless in the context of safety I think there are moments when local devolution should be overruled. I rather suspect that that is a precedent which it might not be at all a bad idea to introduce, and it might not be at all a bad idea if it were followed in other traffic Acts. But I realise that a Private Member's Bill is not the best place to embark on a major reform of this kind, however valuable it might be.

Ministers are consulting with all the various people concerned about the advice which is to be given to local authorities. It is part of the Government's case that we are working our way towards improvements, and as soon as improved forms of barriers and signposting for people who are handicapped have been developed they will be introduced. That being so, I have one question to ask the Government, Will they undertake that, as soon as there are new and satisfactory forms of barriers and signposts, the advice which is being sent out to local authorities will be amended so that they will have the advantage of being able to follow the guidelines?

I have one other point to make about bicycle bells which arose at the previous stage. I am still rather shocked that it is not necessary for bicycles to have bells. Bells are a distinctive method of warning pedestrians of the presence of bicycles. I have one piece of good news to add. I have been told that the Pedestrians' Association is partly responsible for the present situation, since it did not object to the doing away of bicycle bells, but the association is reconsidering this whole matter. I hope that it does and that the Government will look at this sympathetically. My Lords, I beg to move.

Lord Carmichael of Kelvingrove

My Lords, I should like very briefly to agree with the general theme of the amendments of the noble Lord, Lord Beaumont, although I see that there could be difficulties in trying to make everything work from Day 1. But he raised a very important point when he spoke of the difficulties which the blind could have. Perhaps the Minister has had correspondence, as I and the noble Lord have, with the Royal National Institute for the Blind, who are very concerned and who ask for a total separation of footpaths and cycle tracks. I hope that the Minister has looked at this point and has made some computation of the cost.

The noble Lord, Lord Beaumont, mentioned signposting. Perhaps some consideration could be given to the needs of people using tracks for walking, by putting up signposts at the beginning of a track as well as at strategic points throughout its length, to remind cyclists that other people are using it. I broadly support the noble Lord, Lord Beaumont, in his general thesis though perhaps not in detail, and I hope that the Minister will give the amendment thought.

The Countess of Mar

My Lords, I, too, should like to support the general principle of this amendment. I speak not only as a pedestrian but as a cyclist, or perhaps I should say as the steam power on the back end of a tandem. The other day when I was walking in Kidderminster, a young man was riding his bicycle along the pavement. It was a fairly wide pavement, but he was not looking where he was going and I had a nasty bruise on my right hip where he hit me with his handlebar. I am perfectly sighted: I might be a bit bulky but I am perfectly agile. Anyone who was slightly disabled, partially sighted or blind just would not have had a chance. And that is only a small example. If one has a footpath and a cycle path adjacent to each other and without any division, there are dangers of some very nasty accidents arising. I hope the Government will give this amendment careful consideration.

Lord Henley

My Lords, again I have had the benefit of discussing these two amendments of the noble Lord, Lord Beaumont, with my noble friend Lord Long and I know that he wishes to discuss them in some detail. For myself, I fully accept the concern which has led the noble Lord to move these amendments. I certainly do not think we have ignored the points in question in the drafting of the Bill. If anything, I think the position of the blind and the partially-sighted is strengthened by the various safeguards which have been put in before the creation of any new cycle track. We also feel that adequate steps must be taken to increase the safety and convenience of cyclists, and that a balance between their interests and the interests of other people must be reached.

The Bill before us is, I hope, a balanced measure and I hope that it allows the flexibility of response to what are likely to be a variety of different circumstances. We already entrust highway authorities with responsibility for a wide range of safety measures and, in doing so, we do not seek to restrict their right to exercise their reasonable discretion. The power in Clause 4 of the Bill enables highway authorities to provide the safety measures they consider are needed in the interests of safety to separate a cycle track and adjacent footpaths or footways. We have not sought to limit a highway authority to any particular or single form of separation.

Subsection (2) is drafted to cover fully a wide range of possibilities, including of course any results of the Transport and Road Reseach Laboratory's current work. Subsection (3) is essential if highway authorities are to be able to monitor and then take action in response to the results of that monitoring of a cycle track. Highway authorities must be able to alter or remove the harriers they provide under subsection (1) or the other works they provide under subsection (2) if, for example, they have failed to do what they set out to do or if there are other alternatives which would do the job better.

As I have said throughout, we have tried to maintain a balance between the various different interests, but I believe that the noble Lord's amendments strike at that balance and I cannot recommend them to the House.

9.30 p.m.

Viscount Long

My Lords, perhaps I may come back into the fold. The noble Lord, Lord Beaumont, has put a great deal of work into this particular Bill, especially on behalf of the blind and the partially blind. All the questions he has raised, both at Committee stage and now, are very relevant to those who are in need of safety in every way. I think his contribution to this Bill is enormous. Equally, I should like to thank my noble friend for the support he has displayed. We have all been trying our best to help others when it comes to dangers; and when it comes to cars, motor bikes, cycles and so on, this Bill is indeed very important.

May I thank the noble Lord, Lord Beaumont, for outlining the reasons behind his amendments and their likely effect, I have listened most carefully to what he has said and I have also read again the noble Lord's comments made at the Committee stage, which, as I have just said, were most helpful.

Subsection (2), as drafted, provides highway authorities with a discretionary power to provide and maintain works, which may include barriers, to separate a cycle track from an adjacent footpath or footway. The works that they can provide are those which they reasonably consider are necessary in the interests of safety.

Subsection (3) enables such works and barriers installed under subsection (1) to be altered or removed. Subsection (3) therefore allows any chosen form of separation to be monitored, to see whether it is effective, and to be altered or removed if it is found not to work or to be unnecessary.

In giving highway authorities—that is the Secretary of State in respect of the trunk road network, and local highway authorities in respect of local roads—discretionary powers as regards safety measures, the Bill follows established practice. To seek to limit highway authorities' discretion would represent a significant change from the way they are entrusted to act at present.

If I may say so to the noble Lord, Lord Beaumont, any proposal to change the established approach to safety, and safety measures, raises issues which go far beyond the matters that can appropriately be considered in the context of this Bill. I am aware that the noble Lord considers (as I mentioned in Committee) that his amendments retain a measure of flexibility. We have examined them most carefully and it may help if I detail the results of our examination. In our view, the noble Lord's amendments seek to impose a duty on highway authorities to provide such harriers, but no other works, as are necessary to separate a cycle track from an adjacent footway or footpath in the interests of safety. Once the barriers have been installed, the proposed deletion of subsection (3) would mean that they could not be altered or removed.

The noble Lord has suggested that the term "barrier- can be interpreted flexibly to cover a wide range of types of separation. Whatever the intent, I am sure that the courts, in any examination of the wording of the subsection, would consider "barriers", in the accepted meaning of the word, as a material obstruction of any kind which bars advance or prevents access—a fence, a railing, and so on. I cannot see how the humps or tactile separators, which the Transport and Road Research Laboratory are currently working on, which are intended to guide and deter but not necessarily prevent crossing, will be considered by the courts as harriers in the accepted sense of the word.

The noble Lord considers that the question of whether or not a barrier is necessary, and should therefore be provided, should be justiciable. This effectively means that in any instance where the highway authority are not minded to concede that barriers should be provided, the courts may be approached, not to say whether or not the authority has acted lawfully or unlawfully, as is their proper role, but to make their own assessment of the merits of the case and substitute their own opinion. The proper role of the courts is limited to judicial review of administrative decisions, so as to make sure that when decisions are taken, they are taken in a lawful way. It would be unusual to seek to enable courts to make decisions in substitution for the decisions of a highway authority.

The noble Lord's amendments deny the highway authority the flexibility which the existing clause provides by enabling different forms of separation, including barriers, to be provided. While separation may be appropriate, it may not be appropriate to achieve it in every case, or in the whole of a single case, by the erection of a barrier. Another form of separation, or a mixture of forms of separation, may be desirable to meet different circumstances.

I refer noble Lords to my remarks in Committee on the particular problems that can arise if barriers are provided. I shall not repeat them now. In our view, highway authorities would find it irresistible to conclude—bearing in mind the strong advice that it is proposed to give to them as to a preference for a physical separation of cycle tracks from adjoining ways—that barriers of some form must be provided in every case where there is shown to be a need to ensure separation for safety reasons, even though barriers may be inappropriate, or grossly inconvenient, for the particular case.

The amendment does not allow for barriers to be dispensed with in circumstances where, although necessary for safety reasons, they would unduly inhibit use of the cycle track and adjoining footpath or footway by either pedestrians, including blind and disabled pedestrians, or cyclists. Nor does it allow for barriers to be dispensed with in circumstances where, although necessary for safety reasons, other forms of separation would work just as well, if not better.

We have considered this matter most carefully. We consider that highway authorities must have a range of measures available to them and a flexibility of choice in their application. We are aware of the concern that has been expressed about white line separation. That came in the noble Lord's arguments in Committee. This is fully covered in the advice which my honourable friend the Minister of State for Transport will be issuing to highway authorities. The Transport and Road Research Laboratory in their work on tactile warnings and separation are examining possible improved ways of achieving separation.

When the results of the laboratory's work are available, and after they have been fully tested at a number of representative sites, my honourable friend will look again at her department's advice to local highway authorities on ways of separating cycle tracks from adjacent footpaths or footways. However, I must ask for patience. In Committee I think your Lordships were asking me or my right honourable friend to turn the switch so that all could be well overnight. I am afraid that it has taken time to get this far; but with patience—and I hope your Lordships will have patience—we will eventually achieve our objectives.

We must make sure that we have effective ways of achieving separation which meet the legitimate desires and requirments of all users of cycle tracks and of adjacent footways and footpaths. In the meantime, we must ensure that local highway authorities have the flexibility to deal with the problem.

We stress the need for full survey and consultation. In the case of footpath conversions Clause 3 of the Bill gives a right of objection, with contested cases decided by the Secretary of State. But we consider it essential that the decision on the form or forms of separation must remain with the highway authority. They must also have a clear ability to alter, or remove, the form of separation they provide if monitoring shows that it does not work properly, that it could be improved or that it is not necessary.

Because of the amendments we have agreed to Clauses 2 and 3 the Bill will have to return to another place. I know that the noble Lord, Lord Beaumont, and others, do not wish to delay this Bill; it is an important Bill. In the way of things it must be best to limit amendments to those which are strictly necessary and are of a technical nature. The noble Lord's amendments suggest fundamental changes in the way safety, matters are considered. We for our part do not consider they are necessary or appropriate. As my noble friend has said, they alter the balance of the Bill. I cannot commend the noble Lord's amendments. In the light of what I have said, perhaps the noble Lord will reconsider the need for them.

Lord Beaumont of Whitley

My Lords, I have already paid tribute to the goodwill, the industry and the determination to consult which the proposers of this Bill and the Government have shown, and I do not withdraw a word of that. I just wish that it was not necessary at the same time to produce a number of extra arguments, many of which do not by any means stand up to examination. Some of them depended upon the possibility of re-drafting the amendment—a question which was not raised at the previous stage. I have absolutely no doubt that it will be quite feasible to redraft these amendments so that they cover other kinds of barriers, other kinds of works, and which allow for their being removed if necessary. Neither do I accept the argument of the noble Viscount the Minister that to put in such an absolute standard would be an inappropriate burden upon the courts.

All those matters I would be prepared on another occasion to argue and be prepared to test the feelings of your Lordships' House. However, it was when we reached the end of the noble Viscount's speech that we reached the heart of the matter. The heart of the matter is that we all want this Bill to succeed; that it is on balance a good Bill, and that a major change such as I am suggesting—I do not deny that it would be a major change—would take up valuable time in another place, and possibly alarm the local authorities and therefore cause some antagonism in another place. The other place has limited time to deal with this Bill and the fewer excuses we give them to let it fall by the wayside, the better. I would certainly not stand in its way. Therefore, with some reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]