HL Deb 20 June 1990 vol 520 cc1000-7

7.55 p.m.

Lord Kimball

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

Moved, That the House do now resolve itself into Committee. —(Lord Kimball.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD HAYTER in the Chair.]

Clause 1 [Amendment of Part IX of Highways Act 1980]:

The Earl of Radnor moved Amendment No. 1: Page 2, line 26, leave out ("make good") and insert ("treat").

The noble Earl said: Amendment No. 1 is simple. It may appear to be only a matter of drafting but there is a little more to it. It relates to the reinstatement of a right of way after it has been either ploughed or disturbed. The wording in the Bill as it stands is, so make good the surface of the path". At Second Reading I said that the words "make good" —particularly "good" —were extremely imprecise and woolly, aware though I was that they had come forward from the 1980 Bill. Some people feel that the devil you know is better than the devil you do not know.

I take the contrary view that there is nothing that cannot be improved. The phrase "make good" to me tends to suggest that something is put back as it was before. In a colloquial sense I believe that is what the phrase would be taken to mean. It is obvious that with all the will in the world when these rights of way are ploughed or disturbed they will never be precisely as they were before. The object of the Bill, as I see it, is to make these paths, byways, bridle paths, and so on, reasonable for people to use them as they should be used. I therefore felt the word "treat" to be better. The later part of paragraph (a), as to make it reasonably convenient for the exercise of the right of way", is the description of how the treatment should take place. It is not a matter of the greatest importance, but I think that "treat" is a little better than "make good". I beg to move.

8 p.m.

Baroness Nicol

The term "make good" has been used in legislation since 1949 so it is familiar to farmers and to local authorities. It is understood to imply a reasonable restoration of the walking surface with an understanding on all sides that there is a degree of flexibility in that standard. Sometimes the path may be improved by making good, and sometimes it may have deteriorated; but that flexibility has been accepted.

To "treat", as proposed by the noble Lord, implies a more sophisticated exercise and is open to several interpretations. Such a requirement might cause the Bill to lose the support of farmers whose good will is essential to its operation. The term "make good' is perfectly acceptable to the Ramblers' Association and like-minded bodies. I hope that the noble Earl will feel able to withdraw his amendment because we do not wish at this stage to lose the good will of the many farmers who have agreed to these measures.

Lord Kimball

I am grateful to my noble friend Lord Radnor for all the work and attention he has given to the detail of this Bill. I am also grateful to the noble Baroness, Lady Nicol, for accurately summarising the problem we face in accepting the amendment; much as I should like to do because I now that my noble friend genuinely prefers the word "treat".

The snag is that there are now various modern techniques, including something called "solidry" which local authorities practice and which only local authorities can afford, which would come under the description of "treat". Therefore, we are putting an additional burden on the farming community if we accept the amendment. In view of what the noble Baroness said, I hope that he will feel able to withdraw the amendment.

The Earl of Radnor

I can assure the Committee that the last thing in the world I wish to do is upset the farming community or the ramblers. I take the points that have been made. It is obvious that the devil you know is better than the devil you do not know. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Radnor moved Amendment No. 2: Page 2, line 30, leave out ("so").

The noble Earl said: I speak also to Amendment No. 3. These two amendments have to be taken together. Again, it is a matter of semantics, but I feel that it is perhaps a little more important than that. For one thing, I do not feel that surplus words, even a few, are to be desired in legislation. Therefore, I feel that it would be advantageous to delete the word "so" from the beginning of paragraph (b) and take out the words at the end of the paragraph so that it reads: indicate the line of the path or way on the ground to not less than its minimum width".

That means exactly the same as the paragraph now reads. To me it seems, in a sense, rather stronger but perfectly reasonable wording. It does not seem necessary that the paragraph should contain the words. that it is apparent to members of the public wishing to use it".

Those words are embodied in the word "indicate". Therefore, why have this additional description at the end of the paragraph and the word "so" at the beginning? There is no difference to the thrust of the Bill by this alteration, and at the same time it is a small attack on verbosity. I beg to move.

Lord, Kimball

I find it difficult to disagree with my noble friend; but I regret to say that his amendments, taken together, change the structure of the Bill. That is the problem. This paragraph in the Bill has been carefully drafted to link with the surface restoration requirements which precede it so that taken together the path is adequate for the exercise of the right of way. That is, the surface shall be made as good so as to be convenient for the exercise of the right of way and the line so indicated as to be apparent to members of the public wishing to use it.

The advice we have had from drafting counsel is that the courts will similarly hold that the requirement to indicate is a minimum one. It requires no more than that someone, once at the start of a path on a field boundary, will be reasonably certain of the line they should take to walk or ride across the field. The amendment effectively breaks the link between the two tests. Taking out the reference to the path being apparent to members of the public could lead the courts to conclude that something more is required and that the path should be indicated by a higher standard than that which was originally intended by the working party which looked at this problem.

As with the first of my noble friend's amendments, these two amendments introduce an inconsistency into the Bill. In view of that explanation, I hope that my noble friend will feel able withdraw this amendment and I shall have much pleasure in accepting his later amendment.

The Earl of Radnor

I certainly have no intention of pressing this amendment. I take the points that have been made. Perhaps I looked at the matter in a rather simplistic manner. Again, the last thing in the world that I wish to do is to cause farmers any more trouble than they have already. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Gisborough moved Amendment No. 4: Page 5, line 10, at beginning insert ("Subject to subsection (2A) below,").

The noble Lord said: In moving this amendment, I speak also to Amendment No. 5 which should be taken with it. I first declare an interest as a farmer although I do not think I have any footpaths going through my land of the sort we are discussing. I also declare an interest as a walker. I am a keen Sunday afternoon walker. I know some of the problems of using footpaths which are not good and therefore I speak very much from the walkers' interests and point of view.

The problem is that where a farmer plants corn he has to plant it a certain distance apart. There is no excuse for planting it closer, and we now know the distance that he must leave. Even if he plants the corn at, I believe, 1.8 metres apart it could fall over—oilseed rape could be the biggest problem —and without the farmer knowing he could end up with a gap of less than one metre.

The proposed subsection (1)(b) states: to prevent the crop from so encroaching on any relevant highway, whether passing over that or adjoining land, as to render it inconvenient for the exercise of the public right of way".

I have no quarrel with that because as a walker I do not want to be inconvenienced. I do not mind having to push things away because that is part of the joy of walking in the country —climbing stiles, and so on —otherwise one might just as well go to the park. The proposed subsection (2) of that clause states: For the purposes of subsection (1) above, a crop shall be treated as encroaching on a highway if, and only if, any part of the crop grows on, or otherwise onto or over".

That means that if the top of the crop extends over the one metre minimum then the farmer is committing an offence. We are not talking about blocking the path or making it inconvenient. I am not talking about planting too close to the path. If there is wind at home and the oilseed rape comes over and the next day I receive a complaint, then I may be liable.

The great majority of walkers are people of goodwill who want nothing more than to go for a good walk and enjoy themselves. However, we all know that there are some keen walkers who like nothing more than exercising their rights. I quote the example of people who always insist on following a footpath through someone's house because they have the right to do so whereas a reasonable person would go round the outside.

We also have a great many very keen local authority officials. I had a case recently concerning a fault found in an hotel kitchen. I was involved with the hotel. We did our best to put the fault right. I met an official outside and I said, "I am glad to see you. Is there any advice you can give us to make sure that we have got it right?" She said, "I am not here to give you advice, I'm here to close you down if you get it wrong". There are numbers of these young officials about who are straight out of school and that is their attitude. They will be carrying one metre measuring sticks around with them and if they can find a place where the corn is less than a metre apart, bang goes the farmer. That is nothing less than harassment and it will happen.

The noble Baroness, Lady Nicol, talked about goodwill. There will be no goodwill at all. The farmer will be fined £400 on Scale 3 because the wind had blown a tip of corn on to the path. He would be fined as if he had obstructed a police officer or had a dog worrying livestock or as if he had evaded his TV licence fee. That is the penalty. Furthermore, because of that wind he will have a criminal record. That could happen to any noble Lord.

It really is absurd. If I am incorrect and if the relevant words are "to render it inconvenient" that is fair enough and there is no problem. It is a matter of judgment. However, if the relevant words are, if any part of the crop …grows over", that will be totally unacceptable. It would bring the law into disrepute and if a case was ever brought it would make the law an ass. Whether my amendment is correct I cannot say. An amendment to make this provision reasonable and not just a question of a measuring stick is absolutely essential.

8.15 p.m.

Lord Stanley of Alderley

I put my name to this amendment because I was confused by what was meant by "apparent width". Why not just put "width"? Since then I have taken legal advice. The interpretation that I was given by the lawyers, who never cease to amaze me, is as follows. If the crop overhangs the right of way but is not rendering the path inconvenient as stated in subsection (5)(1)(b) on page 5, lines 6 to 9, of the Bill and not growing in the right of way, which I fully accept, then the authority would be acting unreasonably if the farmer was accused of committing an offence. That is the legal advice I have been given. I hope I can bow to the judgment that that is correct. If my noble friend can confirm that it is correct, then I shall be perfectly happy.

Baroness Nicol

The noble Lord, Lord Gisborough, is very persuasive. Nevertheless, I am advised that this amendment would introduce a degree of ambiguity to the Bill which would undermine the agreement which has been reached by the Rights of Way Committee working party. As we have just heard, growing crops has been the main source of complaint and difficulty over the years. The Bill as presented gives a fair and acceptable way out of the difficulty.

It makes the provision that there must be inconvenience to the public before the Bill applies, as the noble Lord, Lord Stanley, has discovered. The introduction of the phrase "reasonably passable" in Amendment No. 5 is an invitation to long legal wrangles of the kind which can happen under present legislation and which are damaging to all concerned except, possibly, the lawyers.

Minimum widths have been set to make the least possible impact on crops and still meet the needs of walkers. Any reopening of the discussion to accommodate these amendments could upset the balance which has been achieved and set the whole process back, perhaps for years. This Bill has benefits for farmers and for walkers. I hope that it can proceed without delay and that the amendment will not be pressed.

Lord Kimball

Perhaps I may just say to my noble friend Lord Gisborough that he is quite correct in what he said. However, I hope that I can convince him and my noble friend Lord Stanley that what they fear is not the case. The requirement on the occupier, as set out in the Bill as drafted, is not an absolute one. It is to prevent a crop from encroaching on to or over a relevant highway so as to render it inconvenient for the exercise of the right of way. An authority taking action must first assess the inconvenience being caused to path users. Therefore, there is a consistency of drafting with the same concept being applied here as elsewhere in the Bill; namely, in Clause 1 on page 2, line 14, and on page 3, line 25. In each case there has to be some demonstrable inconvenience to the public before the provision can be applied.

Under my noble friend's amendment, this section only is replaced by the test of being "reasonably passable". It may or may not amount to the same thing. However, the phrase is undefined, as the noble Baroness said, and it is not in keeping with the other terms used in the Bill or in existing legislation. As she has said, it will unfortunately lead to even greater confusion. That is what we are trying to avoid in the passing of this Bill. The provisions in the Bill have been carefuly framed to complement the existing provisions in Section 137 of the 1980 Act concerning the wilful obstruction of the public's free passage along a highway and Section 154, which requires an occupier to trim back any overhanging vegetation.

However, the amendment is in conflict with both these sections. A farmer who lets a crop overhang may, using the provisions of the amendment, find that he can still be prosecuted for an offence under the existing Section 137 or he can be required to cut back the overhang under Section 154. For authorities and 1ocal magistrates there is uncertainty about when Section 137 applies to a particular crop. This the new Section 137A has sought to resolve. With that explanation of what is a very complicated legal situation, I hope that my noble friend will feel able to withdraw this amendment. I share his concern and I hope that many people will take note of what he said. There is a slightly belligerent element among some of the rambling community which makes things very difficult for landowners and farmers. While I accept that, I hope that my noble friend will feel able to withdraw the amendment.

Lord Gisborough

I thank my noble friend for that explanation. I should like to read what he said because I am not sure that he covered my point about any part of the crop growing over. I shall read carefully what he has said and perhaps come back to it on Report after taking advice. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

The Earl of Radnor moved Amendment No. 6: Page 5, line 20, at end insert ("but the crop shall not be treated as grass if it is a cereal crop").

The noble Earl said: This amendment relates to interference with rights of way by crops. To understand it properly one must read Clause 1(5) at the bottom of page 4 which states: Where a crop other than grass has been sown or planted on any agricultural land the occupier of the land shall from time to time take such steps as may be necessary".

It goes on to describe what the steps are. Grass is a permissible crop over which one can walk and in respect of which one does not need a measuring stick. Therefore it follows that the definition of grass is extremely important. Halfway down page 5 of the Bill, subsection (3) describes it very fully indeed. It states: the clop shall be treated as grass if, and only if, it is of a variety or mixture commonly used for pasture, silage or haymaking".

There is a difficulty here. The Bill intends all the excepted crops, including cereals, to stand outside this description of grass. But all the cereals are in point of fact grasses. If that is the importance of this part of the Bill, which I believe it to be, it would suit both farmers and walkers if the matter were put right either one way or the other. There must be the exclusion which is described in the amendment.

Oats can be used for silage. In the past they were frequently used and there is no reason why they should not be used again. If the Committee will forgive me I shall read from the editorial column of this week's Farmers Weekly. It states: Tight corn profits mean that you need close to six tonnes per hectare just to cover the costs of a high input growing system. It is little wonder in the circumstances that mixed farmers are showing interest once again in whole crop conservation for stock feed".

One should be certain here that a crop of oats, even if it goes right through to combining, does not get away in a magistrates' court with being grass which could be commonly used for hay or silage. It is quite a fine point but it is worth while to make certain of it. I beg to move.

Lord Kimball

I have much pleasure in accepting the amendment. In doing so I thank the noble Earl, Lord Radnor, for his diligence and experience. It has enabled him to spot a point which had hitherto been missed. Despite all the careful scrutiny that the Bill had had by the working party, the lawyers, the officials of the Ministry of Agriculture, the Department of Transport —in fact three government departments—and the preliminary draftsmen and so on, this point did not surface. I am most grateful to my noble friend for having spotted it. I have much pleasure in accepting the amendment.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Amendment of s.329(1) of Highways Act 1980]:

Lord Gisborough moved Amendment No. 7: Page 5, line 43, after ("follows") insert ("closely").

The noble Lord said: This is a small amendment. It refers to the fact that some footpaths follow roughly round the outside of a field, cutting corners and so on, or are perhaps five yards in for some reason or other. These could be covered by the Bill in as much as they follow round the field. The amendment intends that a footpath, meaning a field-edge path, should be a field-edge path only if it goes closely round the edge of the field —in other words, effectively round the fence —and not if it roughly goes round it within five or six yards or whatever. It is not a very important point but there may well be cases where it will be useful to differentiate between one that goes roughly round the outside and one that is genuinely next to the fence. I beg to move.

Baroness Nicol

I should have said at the beginning of this exercise that as this is a Private Member's Bill I speak from this Dispatch Box on my own behalf and not on behalf of my colleagues.

I cannot support the amendment. The use of the word "closely" does not help to clarify the Bill and by causing uncertainty in the farmer's mind it could limit activities in which he could otherwise legitimately engage, such as disturbing a path which approximates to but is not on the field edge. Perhaps the noble Lord, Lord Gisborough, has not quite seen that point. I am sure that he does not intend to limit the activities of the farmer but that would be the effect of the amendment.

Lord Kimball

I hope that my noble friend will reconsider and not press the amendment. We all understand the point quite clearly but the definition we propose in the Bill has existed in legislation since 1968 and has not given rise to any difficulties in the court cases that have been brought.

The word "closely" does not clarify the definition in any way; rather it serves to confuse and could work against the farmer's interest. It might, for example, be interpreted as preventing a farmer from exercising his right to disturb paths which are close to rather than on the field edge, or it might lead to a farmer being prosecuted for such a disturbance. If on the other hand it is meant to imply that the path should exactly follow the field edge, it is unnecessary since this is already the interpretation placed by the courts on the existing term "follows". With that explanation, I hope that my noble friend will feel able to withdraw the amendment.

Lord Gisborough

I am grateful to my noble friend for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with an amendment.