Lords Sitting of 16 November 2000

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Winter Fuel Payments
Lord Higgins Lord Higgins asked Her Majesty's Government:
Whether winter fuel allowances in respect of past winters have now been paid to all men between the ages of 60 and 65 entitled to them.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, winter fuel payments in respect of previous years cannot be paid automatically but have to he claimed. However, such claims are not subject to any time limits. To date we have received around 950,000 claims from men for previous years; of those, 930,000 have been successful. An information campaign which began in April advises existing and potential customers of the changes.
Lord Higgins: My Lords, I thank the Minister for that reply, but what percentage of men between the ages of 60 and 65 entitled to such payments have still not received any winter fuel payments for any winter? What has been the administrative costs of making payments to them or of making provision for payments to them?
Last week, the noble Baroness said, in regard to pensions generally, that winter fuel payments will start from next Monday. In view of the Government's record on failing to make payments during the winter, is the noble Baroness aware that people are not interested in the date from which those payments will be paid but rather are interested in the date by which they will be paid? By which date does she expect all winter fuel payments to be made?
Baroness Hollis of Heigham: My Lords, there are a number of questions there. First, payments for those receiving £200 who are over the age of 65 will have started going out this Monday and that should be completed within the next four weeks. In the week following that, we expect to complete the claims that we have received so far for those who are under the age of 65; that is, men between 60 and 65. The reason that more payments have not been made is that the claims themselves have come in late. We had expected to complete the exercise by September but we have not done so because of the lateness of applications.
We cannot be absolutely sure about the number of people eligible. We thought that perhaps 1.9 million people might be eligible and we have received just under 1 million claims. But the basic test is that somebody must have been ordinarily resident in the
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UK on the qualifying week, which was the third week in September. Therefore, we need people to contact us, because three years ago they may not have been ordinarily resident or they may have had a household formation different from that which they now have and that may affect the payments. I hope that I have answered the noble Lord's questions.
Lord Ashley of Stoke: My Lords, is my noble friend aware that severely disabled people under 60 are just as vulnerable to the cold and are just as unable to pay for proper heating of their homes as any old-age pensioner? So in logic and in justice, why cannot the Government extend that winter fuel payment to those people as well?
Baroness Hollis of Heigham: My Lords, very many disabled people are over the age of 60 and will be receiving the winter fuel payment by virtue of that. But we have been subject to pressure from my noble friend to extend the winter fuel payment to disabled people, and I have been subject to pressure to extend it to people with young children or people with large families.
We do not have any present intention to extend the group of people to whom the winter fuel payment is paid beyond those who are currently eligible to it. As my noble friend will be aware, disabled people have received significant additional payments, including those referred to in the Pre-Budget Statement, which will help them properly to meet their additional costs and needs for fuel.
Lord Cledwyn of Penrhos: My Lords, is there no feeling for men above the age of 65?
Baroness Hollis of Heigham: My Lords, I may misunderstand my noble friend, but anybody over the age of 65 who is in receipt of a retirement pension automatically receives the winter fuel allowance. The Question refers to men between the ages of 60 and 65. After the European Court ruling, the Government either had to equalise the payment for women at 65 or for men at 60. As we did not wish to discriminate against women who had already been receiving the payment, we thought that we should equalise at 60.
Lord Forsyth of Drumlean: My Lords, given that there are so many hundreds of thousands of people waiting for their allowance from last year, was it not misleading of the Chancellor to suggest that a cheque was already in the post in respect of the £50 increase this year? Can we therefore be sure that that £50 increase will actually reach the people who have been promised it, in view of the Government's record of failing to get the money to pensioners in the past?
Baroness Hollis of Heigham: My Lords, I am sorry; I had hoped that I had answered that when I was trying to respond to the noble Lord, Lord Higgins. Those people who are already 65 or who are already receiving benefit will receive the £200 payment starting as of this Monday and running for the next four weeks. That has been made very clear.

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The problem in relation to men aged between 60 and 65 who are claiming for the first time is that their claims are coming in according to their activity, if I can put it that way. We can respond only when we receive the claims. Of the 950,000 claims that we have received, 930,000 have been successful and only 30,000 claims are still waiting to be paid. So I do not believe that the noble Lord's question was properly informed.
Earl Russell: My Lords, does the DSS hold any medical information on the comparative importance of fuel, insulation and nutrition in lowering the high figure of excess winter deaths? If it does not, will it try to discover some between now and the next uprating Statement?
Baroness Hollis of Heigham: My Lords, we have some information on what contributes to what are regarded as the excess deaths—I am sorry; that is an ugly phrase—of pensioners due to hypothermia, which are in the region of about 50,000 per year. We know that pensioners make up about 20 per cent of the population and that 50 per cent are fuel poor by virtue of the fact that their houses are poorly insulated; they have relatively low incomes; they need higher standards of heating; and—an important consideration—they tend to under-occupy in that very often one pensioner lives alone in a rather large house which he or she cannot afford to heat. That is why we have made those winter fuel payments universal to pensioners.

Asylum Seekers: Information
3.12 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
In the light of the MORI survey for the Reader's Digest, whether they have any plans to improve the standard of information available to the public about asylum seekers and refugees in this country.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, the Government recognise the need to provide balanced and honest information on asylum issues. Home Office Ministers and the department take all available opportunities to do that, to put the information in its proper context, and to challenge misinformation or misinterpretation. All of us—the press, politicians and others—have a duty to conduct the debate about asylum and immigration in an accurate and responsible way.
We have a strong commitment to raise the standard of information available to the public. The continuing development of the Immigration and Nationality Directorate's website is one example. It is scheduled to be relaunched in December with new pages on asylum.
We also recently published our strategy for integrating refugees into the United Kingdom entitled Full and equal citizens. The strategy sets out the
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Government's view on ways to enable those recognised as refugees to become full members of our society and to fulfil the undoubted potential that they have for their own benefit and for that of society as a whole.
Earl Russell: My Lords, I thank the Minister for that reply. Can he confirm the UNHCR figures produced in February this year that, within the EU in terms of the number of asylum applications in proportion to population, we were twelfth in 1998 and ninth in 1999? Therefore, does he agree that in relation to the figures we do not need to explain why we attract a flood of asylum seekers, but that we should consider whether we receive our share?
Lord Bassam of Brighton: My Lords, I believe that the figures mentioned by the noble Earl are broadly accurate. We should explain to everyone the contribution that those who seek asylum here can make to our society and we should do all we can to ensure that they are well integrated into a comfortable, multi-racial society that is at ease with itself. I believe that to be the wise strategy and that is exactly the strategy that the Government are pursuing.
The Lord Bishop of Durham: My Lords, can the Minister confirm that plans are in hand to increase the quality of information to asylum seekers, bearing in mind that there are cases of asylum seekers in the north-east of England being called for interview in Croydon at 10 o'clock in the morning?
Lord Bassam of Brighton: My Lords, I am grateful to the right reverend Prelate for that information. If he wants to draw to my attention specific difficulties that asylum seekers have experienced, I shall be grateful to receive them. We always seek new and better ways to inform asylum seekers of their rights and responsibilities. For that reason I am extremely pleased that we have launched our website, a copy of the front page of which I have here. It is designed for and targeted to those who advise and to those who seek advice in equal measure. I believe that it will be a useful addition to the work that we undertake.
Lord Renton: My Lords, as there are so many bogus asylum seekers and so many bogus refugees, should not all parties, including the Liberal Democrats, give full support to the Home Secretary in his efforts to stop such rackets?
Lord Bassam of Brighton: My Lords, we in the Government take a very dim view of any type of racketeering. The racketeering that has taken place in relation to the movement of human beings across the European continent is particularly reprehensible and has had tragic and fatal consequences. It is in everyone's interests that we oppose that. Equally, we must recognise the rights of those who quite properly seek asylum in our country. We have a long and proud

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tradition in that respect of which I am proud, as are the Government. I believe that we should all be proud of that.
Lord Alton of Liverpool: My Lords, does the Minister recall that, during the proceedings of the Immigration and Asylum Bill, many Members from all sides of your Lordships' House expressed concern about the way in which the voucher scheme would operate? Given that a review is currently under way, can the Minister ensure that consideration will be given to the way in which the vouchers are tendered? At the moment no change can be given even when small sums are involved, which can have an adverse effect on people who live on tiny amounts of money? Will the Minister also tell the House how much it costs to operate the voucher scheme and whether it gives us value for money?
Lord Bassam of Brighton: My Lords, I am content that the scheme provides value for money. As the noble Lord is aware, currently we are conducting a review of the implementation of the voucher scheme, which will take some time, but it will be completed in April next year. If the noble Lord knows of specific problems that individual asylum seekers have experienced when using vouchers, I shall be grateful to hear of them. We are dependent on people bringing forward such information in order to conduct a proper and effective review.
Lord Lipsey: My Lords, does the Minister agree with me that no amount of ministerial pedagogy will allay public concern over such issues unless combined with the correct policies? Therefore, is he encouraged by the recent poll carried out on behalf of the Rowntree Reform Trust that suggests that our policies are about right? For example, only 13 per cent of the public believe that people who want to come here just to escape poverty in their own country should be allowed entry. Equally, only 14 per cent consider that entry should be refused for people who have a well-founded fear of death and torture.
Lord Bassam of Brighton: My Lords, that interesting report has been drawn to my attention. The noble Lord has provided me with the background data. We should all take encouragement from its findings. My hope is that those findings will broadly be supported by all sides of your Lordships' House. They seem to match up to what the Government are trying to achieve and provide us with a valuable platform on which to promote greater integration. It is good for those seeking asylum here and good for our community as a whole.
Lord Avebury: My Lords, I congratulate the Minister on the website that he mentioned. Can he confirm that the figures on the Research, Development and Statistics Directorate website demonstrate that in the three months to 30th September this year there were 9 per cent fewer asylum seekers compared with last year, but that 14 per cent
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more of them finished up in detention on 30th September compared with the same date in 1999? When will the Government make progress in meeting the recommendation of the Chief Inspector of Prisons and many others that asylum seekers should not be kept in detention? Can the Minister assure the House that when Aldington and Harmsworth are completed they will not simply add to the total number in detention?
Lord Bassam of Brighton: My Lords, I am familiar with most of the statistics to which the noble Lord refers and I do not quibble with them. Oakington is making a valuable contribution to the way in which we manage this particular problem, and we have received very few complaints about its operation. I believe that when the other two centres are established they will enable us properly to conduct a fast-track procedure in the interests of those who seek asylum, in particular those with families. The system is working well and I am confident that when it expands it will continue to do so and will provide value for money and good quality accommodation.
The Lord Bishop of Portsmouth: My Lords, the question of heightening public awareness was raised at a meeting between the Prime Minister and Home Secretary and Bishops and other church leaders. Does the Minister agree that the information of which he speaks eloquently—we should like to hear more—should be about why this is a worldwide problem rather than that it is a problem? One in 120 people on this globe are homeless, which surely indicates that we should be looking in the direction of "why" as well as "that".
Lord Bassam of Brighton: My Lords, the right reverend Prelate speaks with great knowledge and wisdom on this matter. We need to raise public awareness, and much more should be done. After all, we are a caring and compassionate society, and this is a shared value of which we should be rightly proud and to which we all want to subscribe. However, a degree of proselytising goes with it, and the Government share that common objective.

Traffic Calming Measures: Effects on Ambulances
3.22 p.m.
Lord Trefgarne:
What is the estimated cost to the London Ambulance Service of the wear and tear caused by the traffic calming measures now in place in many London streets.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, it is not possible to identify the specific cost of repairs to the potential wear and tear caused by traffic calming measures. There may be some impact on the

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London Ambulance Service, but that needs to be seen within the context of a drive to reduce both the frequency and severity of traffic accidents, with clear benefits to the public and the health service as a whole.
Lord Trefgarne: My Lords, I am not opposed to traffic calming measures in principle, but is it not self-evident that these bumps in the road, some of which are very severe, will cause considerable additional wear and tear to ambulances and other vehicles, not to mention discomfort to the unfortunate patients inside them? Therefore, is it not a good idea to look again at the extent to which these measures are put in place, particularly the height to which they are built?
Lord Hunt of Kings Heath: My Lords, a balance must be struck. Road humps are arguably the most effective method to reduce vehicle speed, and when they are used to slow traffic to 20 mph or less they result in a 60 per cent reduction in accidents. That has a beneficial impact on the health service as a whole. Local authorities are required to consult ambulance services when they propose to install road humps. I believe that the best approach to this issue is to encourage the closest engagement between ambulance services and local authorities so that the benefits of road humps, where appropriate, are effected and issues which concern ambulance services—for example, the impact of road humps on their ability to respond to 999 calls—are very much considered.
Lord Davies of Oldham: My Lords, I declare an interest as president of the Royal Society for the Prevention of Accidents. I share the admiration for the London Ambulance Service, but if the DETR's assessment of the cost of one road death as being in excess of £1 million is accurate, does my noble friend agree that that puts into context the more marginal cost of the damage to ambulances from road humps?
Lord Hunt of Kings Heath: My Lords, that is right. If road humps reduce the number of people who are injured or killed as a result of road accidents, that must be a gain for society as a whole. Equally, I do not believe that we can overlook the impact which road humps can sometimes have on the ability of ambulances to respond to emergencies. For that reason, I believe that the best approach is to have close consultation and discussion between ambulance services and local authorities when the latter wish to install road humps.
Baroness Trumpington: My Lords, does the Minister have any statistics which compare motorcycle and car accidents? Does the noble Lord share my experience that motorcycles drive flat out between traffic calming measures and in many cases cause accidents?
Lord Hunt of Kings Heath: My Lords, the statistics for London during the period January to June 1999 reveal the following fatalities: 72 pedestrians, five pedal cyclists, 28 people riding powered two-wheelers,
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29 car occupants, one taxi occupant and one bus or coach occupant. It is difficult to conclude much from those statistics. However, in considering road safety strategy, whether or not motorcyclists drive safely must be a factor to be borne in mind.
Baroness Thomas of Walliswood: My Lords, does the Minister agree that if people observed a 20-mph speed limit there would be no need to spend money on road humps, and patients in ambulances could get to hospital without any discomfort?
Lord Hunt of Kings Heath: My Lords, that is undoubtedly true. Unfortunately, members of the public disappoint us in not obeying speed limits. Therefore, traffic calming measures are appropriate in many parts of the country. We need to ensure that traffic calming measures, including road humps, are placed sensitively and that emergency services, such as ambulance services, are fully consulted.
Earl Ferrers: My Lords, my noble friend Lord Trefgarne said that he was not averse to road humps. Is the Minister aware that I have a great aversion to road humps and traffic calming measures, which I believe are thoroughly dangerous? People are thrown about in the back of taxis and cars as well as in ambulances. Is the noble Lord also aware that some traffic calming measures, particularly in villages, consist of extending the roadside kerb into the middle of the road, with a piece in the middle of the road extended back, so that one goes along like a snake, which can be extremely dangerous in foggy conditions?
Lord Hunt of Kings Heath: My Lords, the noble Earl is perhaps not the most progressive Member of your Lordships' House.
Earl Ferrers: My Lords, the Minister should see me in a car going over a road hump!
Lord Hunt of Kings Heath: My Lords, that is the whole problem.

Flu Vaccine: Availability
3.28 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
What confidence they have that an adequate supply of anti-flu vaccine will be available to the National Health Service by the end of November.
Lord Hunt of Kings Heath: My Lords, by the end of November we expect all of the nearly 11 million doses ordered to have been delivered. This is enough to exceed our target of a 60 per cent uptake in people aged 65 and over and achieve a substantial rise in uptake among those at risk.
Lord Astor of Hever: My Lords, I thank the Minister for that somewhat optimistic assessment of future

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supplies. Given that there were supply difficulties early on, can the Minister confirm that the shortage of vaccine has been caused by Ministers failing to tell the vaccine companies of the extension of the programme for the over-65s in time to boost production?
Lord Hunt of Kings Heath: My Lords, I do not accept that that is the true position. We very much regret the problems in deliveries. However, my understanding is that the problem was caused by one manufacturer, Solvay. That company encountered problems in growing a strain of the vaccine which led to delay in some deliveries. We hope that by the end of this month most of the problems will have been overcome. The latest evidence I have to hand is that by the end of October we had achieved 46 per cent, which is well on the way to the target of 60 per cent.
Lord Clement-Jones: My Lords, the Minister blamed a particular drug company for failure to satisfy demand for the vaccine. However, will not 11 million doses still be inadequate to meet public demand and did not the Government order the vaccines far too late this year? Will the Minister undertake next year to review the dosage as a matter of urgency and ensure that supplies are ordered early in the year as opposed to in May, as was the case this year?
Lord. Hunt of Kings Heath: My Lords, each year in which we develop the flu vaccine programme we need to review its success and any problems which arise. Noble Lords will be aware that the 60 per cent target which we accepted for this year was based on a recommendation of the Joint Committee on Vaccination and Immunisation. That is an independent statutory committee on which we rely for advice.
I regret that there have been shortages in some GPs' surgeries, but I am satisfied that that will be put right by the end of the month. I am also satisfied that the campaign is leading to a good take-up.
Baroness Gardner of Parkes: My Lords, the Minister says that supplies will be available. Has he spoken to any GPs about the problem? Is he aware that they are concerned that many of the vulnerable people who visited their GPs in October but were unable to have the vaccine will not return to the surgeries? Some GPs have been promised a bonus if they succeed in giving the vaccine to 60 per cent of the target group. However, as some people will not return to receive the vaccine, there is no way in which the target can be met. Is the department examining that issue?
Lord Hunt of Kings Heath: My Lords, I have spoken to a number of practitioners about the issues facing them in relation to the flu vaccine. It is a matter of regret if members of the public visited GPs' surgeries but were unable to receive the vaccine. However, I believe that through the effective communications GPs have with their patients, and through the general
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campaigns which we have been running, those who were not successful first time round will be encouraged to return and receive the vaccination.
Baroness Gardner of Parkes: My Lords, as there appears to be time, I want to ask the Minister another question. When the matter was discussed after the last flu epidemic at the beginning of this year, it was suggested that the vaccine might be available to everyone working in hospitals and NHS services because many of them were suffering from flu and unable to nurse others. Has anything been done about that this year? If not, can something be clone next year?
Lord Hunt of Kings Heath: My Lords, I am pleased to be able to tell the noble Baroness that we took that suggestion to heart. We made it clear to all NHS employers that they had to offer immunisation to all staff involved in the delivery of care or support to patients.
Alongside that, social service employers were also asked to consider offering immunisation to all staff involved. That is taking place and a considerable number of NHS and social service staff affected are taking advantage of the flu vaccine. This is the first year in which we have made such a concerted attempt and we shall monitor the success in uptake in order to see what lessons can be learnt. However, I am satisfied that this year we are better prepared in relation to the flu vaccine than has ever been the case.
Lord Brougham and Vaux: My Lords, perhaps the Minister will be able to broaden my knowledge. I understand that there are different types of flu. How do the Government or anyone else know which vaccine to produce?
Lord Hunt of Kings Heath: My Lords, intelligence about flu is obtained from a variety of sources, including the World Health Organisation. The flu vaccines currently contain versions of three flu viruses: Influenza A(H3N2), Influenza A(H1N1), and Influenza B. Arising from that, this year's recommended vaccine strains are an A/Moscow/1099- like strain; an A/New Caledonia/20/99-like strain; and a B/Beijing/184/93-like strain.

Urban White Paper
3.35 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, with the leave of the House, I shall now repeat a Statement that has been made in another place by my right honourable friend the Deputy Prime Minister on the White Paper, Our Towns and Cities: the Future. The Statement is as follows:
"The Government have today published a White Paper on the future of our towns and cities. It is accompanied by two documents: The State of the English Cities and Living in Urban

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England: Attitudes and Aspirations. These set out the supporting analysis. Copies have been placed in the Library and we shall shortly be publishing our rural White Paper.
"A common message runs through these documents. They are about people, places and prosperity. We want to create sustainable communities in which everyone, no matter where they live, can enjoy a good quality of life—communities in which economic prosperity and social justice go hand in hand.
"I am sure the House will agree that we have some of the best towns and cities in the world. We have famous historical and cultural centres; dynamic commercial areas; pleasant suburbs; and seats of learning that command respect the world over.
"The previous urban White Paper was produced by the previous Labour Government more than two decades ago. It focused narrowly on inner-city areas. We now understand the need for a much broader approach that takes in all urban areas.
"Much has happened since that urban White Paper. Cities are powerful engines of growth. But in the early 1980s many of them were hit hard by economic changes. The approach then regarded economic behaviour as detached from its social context and in the years that followed many areas suffered from neglect; poor management; inadequate public services; lack of investment; and a culture of short-termism. Our aim is to reverse that legacy of decline and bring about a lasting urban renaissance.
"There are signs of hope. As our Attitudes and Aspirations survey shows, 85 per cent of people are satisfied with the areas where they live; the rate at which people are leaving our cities is slowing down; and people are moving back into our city centres.
"We face big challenges. People and jobs have been leaving our great cities. People are increasingly living in smaller households or alone, with the result that many more households will need to be accommodated over the next 25 years. Some neighbourhoods suffer from a poor quality of life and a lack of opportunity. Economic performance in some areas is weak, with a knock-on effect on the surrounding region.
"Over the past 20 years, out-of-town shopping centres have taken the heart out of some of our urban areas; 30,000 hectares of our green belt have been built over; and playing fields have been sold off for short-term profit without regard for the health of the communities they served.
"On coming to office, we took immediate action to alleviate the worst problems and began laying the foundations for the long-term strategy which we are now bringing together in the White Paper. We merged the Departments of the Environment and of Transport to encourage a more joined-up approach to solving problems. We got hundreds of thousands of young people back to work with the New Deal. We provided an extra £5 billion to begin tackling the
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£19 billion housing repair backlog we inherited. We produced the integrated transport White Paper and the £180 billion 10-year plan to rectify decades of under-investment in our transport infrastructure. We began tackling the problems in our most deprived communities through the £800 million New Deal for Communities and the Social Exclusion Unit. Three hundred and fifty million pounds over three years have been committed to regenerate coalfield communities decimated by the previous government's policies.
"Modernising local government has been a priority. We have legislation to make councils more efficient and more accountable to local people. We established the regional development agencies to drive forward economic growth and regeneration in the regions. We are modernising the planning system and have set a new target of getting 60 per cent of new housing on developed land. The quality of construction is improving following John Egan's report, Rethinking Construction. We set up the Urban Task Force under Lord Rogers to look at the causes of decline in our urban areas and recommend practical ways to bring people back into our towns and cities.
"The White Paper builds on this groundwork. It sets out a long-term strategy that will bring lasting benefits to all who live in our towns and cities—a strategy which recognises, in Lord Rogers' words, that
`people make cities, but cities make citizens'.
"There are four key components of our strategy: improving the quality of life through a partnership with local people; sustainable communities in attractive, well-kept towns and cities; economic growth and shared prosperity in all urban areas; and good quality services.
"I shall deal first with quality of life. In this White Paper, we commit ourselves to work in partnership with all concerned to make all areas 'places for people'. It is not just a matter of bricks and mortar. People need jobs, a decent home, good public services and an attractive and safe environment. To be successful, plans need to be shaped by local people for local people.
"A clear message from the regeneration projects over the past 20 years is that local people must be fully engaged from the outset. All too often this has not been the case.
"Local authorities have a central role here. A good council is one that listens to, leads and builds up the local community. We want councils to work through local strategic partnerships and to involve the community, service providers, business and voluntary organisations in producing community strategies. These should set out an action plan to improve their town or city as outlined in the White Paper.
"Secondly, clearly, we want sustainable communities living in attractive, well-kept towns and cities, which use space and buildings well, and which are cleaner and less congested. My right

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honourable friend the Chancellor announced a £1 billion tax incentive package last week to promote the urban renaissance. As a result, more investment will be attracted into disadvantaged areas by the removal of stamp duty from all property transactions in those areas; the re-use of brownfield land will be encouraged through the provision of accelerated tax credits for cleaning up contaminated land; and more homes will be provided as a result of the 100 per cent capital allowances for creating 'flats over shops' and VAT reforms to encourage the conversion of properties for residential use.
"The new urban regeneration companies we set up last year are beginning the process of transforming parts of Liverpool, east Manchester and Sheffield. We plan 12 more to tackle the hardest hit local areas in every region. One can often tell the health of an area by the quality of its public realm, particularly its parks, play areas and open spaces. These are the lungs of our towns and cities. We have set up a comprehensive programme including demonstration projects and an extended Green Flag awards scheme—like the Blue Flags scheme for beaches—to encourage and recognise excellence.
"Planning has a fundamental role to play. I can announce today that, in response to Lord Rogers' report, we will conduct a fundamental review of planning policy guidance note 1—General Policy and Principles—to put the urban renaissance at the heart of the planning system.
"Simplifying compulsory purchase will make it quicker and easier to unlock land and fairer to everyone involved. There will be new guidance and, ultimately, legislation.
"There is a shortage of people with the necessary range of skills to drive forward the urban renaissance. We are therefore setting up regional centres of excellence to improve skills and training in each region. The first two will be in the North West and London. In addition, we will also start a programme of international secondments to learn from the best in the world.
"Our town centres will be stronger. We will protect them from new out-of-town schemes. We will improve them through the town improvement schemes with local funding as proposed in the local government finance green paper.
"The millennium communities at Greenwich and Allerton Bywater have shown what good design can achieve. The Greenwich millennium village will be an attractive, mixed tenure development, with homes within walking distance of shops, employment and services, and with good open spaces. Above all, it will be environmentally sustainable, using 80 per cent less energy and 30 per cent less water than a similar conventional development. We will build five more millennium communities in different parts of the country.
"Our new English Cities Fund is designed to encourage the maximum growth in private investment in priority areas. This is vital if we are to
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secure the widespread regeneration we seek. The fund will bring up to £250 million into new mixed-use projects.
"The third component is creating the conditions for economic growth and shared prosperity in all towns and cities. We want to see more wealth generated and social justice side by side. Growing disparities and exclusion from our increasing, national prosperity are unacceptable. If towns and cities are to be successful economically they need effective support and a clear regional lead. We have therefore given the regional development agencies more money and much more freedom to use those funds to best effect for the people of their region.
"Access to investment capital is also vital to economic growth. That is why the Chancellor announced last week that we would be consulting on a new community investment tax credit to encourage private enterprise in under-invested communities. We will also work closely with the venture capital industry to set up the first community development venture fund to support new businesses in disadvantaged areas.
"Although under this Government there are a million more people in jobs, there is a mismatch between the jobs that are available and the skills of those seeking work. We need to ensure that local people have the skills businesses are seeking. We are therefore setting up the new learning and skills council with a budget of £5.5 billion a year—up £600 million. This will bring together funding for education and training to ensure a coherent approach that benefits both learners and employers. In this way we hope to encourage life-long learning and to reduce the skills mismatch.
"Any efficient, modern city requires a good transport system. That is why the 10-year plan for transport emphasises improving bus services and commuter railways and why it will fund up to 25 new light rail lines.
"The fourth component is good quality services. By 2003–04 there will be £139 billion a year for key services: health, education, transport., housing, criminal justice as well as culture, leisure and sport. That is £33 billion more than now. It amounts to an average annual real increase of nearly 7 per cent a year for the next three years. This extra money will be backed by tough targets to ensure that we see substantial improvements—with the greatest change in the most deprived areas.
"We have set ourselves the target of making sure that all social housing is of a decent standard within the next 10 years. We are providing the resources needed to make this possible.
"Providing homes for key workers is essential if we are to have good quality services in our major conurbations. We have allocated £250 million over the next three years to help key workers buy homes. We will shortly be setting out the details following on from the housing Green Paper.

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"We are raising educational standards by expanding the Excellence in Cities and Sure Start programmes; by extending free education for three year-olds; and by attracting more people into higher education through the Excellence Challenge. Only today my right honourable friend the Secretary of State for Education and Employment announced that performance in the first Excellence in Cities areas has improved much faster than elsewhere.
"As my right honourable friend the Secretary of State for Health made clear earlier this week, your health should not depend on where you live. We are improving health services and reducing inequalities through a major expansion of investment in the health service.
"We have set tough targets for reducing crime and are backing this with an enhanced crime reduction programme, additional funding for the police, and a 10-year drugs strategy.
"We recognise that the most deprived areas need extra help and we are determined to narrow the gap between them and the rest of the country. That is why we have set up a Neighbourhood Renewal Fund of £800 million and will shortly be setting our action plan for neighbourhood renewal.
"There have been many attempts to change our towns and cities. Too often they have been partial and limited, looking at buildings or the economy in isolation, often forgetting people. This White Paper is broad in its scope and long term in its perspective. We deal with towns and cities struggling to recover from decline as well as those where the pressures of growth need to be carefully managed. We have set out the way to achieve this and have provided the money to back it up. But government on their own cannot deliver. We will lead and enable regional and local partners to transform our towns and cities. We will get decisions taken at the right level and transfer real power from Whitehall to Whitechapel.
"Lord Rogers called for an urban policy board to track progress in implementing our proposals. We will put urban issues at the heart of government by setting up a new Cabinet Committee. This will be advised by a new group, bringing together community, academic, professional, private and business interests. We will be accountable. The Cabinet Committee will prepare for an urban summit in 2002 which will take stock of progress. We will also publish a new 'State of the Cities Report' in 2005.
"I recently visited a deprived pre-war estate in my constituency. There was litter, graffiti, empty houses and a general air of decay, but a strong sense of community. I met a woman who had lived there all her life. She said, 'I love living here, but I don't want to go on living like this, John'. We must not fail people like her.
"This White Paper sets out our long-term strategy. We cannot deliver on our own. So I am calling on local authorities, business, planners and
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developers, voluntary and community groups, and, above all, local people to work together to bring about an urban renaissance.
"In short, this White Paper is about giving people more say over shaping their future; making sure that people can live in attractive and well-kept towns and cities; creating and sharing prosperity; and ensuring that we have places with good quality services which meet people's needs. It is a comprehensive strategy, the first for nearly a quarter of a century. It represents a commitment by the Government to put people first, and to ease the pressure on the countryside by attracting people back into our towns. I commend this White Paper to the House".
My Lords, that concludes the Statement.
3.49 p.m.
Lord Dixon-Smith: My Lords, the whole House will be grateful to the noble Lord for repeating the Statement made in another place by his right honourable friend. The White Paper is welcome in many ways. In particular, it is welcome for its recognition that solving the problems of urban areas requires the participation of so many different, separate and diverse bodies, all a part of our community and all required to work together for success.
I join in the tribute to the noble Lord, Lord Rogers, for his very stimulating and interesting report on urban renewal. He brought a fresh eye and a modern look to what is in fact a very old problem. I well remember a study carried out in Essex in the late 1960s on urban regeneration which looked particularly at housing densities. In those days—a long time ago—it was recognised and officially recommended that for inner urban areas the maximum height anyone ever needed to go to maximise housing densities was five or six floors. I welcome the Secretary of State's acceptance of that philosophy. He has recognised that, for humane housing, terraces have a good deal to commend them.
The fact of the matter is that this planning White Paper is very well planned. We have seen three-and-a-half years of relative inaction in this field. Now, as we head towards another election, the Government have realised that they need to have a great deal hanging out in front for the public to see. Therefore, we have had promises of expenditure, many of them long-term strategies which the Government themselves may not survive long enough to implement. That is a reality. The White Paper is well planned and I congratulate the Government on that. But whether that will influence the public, who have seen some delay in bringing forward these proposals, remains to be seen.
Another point needs to be made—the Minister will recognise this one. We need to be extremely careful when we set out to measure output and pretend that measurements of expenditure are measurements of output. We have heard promises of large increases in investment over time. Where the money supply to an organisation is expanded very rapidly—the Minister who, like me, deals with local government will

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recognise this point—there is need for extreme care if one is to avoid inefficiencies in the use of that resource. We have spent a great deal of time arguing across the Dispatch Boxes over how to get best value out of local government. The same principles that apply there will unquestionably apply in the application of resources to improve our urban communities.
I note that there is to be a review of PPG1, particularly with regard to compulsory purchase. On page 58, the White Paper mentions both Leicester and Medway as being examples of authorities which are already using their powers successfully to regenerate communities. The White Paper refers to stimulating the regional development agencies into doing more. If communities are already acting successfully in this field—and they are—I am not absolutely convinced that we need to change the procedures for compulsory purchase or confuse many of the issues by introducing the regional development agencies into this area.
Local government at large will welcome the recognition in the White Paper that it has a large part to play, both through the planning process and through the services it provides. Local government has a strong influence on the ethos and success of its communities. That applies whether the community happens to be London, under its mayor, one of the metropolitan boroughs, a county or an ordinary town. Good communities with active participation make good towns. There is nothing like people coming together to pull the community forward. Of course, there have always been areas with intractable problems. That is particularly the case in inner city areas.
Housing is expensive because people can afford it. That may be a statement of the blindingly obvious, but if people could not afford houses, prices would not be where they are. But there are acute problems for essential workers in city centre areas. It is disturbing to read in the latest edition of Housing Today that the cost of new building is threatening housing associations' ability to provide social housing. It is a problem to which there is no easy answer.
A great deal could be done. But substandard and unoccupied housing in inner city areas will continue to be a problem for as long as green field development has a VAT privileged position over repairs to, and renewal of, inner city property. That is a long-standing problem which we have raised and debated on a number of occasions. It is not mentioned in the White Paper. That is a matter of regret.
Nonetheless, the White Paper is welcome. It will not he an absolute solution but it will certainly stimulate action. If it does that, and if our communities respond to that stimulation, I have no doubt that in a few years' time many communities will be in a much better position than they are today.
3.57 p.m.
Baroness Maddock: My Lords, I thank the Minister for repeating the Statement on the White Paper made in another place by his right honourable friend. We welcome the vision outlined in the paper. To be honest,
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who would not? Our vision is one of towns, cities and suburbs offering a high quality life and opportunities for all, and not just the few. Our vision is one of attractive and well-kept towns and cites, places that are environmentally sustainable, and of people sharing in the prosperity. It is described as a new vision. Many of us have been waiting for a long time to see that vision realised in our towns and cities. In many places some of the vision has been realised.
As recognised in this House and in another place, we owe a lot to the noble Lord, Lord Rogers, not only for bringing to our attention the urgency of taking action in our urban areas but also for bringing forward fresh thoughts and new ideas. The challenge is to make it happen. To make the vision become a reality, several steps need to be taken. Various levels of government will need powers to enable them to carry out certain tasks and they will also need resources. Incentives will be important in encouraging people to do what is required of them. Furthermore, realistic targets will have to be set if the Government's vision is to be realised. I shall say more on that subject in a few moments.
On the question of powers, the Government say that they want to look carefully at planning law. That is welcome. The White Paper—I have not had enough time to read all of it and some of the answers to my questions may well be in the document—states that the Government will look at planning law and that they will set up a commission or other body to do that. Perhaps the Minister could indicate the timescale here, because this is an urgent matter; indeed it is even more urgent now than when the Government came to power three and a half years ago.
Perhaps I may turn to resources. I should have liked to see in the White Paper an indication that the Government recognise that there are many different pots of money for which councils and others may bid and secure. I hope that the new Cabinet committee to be set up by the Government will examine ways of rationalising these procedures. Having too many pots of money on offer is not an efficient way to progress matters.
Another important area for which additional resources are needed is addressing the problem of the condition of our housing stock. I have not yet had a chance to read the relevant sections, but there appears to be little in the White Paper as regards what will be done in this area. It is an urgent matter and, indeed, it is one that we have discussed in this House on previous occasions. I hope that the Minister will be able to clarify the position. At the same time, can the Minister tell the House how much new money will be involved? Some of us harbour suspicions that we are told several times about allocations of the same money. Perhaps the Minister will confirm the position as regards new money.
Can the Minister also tell the House how the Government plan to help local authorities to meet their extra responsibilities, in particular their financial commitments? In this House and in the other place, we are fond of placing extra duties on local authorities—

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I, too, have supported legislation of that kind—but the authorities do not always have access to the necessary resources to implement those duties.
I shall turn now to incentives. We welcome some of the incentives which were announced by the Chancellor last week because they will help to progress some of these policy initiatives. However, like the noble Lord, Lord Dixon-Smith, I am disappointed that we have heard only silence on the harmonisation of VAT and on the matter of a tax on greenfield development. I shall refer to another tax matter that affects local authorities. The White Paper mentions the possibility of holding a consultation on the question of a local tax for certain areas. Perhaps the Minister could expand on that part of the Statement and indicate whether a timescale has yet been planned.
I should have liked to see more emphasis placed on the need for sustainability, in particular as regards increasing the energy efficiency of buildings—I acknowledge that this was mentioned briefly—and the proper use of other resources, such as water. Furthermore, will targets be set on improving the atmosphere within our cities? Much talk has taken place on setting targets for transport, but the need to get people out of their cars, thus improving the air we have to breathe, is also a matter of great importance.
Perhaps I may conclude by returning to the issue of targets. Have the Government put in place targets as regards how many houses will be brought up to a reasonable standard; how many empty homes they wish to do away with; bringing back into use property over shops; and how many people can be persuaded not to use their cars? If there is to be a Cabinet committee that will report to an urban summit, how will it be able to tell us what it has managed to achieve over the years if targets are not set at the beginning?
We welcome the joined-up nature of the White Paper. We now want to see joined-up thinking in terms of finance and in terms of sustainability. I hope that the Minister will be able to respond to some of the questions that I have put to him this afternoon.
4.4 p.m.
Lord Whitty: My Lords, I am very grateful to the noble Lord, Lord Dixon-Smith, and to the noble Baroness, Lady Maddock, on the Opposition Front Benches, both for the general welcome they have extended to this report as well as for their thanks for the work carried out by my noble friend and colleague Lord Rogers of Riverside. This White Paper has drawn much of its direction and inspiration from that work.
I would also endorse the indication given by the noble Lord at the beginning of his remarks; namely, that if we are going to deliver in this field, it is extremely important to establish a substantial degree of working together, both at the local level and between national bodies and local authorities. That applies in particular to local government itself. I am therefore pleased to be able to say that local government bodies of all political complexions,
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through the Local Government Association, have welcomed the report and now look forward to working together to deliver those aspects of the White Paper which fall within the jurisdiction of local authorities. Furthermore, they will take the lead in their local communities. The development of community strategies at local authority level will form an important delivery mechanism for all the areas covered by this White Paper.
The noble Lord referred to a number of matters. He mentioned our approach to housing and housing densities. It is certainly the case that we recognise that the pressure on housing—as a result of the changing demographic structure of households—means that we shall need to provide more of the kind of high-quality terraced Victorian and Georgian housing which has given so many such a good quality of life. We need to be able to match those standards of housing over the coming century. The only way in which we shall square the need to regenerate our urban areas with the need to restrict development on greenfield sites and thus impingement on our rural areas is to have sensible targets for housing and sensible approaches to the kind of housing of which local authorities and their planning systems will approve.
I also agree with the noble Lord that expenditure is not an output, it is an input. We are concerned that we should establish clear measurements of the output that we shall achieve over the coming period and that the very substantial expenditure which we shall invest in services in urban areas yields the kind of results we wish to see. Some actions have already produced good results. Indeed, I would quarrel with the noble Lord on his mild, but nevertheless slight note of dissent when he referred to the "relative inaction" of the past three years. As regards the financing of urban services, the improvement of transport systems through local transport planning, increased investment in affordable housing and money allocated to local housing authorities to improve their own housing stock in the area of social housing, all of these have already yielded significant results in terms of increased jobs available in our cities, in improved housing and in reductions in crime. All of those improvements are measurable for the future. To that end, we shall seek equally measurable and clear results gained as a result of the increased expenditure and changes to a more strategic approach which is being adopted in the White Paper.
The noble Lord referred to the importance of enabling essential workers to live in our inner cities. It is vital that the approach to housing—some of which will be covered in more detail when we announce the action shortly to follow the publication of the White Paper—meets this need. We have already set ourselves the target of bringing all social housing up to a decent standard and of helping home ownership through schemes such as the "home buy" scheme and, more important, the new "starter home" initiative. Such schemes will assist key workers in areas of high housing demand. I agree that it is extremely important to ensure that key workers who support our cities and provide the services that we need are able to live within them.

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The noble Lord was slightly disparaging about the need to re-examine the whole area of compulsory purchase. No doubt he will agree that there is a certain amount of archaic difficulty attached to the current compulsory purchase regime which often restricts desirable developments. These arrangements need to be reviewed; indeed, much of the legislation goes back to the 1840s. I am sure that the noble Lord is aware of that—not that he was personally around to see it, but on occasion it seems as though he could have been, given his long career in local government. This matter needs to be addressed.
On a more serious note, the noble Lord attacked the role of the regional development agencies. By and large, RDAs have been welcomed by the business community and by those who seek the regeneration of our urban areas as well as some of our rural areas. The role of the RDAs is to act as catalysts. That is a vitally important component in the development of economic prosperity. I hope that the main Opposition party will reconsider its somewhat outdated opposition to the existence of the RDAs. They are performing a great service. In this context, as in others, they will continue to deliver many of our economic aims.
The noble Lord and the noble Baroness referred to the question of balance in the VAT regime between greenfield and brownfield sites. I am aware of the arguments on this front and the points made by the noble Lord, Lord Rogers, but the package put forward by the Chancellor of the Exchequer last week provides a targeted rather than blanket favouring of developments and conversions within urban areas. The combination of measures introduced in the Pre-Budget Statement—the exemption from stamp duty, the accelerated payable tax credits, the 100 per cent allowance for creating flats over shops for letting and the package of VAT reforms to encourage additional conversions—is a much more targeted approach. It will help develop brownfield sites and thereby reduce the pressure for building within our countryside and in the non-urban areas. It is a co-ordinated approach across urban areas which will also benefit rural areas. We shall be issuing our rural policy White Paper before the end of the month.
The noble Baroness, Lady Maddock, referred to resources. There are substantial references to resources; I shall mention one area. An extra £33 billion has been announced relating to services in urban areas and there is the £1 billion package from the Chancellor. But, of course, some is still to come through the review of local government finance, which will, I hope, have a comprehensive "single pot" approach to give local authorities more flexibility to meet their own aims within local areas.
There are references to how we will improve the planning system, both here and more generally, and there will be both national targets—as there are already in relation to transport and air quality, for example, to improve the quality of life in our cities—and local authority targets. All of this will need to be addressed and reported on in time for the urban summit in 2002.
4.13 p.m.
Baroness Blatch: My Lords, for about seven years as a Minister in the previous government, I was privileged to be a sponsor Minister for Cleveland and Teesside, where vast acres of polluted land were converted successfully in a very good regeneration programme. That regeneration programme can be repeated in the—
Baroness Farrington of Ribbleton: My Lords, perhaps I may draw the attention of the noble Baroness to the fact that the 20 minutes is supposed to be for Back-Benchers to ask questions and make brief comments.
Baroness Blatch: My Lords, I am certainly not aware that anyone on this Bench can be prevented from speaking in a debate such as this. Unless I am prevented by the whole House or by the Clerk, I should like to finish my point.
Lord McIntosh of Haringey: My Lords, the Companion is very clear: it refers to Back-Benchers. The noble Baroness, Lady Blatch, is not a Back-Bencher.
Baroness Blatch: My Lords, I am speaking from the Privy Council Bench.
Lord Greaves: My Lords, page 17 of the White Paper refers to Blackburn and Ipswich as being "smaller towns". Do the Government understand that some of us are a little alarmed that large towns such as Blackburn and Ipswich can be described as "smaller towns". Throughout the north of England—in the North-East, Yorkshire and East Lancashire where I live—there are many towns with populations as low as 10,000 people which have real inner urban area-type problems and deprivation. Will the Government guarantee that, for the first time, small towns with such problems will get a fair share of resources?
Lord Whitty: My Lords, I am happy to acknowledge the noble Lord's point. Compared with many of the towns which will benefit from the approach in the White Paper, Ipswich and Blackburn will look like very large towns indeed. I am happy to tell him that we recognise the significance of all towns in this context. Every town and city is different. The LGA statement today said that it was delighted that the Government have ruled out the "one size fits all" solution. This approach will meet the problems and ambitions of the towns in the part of the country to which the noble Lord referred. I should also mention that within the rural policy White Paper we will deal specifically with the issue of market towns.
Lord Filkin: My Lords, perhaps I may ask the Minister about the challenge of leadership in urban areas, particularly in metropolitan areas. I warmly welcome what has been said about the role of local authorities and I acknowledge the importance of the contributions of regional development agencies. But

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for many of our metropolitan areas, where some of the greatest challenges for urban regeneration exist, the core city is a very small proportion of the total functional area. No one in their right mind would argue for a reorganisation of local government in those areas, or simply think that regional government—were it to come—would itself be an answer to that. The functions and issues lie at sub-regional level. The challenge perhaps seems to be how one encourages local authorities, the private sector and the voluntary sector to work on problems which are wider than the individual local authority without having structural change. I am therefore particularly interested in the comments made by the noble Baroness, Lady Maddock, about trying to find appropriate incentives to promote that kind of joint working.
Lord Whitty: My Lords, I agree with my noble friend that many of these problems will need to be addressed at levels higher than the individual local authority and lower, at ward level and below. Having a comprehensive approach and flexibility over funding ensures that we are able to encourage co-operation between local authorities and across local authority boundaries. Again I emphasise—particularly to the noble Lord, Lord Dixon-Smith—the importance of the role of the RDAs in helping to engender this kind of sub-regional co-operation.
Lord Alton of Liverpool: My Lords, I welcome the general thrust of the White Paper. Perhaps I may press the Minister to return to the issue of housing. First, I should like to ask him about the use of the compulsory purchase powers, to which he alluded earlier, and whether they will be used particularly in the context of empty houses, which can be such a blight on so many areas. The Minister will be aware that in many urban areas they become a breeding ground for vermin; they are tinder boxes and sometimes become places from which drugs are sold. Often they stand empty for many years on end, much to the frustration of the people living in those areas. The cancer then spreads through the whole of the terrace and then through the whole of the estate. It is probably one of the most pressing needs. Will the compulsory purchase powers be used particularly to tackle that problem?
Perhaps the Minister will also say a word about ownership of property. Does he agree that one of the great success stories of the past 30 years has been the dismantling of the municipal empires and the giving of power to tenants? Does he further agree that that revolution needs to be continued with a radical handing-over of power to the tenants by giving them control through housing co-operatives or through personal home ownership? That is the best way of giving people a real stake in their community.
Lord Whitty: My Lords, as to the noble Lord's first point, I recognise precisely the kind of situation he referred to in some of our inner cities. It is important that local authorities and developers can put together packages which are not inhibited by a failure to
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acquire the ownership of derelict and often abused properties. The holistic approach that we are encouraging will help in that direction.
So far as concerns compulsory purchase, we are engaging in a review and, as I indicated, because of the slightly archaic nature of the legislation in this area, that review may require us to bring before your Lordships legislation to improve the powers to the extent that the noble Lord wishes.
As to ownership of housing, I partly agree with him. I certainly believe that giving power and responsibility to all forms of tenure—whether it be to owners, tenants in the social housing sector or tenants in the private sector—is very important. If we take responsibility, we take pride. Taking responsibility for the future of where we live makes a great difference. I believe that that can be achieved under all forms of housing tenure—local authorities, housing associations, the private sector and owner occupiers. Some of the decisions on the exact mix of housing ownership and housing tenure are best kept to a local level.
Lord Naseby: My Lords, last weekend, when I was dusting my books, I came upon the national plan of Lord George-Brown. It was full of aspirations, part of which concerned urban renewal. But that did not happen. As the Minister quite rightly praises local government, perhaps I may ask him, first, whether he thinks that local government will welcome the prospect of elected local regional councils—or is that particular aspect now put on the back burner? Secondly, if he is to look at compulsory purchase powers, will he look at the French model, which is considerably more generous to those who are being compulsory purchased and therefore tends to encourage them to co-operate a lot quicker? Finally, in relation to regional transport, is the Minister able to tell the House the exact proposals for the privatisation of London Underground, for which we have waited for three and a half years? Have they now been agreed by the Government, so that they no longer have White Paper status but have some finality to them?
Lord Whitty: My Lords, my noble friend Lord Macdonald of Tradeston has frequently explained the situation in regard to the PPP for London Underground, with which we are proceeding. Contractual arrangements will be announced when appropriate.
As regards the noble Lord's earlier questions, regional assemblies have by and large been welcomed on the voluntary basis on which they are established at the moment by local government. In some parts of the country there is a clear desire for an elected regional assembly. We have indicated that we shall establish such regional assemblies as and when there is a clear demand in the regions for them. As I say, the view differs in different parts of the country. There is substantial demand in the North East and to some extent in the North West, but less so elsewhere.

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In relation to the French system of compulsory purchase, and indeed planning in total, we are taking into account a number of aspects of European models in the planning and compulsory purchase area of our review. So watch this space!
Baroness Uddin: My Lords, I am delighted to see the White Paper, although, as mentioned, there has not been time to study it closely. Will the Minister commend the relentless and long-standing efforts of Tower Hamlets and other councils to regenerate their areas in extremely difficult circumstances over the past 20 years? Will he do so, however, with one reservation; namely, that the ethnic minority communities were not able to take a strong lead in any of the quangos set up as a result of some of those initiatives? Will the Minister assure the House that he intends to take seriously and redress that issue? Will he give a further assurance that, wherever urban renewal takes place in a new manner, the ethnic minority communities will not just be pandered to in terms of taking part, but that steps will be taken to ensure leadership from those communities, so that they, as well as the rest of the country, will be able to experience the sought-for urban renaissance?
Lord Whitty: My Lords, my noble friend is absolutely right. It is important that the communities in our inner cities, many of which are of multiple ethnic origin and background, must be fully involved if we are to deliver a better quality of life for the city as a whole. It is important that all the schemes, whether they are backed nationally, or whether they are produced at local level, as I hope most will be, engage the ethnic minority communities. I recognise both the efforts of Tower Hamlets and the problems within that area which is one of the most deprived in this country. I hope that we shall see the full engagement of the whole community in helping to redress the situation.
Lord Marlesford: My Lords—
The Earl of Listowel: My Lords—
Baroness Farrington of Ribbleton: My Lords, I think there is time for both noble Lords. Perhaps we should hear the noble Lord, Lord Marlesford, followed by the noble Earl, Lord Listowel.
Lord Marlesford: My Lords, does the Minister agree that one of London's greatest assets is the River Thames? The Thames is much cleaner than it was, and much of the development in Docklands has been very successful. The Minister can presumably give some credit to the previous administration for both those aspects. Why, on page 134 of the White Paper in the section on London, is there no mention of the River Thames? Is the Minister aware, to take just one example, that at this very moment, between Vauxhall Bridge and Chelsea Bridge on the north side of the Thames, new private palaces are being built on the river front that will shut off access to the river for the
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next 100 years? Will the Minister consider encouraging the Mayor of London to use the compulsory purchase powers to open up the River Thames to the people?
Lord Whitty: My Lords, I have considerable sympathy with the noble Lord's final point. I accept that the Thames is a major asset for London and Londoners. It is not mentioned specifically in the London part of the White Paper. I am riot sure that the Trent is mentioned specifically either, or any other river. The problem in regard to some developments on the Thames is this: under the GLC, new developments had to provide for access to the river if they abutted it. That provision was dropped as a result of the abolition of the GLC and those powers reverted to the riparian boroughs. The developments to which the noble Lord refers, although large, are not large enough to fall within the powers of the Mayor of London. I believe that all are a matter for Westminster City Council and, I am informed on good authority, for Kensington and Chelsea council. That is where the responsibility in planning terms initially lies.
The Earl of Listowel: My Lords, will the Minister recognise as being among the most important beneficiaries of the White Paper the family I visited in bed-and-breakfast accommodation last week? They had been living there for 12 months, depending on take-away food; there were four children aged from one to 11, and the five year-old was waking up in the night with nightmares and showing other signs of high anxiety as a result of those living conditions? Does the Minister recognise that family as typical of the families who will benefit from the outcome of the White Paper?
Lord Whitty: My Lords, I hope so. Clearly, in many of our cities, London in particular, homelessness and lack of appropriate housing for families and especially for young people is one of the blights of our cities. It is to be hoped that the developments foreshadowed and the resources allocated in the White Paper and our other policies will address that problem. The Statement that is to follow the housing policy Green Paper will also be relevant.
Lord Hardy of Wath: My Lords, does my noble friend accept that the report is of real importance and that it should be debated at greater length? Does my noble friend accept that we are justified in hoping that a considerable amount of attention will be given in that debate to the need to avoid eating into the green belt when in many cases there is a perfectly reasonable alternative? My noble friend has mentioned brownfield development. There have been many good developments on brownfield sites, and more are needed. I think, for example, of the site near to my home. A few years ago it was a burning colliery spoilheap; last summer I counted 11 species of butterflies on it. That is the kind of transformation that is needed in many other areas. Does my noble friend accept that greater public attention might encourage that kind of necessary development?

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Perhaps I may ask one other question. Our towns are frequently built along rivers, in many cases for vital historical reasons. But planners do not seem always to have paid much attention to the rising tides and the effect of climate change. Can we ensure that future development, unlike a great deal of development over the past 20 years, will take proper account of that phenomenon?
Lord Whitty: My Lords, on my noble friend's second point, the events of the past few weeks have indicated that sometimes, despite the recommendations of the Environment Agency, planning permission has been granted by local authorities for developments vulnerable to flooding. If climate change has the effect that now seems apparent and floods become more frequent, that will increasingly be a problem. I hope, therefore, that attention will be paid to that. The House will know of the additional resources announced by my right honourable friend the Deputy Prime Minister to deal with the immediate situation.
So far as concerns the green belt and greenfield sites, it is important that we connect the proposals in the White Paper to encourage development on brownfield sites in our cities and towns with the need to reduce pressure on the countryside. I was gratified to see, in relation to the announcement by the Chancellor last week of fiscal incentives, that the spokesman for the Council for Rural England said that he very much welcomed the package of measures harnessing the tax system to breathe new life into our cities, which at the same time was bringing great benefits and helping to save thousands of acres of England's countryside. That juxtaposition needs to be seen as part of this strategy.
Lord Ezra: My Lords, in adding my welcome for the White Paper, perhaps I may express the hope that the improvement of the condition of existing housing will figure very largely in its implementation—a point made by my noble friend Lady Maddock and by the noble Lord, Lord Hardy of Wath. As the noble Lord will be aware, successive house condition surveys have shown that something like 20 per cent of the housing in this country is either substandard or requires major renovation and repair. This issue is very closely related to the problem of fuel poverty that will be considered shortly on the Third Reading of the Warm Homes and Energy Conservation Bill. Can I hope that the targeting to which my noble friend referred will also be applied to that issue and that, in the next house condition survey, we shall see a real dent being made in the number of substandard houses in Britain today?
Lord Whitty: My Lords, I can reassure the noble Lord that the allocations given to local government of £5 billion for improvements in the housing stock, which apply to social housing, their own stock and to owner occupied stock, will help to make a serious attack on the backlog of poor housing and lack of repairs as regards existing housing stock. As to fuel
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efficiency, the noble Lord will know better than most people the range of measures that the Government are undertaking, the incentive and the framework for which are very much reflected in the warm homes Bill that we shall shortly be considering and upon which he has had a considerable influence. Those schemes will improve the quality of housing as well as tackling the fuel poverty of their inhabitants.
Lord Bruce of Donington: My Lords, can my noble friend the Minister give the House an assurance about the problem of the disposal of playing fields by some local authorities to developers? My noble friend will recall that this matter was referred to a few weeks ago when it was revealed that this undesirable practice was continuing, notwithstanding the change of government in May 1997.
Lord Whitty: My Lords, I recognise this problem; indeed, my right honourable friend the Deputy Prime Minister referred to it in his Statement as being one of the contributory factors to reducing the quality of life in many urban areas. We do impose a stricter regime than had been the case prior to this Government coming into office. Nevertheless, some selling off of playing fields seems to be continuing. This matter needs to be seriously considered by local authorities, and the owners of those playing fields, if they are to make a serious contribution towards the quality of life in our inner cities. The Government are determined to play their part in that process.

City of Newcastle upon Tyne Bill [H.L.]
4.33 p.m.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Commons message of yesterday be now considered; and that the promoters of the Bill have leave to suspend any further proceedings thereon in order to proceed with it, if they think fit, in the next Session of Parliament, provided that notice of their intention to do so is lodged in the Office of the Clerk of the Parliaments not later than 12 noon on Monday 27th November;
That the Bill be deposited in the Office of the Clerk of the Parliaments not later than noon on the second sitting day in the next Session with a declaration annexed, signed by the agent, stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the present Session;
That the proceedings on the Bill in the next Session of Parliament be pro firma in regard to every stage through which the Bill has passed in the present Session, and that no new fees be charged to such stages;
That the Private Business Standing Orders apply to the Bill in the next Session only in regard to any stage through which the Bill has passed in the present Session.—(The Chairman of Committees.)

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On Question, Motion agreed to; and it was ordered that a message be sent to the Commons to acqaint them therewith.

Warm Homes and Energy Conservation Bill
Read a third time, and passed.

Countryside and Rights of Way Bill
4.34 p.m.
Lord Whitty: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Whitty.)
On Question, Motion agreed to.
Schedule 5 [Definitive maps and statements and restricted byways]:
Lord Luke Lord Luke moved amendment No. 164:
Page 75, line 40, at end insert—
(" . In section 147(5) of the Highways Act 1980 (power to authorise erection of stiles, etc on footpath or bridleway), after "forestry" there is inserted "or for the breeding or keeping of horses".").
The noble Lord said: My Lords, this amendment is simply about extending Section 147 of the Highways Act 1980 to include land used for the breeding and keeping of horses. We are extremely grateful to the Government, who have clearly listened to our representations on the subject. Indeed, government Amendment No. 196K, which is grouped with our two amendments, absolutely answers our question. We are most grateful.
Amendment No. 165 would extend the existing powers to erect barriers and would allow the erection of bollards and other works to prevent unlawful use of a footpath or bridleway. We are equally grateful to the Government for their Amendment No. 198, which deals with the problem. However, I have a few questions for the Minister. In particular, can the noble Lord say what kind of barrier should be erected? I am most in favour of the "Kent gate"; in other words, upright stakes that are put into the ground at such a distance on either side of a track that could be negotiated safely by a horse and buggy—and, obviously, anything narrower—but which would create a pathway that was too narrow and too high to allow any powered vehicle to pass. I shall be most grateful if the Minister can comment on that point.
We are still concerned that it will be difficult for owners to show that there are sufficient safety grounds to persuade authorities to use the powers granted under Amendment No. 198 to erect barriers. In particular, will any instances of unlawful use be enough to justify the implementation of those powers? Further, what guidance will the Government give to local authorities to encourage them to use these new powers? It should not be forgotten that we are talking about unlawful vehicular use and that these bridleways
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are vulnerable to thieves using 4x4 vehicles. We should do our best to ensure that that does not happen in the future. I beg to move.
Lord Monro of Langholm: My Lords, I thank the Government for the concession they have made. My one worry concerns the word "bollard". Naturally if one is crossing a fence round a field there will be a stile, a kissing gate or something similar. However, a bollard on a route causes me some concern because the unexpected happens in the countryside. If there is an accident or an aircraft crash, one needs to get emergency vehicles along a route as quickly as possible. A bollard is an immovable object, concreted in the ground. We should try to encourage the use of gates that can be easily opened and shut. Gates are more advantageous than bollards in the countryside. It may be easier to ride one's bicycle round a bollard, but in an emergency it could be a damned nuisance.
Baroness Miller of Chilthorne Domer: My Lords, we welcome the fact that the Government have brought forward an amendment to address the nuisance of unlawful vehicular use of paths or ways that we discussed on a previous occasion. Paragraph (b) of Amendment No. 165 in the name of the noble Baroness, Lady Byford, seeks to address that problem. I hope that the Minister will clarify the issue raised by paragraph (a) of the amendment. One can reasonably only have stiles on footpaths and gates on bridleways—footpaths and bridleways are mentioned in the government amendment—because surely a stile on a bridleway is an obstruction for a horse unless the horse and rider were capable of jumping over it. However, it would be unsafe and unreasonable to expect them to do so. I hope that the Government will clarify that their intention is not that further obstacles should be placed on bridleways.
Lord McIntosh of Haringey: My Lords, I am grateful for the comments of the noble Lord, Lord Luke, on Amendment No. 164 and on our Amendment No. 196K. I do not think that I need add anything to that. I believe that I can give all noble Lords the reassurances they seek. The noble Lord, Lord Luke, asked whether the Bill, as it will be amended, will cover what I think are sometimes called separated barriers. I think he was talking about Kent gates. It will cover barriers, rails, fences, posts—we do not use the word "bollard"—or anything which acts as an obstruction.
The noble Lord, Lord Monro, was concerned about access for emergency vehicles. That will be taken into consideration as regards the kind of obstruction that is erected. A concreted-in bollard which obstructed an ambulance would be undesirable. That can be overcome by having obstructions which are capable of being removed by the emergency services, as used frequently in urban areas.
The noble Baroness, Lady Miller of Chilthorne Domer, asked whether it was intended that stiles should be used on footpaths and gates on bridleways. There is no restriction here. Any of those obstructions

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could be used on footpaths or bridleways, as appropriate. If the bridleway were to be used by horses, it would be inappropriate to erect a stile. I do not disagree with the noble Baroness; I simply say that the restriction she appears to think is implied in our amendment does not exist.
I return to the important point made by the noble Lord, Lord Luke, and the noble Earl, Lord Peel, about unlawful use. We are talking here about measures to safeguard, for example, pedestrians or horse riders from the dangers posed by vehicular traffic. Therefore we are talking about the protection of the public. Indirectly, the measure could be used to prevent unlawful use of the routes we are discussing because it would make it unlawful to drive a motor vehicle on a bridleway. I hope that that reassures the noble Earl, Lord Peel, with regard to the crime aspect that he mentioned as it is intended to reassure him.
Earl Peel: My Lords, with the leave of the House, I seek a point of clarification; for example, a path or a track might be used persistently by a vehicle illegally but there is no danger to the public and the track in question may not lead anywhere other than on to a circular route. However, such use may result in wear and tear on the track with the owner or occupier having to meet the cost out of his own pocket. Will the noble Lord assure the House that a barrier could be erected in those circumstances?
Lord McIntosh of Haringey: My Lords, I cannot conceive of a case where a right of way of the kind we are discussing could be used by motor vehicles without a risk of danger to the public. Therefore, the conditions we are discussing would apply. However, we can debate that issue when we discuss other aspects of these amendments.
Baroness Scott of Needham Market: My Lords, before the noble Lord sits down, is he confident that the erection of stiles would not run contrary to the spirit or the letter of recent disability discrimination legislation? Stiles would comprise difficult obstacles to negotiate for some categories of user.
4.45 p.m.
Lord McIntosh of Haringey: My Lords, the authority responsible for the obstruction would have to consider whether it was reasonable. The authority would be bound by the provisions of the Disability Discrimination Act. I cannot imagine that the Disability Discrimination Act is intended to provide access for disabled people to all non-vehicular rights of way, but I am sure that the authority would have to take it into account.
Lord Luke: My Lords, before the noble Lord sits down, did he answer the question about guidance to local authorities to encourage them to use these new powers?
Lord McIntosh of Haringey: My Lords, the powers are available and local authorities have access to them.
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If it is necessary to produce guidance I am sure that we shall be willing to do so, but I do not think that I want to commit us to more public expenditure if, as I think, there will be widespread popular support for these measures.
Lord Luke: My Lords, I am a little dissatisfied with the answer to Amendment No. 165. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 165 not moved.]
Baroness Byford Baroness Byford moved Amendment No. 166:
After Clause 50, insert the following new clause—

Countryside and Rights of Way Bill

  EXTINGUISHMENT OF UNRECORDED RIGHTS OF WAY
  (" .—(1) Any public right to use a way with mechanically propelled vehicles that—

  (a) existed before 1st January 1949;

  (b) is not over a trunk, classified, principal or special road;

  (c) is over a way that does not appear at the cut-off date on the definitive map as a byway open to all traffic; and

  (d) is not shown to have been exercised by the public at any point between the commencement of this Part and the cut-off date,

  shall be extinguished immediately after the cut-off date.
  (2) Any owner or lessee of premises adjoining or adjacent to a way over which public rights have been extinguished under subsection (1) above shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the way.").
  The noble Baroness said: My Lords, I again thank the Minister for agreeing to meet myself and the noble Baroness, Lady Scott, following our discussions in Committee. In Committee I believe that the noble Lord referred to my amendment as a "brave" attempt. We have subsequently met the Minister and have tried to improve it, but this is a difficult problem.
  Amendment No. 166 is my revised version of what was Amendment No. 360A. The proposed new clause has four tests in paragraphs (a) to (d) that need to be satisfied for vehicular rights (only for mechanically propelled vehicles) to be extinguished. The extinguishment applies only to rights pre-1949 over effectively unclassified ways that do not appear on the definitive map and which are not used. A way would only have to fail on one of the criteria in paragraphs (a) to (d) to preserve the right of the public to drive on the route.
  Much of the debate in Committee concerned the misconception that all ways not recorded as byways open to all traffic (BOATs) would be extinguished. That is not the case with this amendment, nor was it with the previous amendment. The only routes over which vehicular rights were extinguished would be minor, unclassified ways that were not used and did not appear on the definitive map as BOATs.
  Noble Lords also seemed concerned that the public's right to use vehicles over each route would have to be dealt with on a case-by-case basis. That is the case now for vehicular routes that are used by the public but do not appear on the definitive map.
  There is not now a mountain of claims against the public's right to use such roads, so why should there be in the future? In theory all such ways could be challenged but the cost sanctions which exist for losers in the civil cases guard against spurious claims. If the amendment were accepted, it is unlikely that routes used by the public would be challenged.
  I corrected a drafting error by changing "or" to "and". The amendment provides that only rights in mechanically propelled vehicles in existence before 1949 would be extinguished. I hope that that clarifies the matter. I beg to move.
  Baroness Scott of Needham Market: My Lords, I am grateful to the noble Baroness for bringing forward the amendment. It gives us another opportunity to debate the vexed issue of vehicular use of rights of way. Perhaps noble Lords will bear with me for a short moment, I should like to take a short stroll down the byways of history.
  In 1705 Lord Justice Coke laid down a three-fold classification of public highways: packways (now bridleways), footways and cartways. We no longer use the expression "cartway". However, we still call part of a road a carriageway. For many years the inhabitants of parishes maintained the highways as best they could. It was at the end of the 19th century that rural district councils began to take responsibility for highways maintenance. They began to survey the routes. At that time the routes began to be lost; they were never put on to surveyors' maps.
  The Countryside Act 1949 described something called a RUPP—a route to be used as a path and bridleway but over which there might be vehicular rights. The 1968 Act allowed local authorities to take into account suitability when deciding whether such vehicular rights would exist. Unfortunately, that power was removed by the Wildlife and Countryside Act 1981. Therefore, the current position is that byway status will be established if documentary evidence can be produced to suggest that it was once a cartway. We now have the situation that the old use of a route by horse and cart today translates into the right of 4x4 vehicles and quadbikes to use those rights of way.
  It is time to grasp the nettle and decide what these routes are for. Walkers and riders prefer not to be confronted by vehicles. For most of us, the joy of walking off the highway is precisely because it forms an escape from vehicles. Along many sunken lanes, the presence of many high banks makes escape impossible if walkers, horses and vehicles coincide. Many of those lanes have become valuable habitats which are threatened by vehicular use.
  Of course, a local authority faced with evidence of vehicular rights can use Section 116 of the Highways Act 1980 to remove those rights. Alternatively, it can use the traffic regulation order procedure to ban vehicles. Local authorities can and do make widespread use of these. But in Suffolk, the county I know best, of the 221 RUPPs which were reclassified, 84 became byways. We still have 265 left to deal with. Those will become restricted byways under this
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  legislation but they could still be subject to claims for vehicular use. In addition, in Suffolk alone another 179 byways have come into being through the claims process. It is not uncommon for people researching claims for footpaths to discover old vehicular rights. Given that this is the scale of the problem in one county, it reaches magnificent proportions when applied over the whole country. Does it really make sense for local authorities to have to deal with hundreds if not thousands of individual cases either by magistrates' courts closure or traffic regulation orders when we could deal with the matter through primary legislation?
  In principle, I have difficulty accepting the removal of rights for a whole category of user. But in this case I am well on the way to being convinced that the amendment of the noble Baroness, Lady Byford, has much to commend it. It preserves the ancient rights of use by horse and cart. The only rights removed are modern rights for vehicles which did not exist when the routes originally came into being. It keeps in place the routes already on the definitive map and takes into account those routes which are currently not on the map but are used by vehicles as an informal part of the rural highway network.
  Lord Renton: My Lords, perhaps I may say with deep respect to my noble friend on the Front Bench, I doubt whether subsection (2) is necessary. Under the common law that right will continue to exist anyway.
  Lord Williamson of Horton: My Lords, I shall catch up with the horse and cart in a moment or two! However, as we are coming to a large number of government amendments, I wish to put on record that I believe those amendments will greatly improve what was already a very good Bill. I mention that as we debate the new clause proposed by the noble Baroness.
  I support the proposal. It is a little complicated but it is a modest proposal. We are extinguishing pre-1949 rights for motorised traffic over the minor unclassified ways which are not used and which do not appear on the definitive map as a byway open to all traffic. The individual cases exist in perhaps reasonable numbers in the country. But an overall decision establishing clarity about the use by mechanically propelled vehicles on these types of ways is desirable when we have primary legislation before us.
  I support the proposal. It could be a little icing on top of the very good cake which the Government have given us in this part of the Bill.
  Lord McIntosh of Haringey: My Lords, my speaking notes say that the noble Baroness, Lady Byford, has made another valiant attempt. However, since she reminded me that I used the word "brave" previously, I shall stick to that. Of course we recognise what is a real problem: how to deal with vehicular rights of way which are completely unrecorded on a definitive map at the cut-off date.
  We acknowledged in Committee that the Government are not anxious to promote inappropriate motorised vehicular use in the

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  countryside—to put it mildly. We want to prevent inappropriate motorised vehicular use as the government amendments we have just debated make entirely clear. But we cannot accept that Amendment No. 166 overcomes the problem of how to distinguish between byways open to all traffic which are required to be recorded on definitive maps and the vast lengths of other unclassified roads in England and Wales which are not. The amendment refers to trunk, classified, principal or special roads but not to unclassified roads.
  Byways open to all traffic are defined by Section 66(1) of the Wildlife and Countryside Act not only in relation to the vehicular rights over them which they have in common with unclassified roads but also by reference to their character as highways which are likely to be used more by horseriders or walkers. In order to put this into context, I should say that of all the rights of way which exist in this country only about 2 per cent are, or will be, byways open to all traffic; and 3 per cent will be roads used as public paths. The remainder will be footways or bridleways. Although I yield to the knowledge of Suffolk of the noble Baroness, Lady Scott, in the country as a whole it is a small minority problem.
  Amendment No. 166 seeks to resolve the problem by disregarding the distinction between byways open to all traffic and other unclassified roads and provides, as a safeguard, that motorised vehicular rights over an unclassified road would be extinguished only at the cut-off date if those rights are not shown to have been exercised by the public at any point between commencement and that date. We note that paragraphs (c) and (d) are negative conditions. However, this would require prudent administration in order to safeguard a major part of the road network—in other words, the unclassified roads which are roads, not rights of way, not intended mainly to be used by horseriders or walkers; they are roads. The noble Baroness, Lady Byford, says that she does not want a case-by-case investigation. But that is what the amendment would require. The amendment is weighted in favour of wholesale extinguishment because extinguishment would occur unless someone showed that there had been public use; for example, the amendment would apply to all unclassified roads in inner London, despite the fact that definitive maps do not cover that area. Clause 51 excepts certain categories of highway from the cut-off date provisions.
  The amendment would not expressly require evidence of use to be provided before the cut-off date. I am grateful for that. However, it stipulates that extinguishment would occur on that date if no use had been shown to have occurred. That could result in all motorised vehicular rights over all the thousands of miles of unclassified roads in England and Wales being extinguished at the cut-off date if they had not by then been shown to have been exercised. In other words, silence could mean extinguishment. A massive amount of work would be necessary before the cut-off date to preserve public vehicular rights of way over roads that are essential for local traffic.
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  The amendment provides no mechanism for deciding how or when it should be shown that vehicular rights had been used. Unclassified roads make up more than 50 per cent of the road network in England and Wales. I am afraid that the approach in the amendment does not make sense, much as we would like to agree with it.**
  The noble Baroness, Lady Byford, said that she did not want a case-by-case examination, but that would be necessary under the amendment. The use of all the 113,000 miles of unclassified roads would have to be investigated, although that would not be required at the cut-off date. It is not clear from the amendment whether vehicular rights over the roads would be extinguished in the mean time. Rights of way are either extinguished or they are not; there is no half-way house.
  I am sorry. I want to agree to the amendment, but it would be an unsatisfactory and bureaucratic way of dealing with its apparent primary aim: to prevent people producing evidence after the cut-off date of long-forgotten vehicular rights. The magistrates' courts have the power, on application by a highways authority, to extinguish vehicular rights of way if they appear to be unnecessary. It would be open to an authority to seek an order without any need for further legislation.
  I repeat that I am sorry that I cannot agree to the amendment, because I know that the noble Baroness means well. However, the Bill provides a mechanism for dealing with the problem that she has rightly identified.
  5 p.m.
  Baroness Byford: My Lords, I have been "brave" and now "valiant", but unfortunately I am still at the wrong end of the wicket. I think that our cricketers are doing better than me. In all seriousness, I thank the noble Baroness, Lady Scott, the noble Lord, Lord Williamson, and others who have spoken in support of the amendment.
  I have one or two questions for the Minister. He said that my amendment was unsuitable and would not cover the problems that I have identified. He also said that the Bill addressed those problems later. Later clauses address different problems relating to 4x4 vehicles, but they do not overcome the problem that the amendment is designed to deal with. Perhaps the Minister will be kind enough to tell me whether the Government will think about the problem further. If I cannot come up with a good suggestion, perhaps the Government can, as they have much more expertise and back-up at their disposal than we do. I should be happy to hear from him again before I decide what to do.
  Lord McIntosh of Haringey: My Lords, that is a perfectly proper question. The issue is dealt with in Amendment No. 193A. If we have not satisfied the noble Baroness by the end of that debate, we shall have to talk about it again before Third Reading.
  Baroness Byford: My Lords, I am being careful because we are on Report. I thank the Minister for that

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  comment, but I did not think that Amendment No. 193A, which I am looking forward to debating, covered what I am trying to cover in this amendment. The slight problem is that if I leave it until we debate Amendment No. 193A, I shall not be able to come back to this one. That is why I want to press the Minister to agree that he will at least think about the problem before I have to make my decision.
  Lord McIntosh of Haringey: My Lords, can I try Amendment No. 194B?
  Baroness Byford: My Lords, I think that I am being outbowled. It is early in the day. I see that a message has just come to the Minister. Perhaps I should wait a minute.
  Lord McIntosh of Haringey: My Lords, I do not have anything to add. We can debate the issue later. I should be very sorry if we were to part company on the amendment, because it would not achieve what the noble Baroness wants.
  Baroness Byford: My Lords, I understand where the Minister is coming from. Pending our later debates on the issue, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 167:
  Page 76, line 11, at end insert—
  (". In section 26 of the 1980 Act (compulsory powers for creation of footpaths and bridleways) after subsection (3) there is inserted —
  "(3A) The considerations to which—

  (a) the Secretary of State is to have regard in determining whether or not to confirm or make a public path creation order, and

  (b) a local authority is to have regard in determining whether or not to confirm such an order as an unopposed order,

  include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the proposed footpath or bridleway would be created."").
  The noble Baroness said: My Lords, I shall also speak to Amendments Nos. 172 and 173. The amendments arise from commitments that we gave in Committee to consider amendments tabled by the noble Baroness, Lady Miller of Chilthorne Domer, which were designed to ensure that decisions on individual orders closing or diverting footpaths and bridleways under Sections 118 and 119 of the Highways Act 1980 would be taken in the context of the area's rights of way improvement plan. We agree with that objective and believe that the same principle should apply to orders made under Section 26 of the 1980 Act creating footpaths and bridleways.
  The amendments relate to orders made by local authorities, the Secretary of State or the National Assembly for Wales. An order made by a local authority cannot take effect until it is confirmed. A local authority may confirm its own order if it is
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  unopposed, but only the Secretary of State or the National Assembly for Wales may confirm opposed orders. The amendments would require that, when deciding whether or not to confirm an order, a confirming authority should have regard to arty material provision of a rights of way improvement plan for the area that includes land over which a footpath or bridleway would be created, extinguished or, in the case of a diversion, created and extinguished. The three amendments deal with each of those three cases.
  Orders made by the Secretary of State or the National Assembly for Wales do not require confirmation. They are published first in draft and made only after any objections have been considered. The amendments would also require the Secretary of State or the Assembly to have regard to the rights of way improvement plan or plans for the area before making an order, just as they would be required to do before confirming one.
  On a technical point, it might help the House if I add that it is not necessary to make express provision for the making of closure or diversion orders, because Section 120(3)(b) of the 1980 Act provides for that, when taken with Amendments Nos. 172 and 173. I beg to move.
  Lord Renton: My Lords, could an improvement plan include not only the granting of a new right of way, but also the abolition of an old one?
  Baroness Miller of Chilthorne Domer: My Lords, I warmly welcome the amendments, which the Government have tabled in response to amendments that we tabled in Committee. We were concerned that the improvement plans should genuinely improve the rights of way network. The Bill should leave no gaps that would allow the network to be diminished. That would go against common sense, but if a loophole were left it could happen. The amendments considerably strengthen Part II.
  Baroness Farrington of Ribbleton: My Lords, I thank the noble Baroness for her support. The answer o the question asked by the noble Lord, Lord Renton, is, yes, plans could cover extinguishment.
  On Question, amendment agreed to.
  Lord Whitty Lord Whitty moved Amendment No. 168:
  Page 76, line 32, at end insert—
  ("1A. In section 31 of the 1980 Act (dedication of way as highway presumed after public use for 20 years), in subsection (6), in each of paragraphs (i) and (ii) for "six" there is substituted "ten".
  1B. After section 31 of the 1980 Act there is inserted—

  EXTINGUISHMENT OF UNRECORDED RIGHTS OF WAY

    Register of maps, statements and declarations.
    31A.—(1) The appropriate council shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect to maps and statements deposited and declarations lodged with that council under section 31(6) above.
    (2) Regulations may make provision for the register to be kept in two or more parts, each part containing such information as may be prescribed with respect to such maps, statements and declarations.
    (3) Regulations may make provision as to circumstances in which an entry relating to a map, statement or declaration, or anything relating to it, is to be removed from the register or from any part of it.
    (4) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.
    (5) In this section—
    "appropriate council" has the same meaning as in section 31(6) above;
    "prescribed" means prescribed by regulations;
    "regulations" means regulations made by the Secretary of State."").
    The noble Lord said: My Lords, Amendment No. 168 arises from a commitment that we gave in Committee to consider an amendment tabled by the noble Baroness, Lady Byford. That amendment was aimed at streamlining the processes under Section 31 of the Highways Act 1980 whereby a landowner may, through the deposit of various documents, rebut the presumption that he intended to dedicate a way as a highway as a result of the public having used the way for 20 years without interruption.
    An owner may deposit a map and a statement showing all the ways on his land which he admits are dedicated as highways. Declarations are required every six years thereafter to the effect that no additional ways have been dedicated over the land. This amendment would increase the period for making declarations from six to 10 years. It would also require local authorities to keep a register of maps, statements and declarations and make them available free of charge for inspection by the public.
    The requirement in relation to registers is broadly in line with the amendment proposed by the noble Baroness. However, it differs in some respects. The noble Baroness's amendment would have required that a combined map and statement be deposited when land changed hands and would have removed the requirement for subsequent declarations to be made at regular intervals.
    We believe that those changes would have undermined the notion of deemed dedication. The procedures set out in Section 31(6) are designed to protect a landowner's interests while, at the same time, taking account of the public interest served by the concept of deemed dedication. That balance would be altered significantly if a single deposit of a map and statement by a landowner were to remain valid until the land changed hands; for example, in our view, it would soon become standard conveyancing practice for maps and statements to be deposited on the transfer of the land. It is also clear that land may be held for many years beyond a person's natural life by a company or trust and therefore not change hands.
    There are also other ways in which a landowner can make his intention clear. He can, for example, put up a notice to that effect, he can lock a gate or he can close off a way for one day a year. A landowner is not obliged to follow the procedures set out in Section 31(6) of the 1980 Act.
    When we discussed this matter in Committee, we made it clear that we would be prepared to agree to a reduction in bureaucracy. I believe that the amendment achieves that, but not to an extent which would undermine the concept of deemed dedication. We believe that, by extending the period for making declarations to 10 years, any burden on landowners would be significantly reduced while ensuring that Section 31 continues to do what it was designed to do. I beg to move.
    Baroness Carnegy of Lour: My Lords, the noble Lord said that the Government are keen to reduce bureaucracy. Why should not the statement and the statutory declaration be on the same document? Is it necessary to have all those documents?
    Lord Whitty: My Lords, at first I also wondered about that. However, it would probably be more rather than less cumbersome to require everything to be in one document. The section requires only an initial deposit of a map showing the ways which the landowner admits are rights of way over his land, and a statement relating to the map. After that, he has only to make periodic declarations that no additional ways have been dedicated. That is simpler than requiring the map and the statement to be deposited every six or, if this amendment is accepted, every 10 years. In other words, rather than resubmit the whole statement, the landowner would show only the changes. We consider that to be less onerous than the requirement for a combination of map and statement.
    Baroness Byford: My Lords, I thank the Minister for accepting the arguments that we put forward in Committee. He referred to additional parts of our original amendment which the Government obviously considered but decided not to include. I am grateful and support the amendment.
    On Question, amendment agreed to.
    [Amendments Nos. 169 to 171 not moved.]
    Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 172 to 174:
    Page 76, line 38, at end insert—
    ("2A. In section 118 of the 1980 Act (stopping up of footpaths and bridleways) after subsection (6) there is inserted—
    "(6A) The considerations to which—

    (a) the Secretary of State is to have regard in determining whether or not to confirm a public path extinguishment order, and

    (b) a council is to have regard in determining whether or not to confirm such an order as an unopposed order,

    include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would extinguish a public right of way."").
    Page 80, line 20, at end insert—
    ("(5) After subsection (6) there is inserted—
    "(6A) The considerations to which—

    (a) the Secretary of State is to have regard in determining whether or not to confirm a public path diversion order, and

    (b) a council is to have regard in determining whether or not to confirm such an order as an unopposed order,

    include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would create or extinguish a public right of way."").
    Page 83, line 20, leave out ("as") and insert ("for the purpose").
    On Question, amendments agreed to.
    5.15 p.m.
    Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 175:
    Page 86, line 26, leave out ("subject to subsection (4) below,").
    The noble Baroness said: My Lords, in moving Amendment No. 175, I wish to speak also to Amendment No. 176. Amendment No. 175 corrects a minor error in the provisions relating to SSSI diversion orders which was drawn to our attention in Committee by an amendment tabled by the noble Lord, Lord Glentoran. The noble Lord rightly pointed out that the condition attached to the exercise of the order power in new Section 119D(3) of the Highways Act contains a typographical error. On further reflection, we also agree with him that it is otiose. Accordingly, Amendment No. 175 removes it and provides for drafting which is consistent with new Section 119B of the Highways Act, also found in Schedule 6 to the Bill.
    Amendment No. 176 arises from our commitment to consider a further amendment tabled by the noble Lord, Lord Glentoran, relating to the requirements in new Section 119E for English Nature and the Countryside Council for Wales to give advance notice of their intention to apply for an SSSI diversion order. It was always our intention to include land managers in the regulations prescribing which persons should be notified. However, we agree that that should be made clear on the face of the Bill.
    Amendment No. 176 would require the conservation bodies to give any owner, lessee or occupier of land over which the right of ways runs, or over which the diverted line would run, 14 days' notice of an application for an order. That would be in addition to the provisions in Schedule 6 to the Highways Act which the Bill applies to SSSI diversions and which require a highway authority making an order to notify owners, occupiers, lessees and others of the opportunity to make representations or objections. I beg to move.
    Lord Glentoran: My Lords, I thank the noble Baroness, Lady Farrington, for these amendments. I am delighted that the Government have moved in that direction.
    On Question, amendment agreed to.
    Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 176:
    Page 88, line 25, leave out ("such") and insert—
    ("any owner, lessee or occupier of land over which the proposed order would create or extinguish a public right of way;
    (aa) to such other").
    On Question, amendment agreed to.
    Lord Whitty Lord Whitty moved Amendment No. 177:
    Page 97, line 24, leave out ("the footpath or bridleway") and insert ("—

    (a) so much of the footpath or bridleway as passes over that land, and

    (b) so far as is requisite for effecting that diversion, so much of the footpath or bridleway as passes over other land occupied by him.").

    The noble Lord said: My Lords, in moving Amendment No. 177, I wish to speak also to Amendments Nos. 178, 179 and 181.
    Amendment No. 177 is designed to bring new Sect ion 135A into line with a provision in Section 135 of the Highways Act which prevents a temporary diversion made under that section affecting the line of a footpath or bridleway on land not occupied by the person who benefits from the diversion. The aim is to prevent an occupier of other land being land-locked by such a diversion. Under Section 135, the temporary diversions which may be authorised in relation to engineering operations are authorised by an order made by a local authority. The new provisions do not require an order to be made and we believe that such a restriction is all the more appropriate.
    Amendment No. 178, which is more substantive, arises from our commitment to consider an amendment tabled in Committee by the noble Lord, Lord Glentoran. That amendment would have extended the maximum period for which a temporary diversion under new Section 135A may be made from five days to 28 days a year. We accept that five days may not provide the degree of flexibility which new Section 135A aims to give to land managers. On the other hand, we believe that 28 days would be too long. After all, an occupier is not required to obtain prior approval before diverting a footpath or bridleway under those provisions. Therefore, Amendment No. 178 seeks to extend the period to 14 days. We believe that to be appropriate for a provision of this nature.
    Amendment No. 179 would ensure that it was not possible to divert a footpath or a bridleway on to another highway which was inappropriate or unsafe for walkers or horseriders to use. Amendment No. 181 to Section 344 of the Highways Act 1980 would prevent new Sections 135A and 135B taking effect in the Isles of Scilly except by order of the Secretary of State after consultation with the Council of the Isles. That would treat the Scilly Isles in the same way as related provisions in the Highways Act including Section 135. I beg to move.
    Lord Glentoran: My Lords, once again I welcome these amendments and thank the noble Lord.
    On Question, amendment agreed to.
    Lord Whitty Lord Whitty moved Amendments Nos. 178 to 181:
    Page 97, line 33, leave out ("five") and insert ("fourteen"). Page 97, line 48, at end insert—

    ("b) to divert a footpath onto a highway other than a footpath or bridleway, or

    (c) to divert a bridleway onto a highway other than a bridleway.").

    Page 99, line 44, leave out ("road hump") and insert ("road-ferry").
    Page 100, line 10, at end insert—
    ("17A. In section 344 of the 1980 Act (application to Isles of Scilly) in subsection (2)(a) after "135," there is inserted "135A, 135B,".").
    On Question, amendments agreed to.
    Clause 57 [Rights of way improvement plans]:
    Lord Whitty Lord Whitty moved Amendment No. 181A:
    Page 35, line 39, after ("for") insert ("exercise and other forms of").
    The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 185 and 186 in my name and to Amendments Nos. 183 and 187.
    The government amendments arise from a lengthy and very useful debate on amendments tabled by the noble Lord, Lord Northbourne, during Committee stage. A major theme of that debate was the important contribution which regular exercise can make to people's health. It was clear that there was widespread support for these measures and for a reference to exercise as one of the matters which local highways authorities would be required to assess when discussing their rights of way improvement plans.
    We have reflected on the views expressed and agree that there is a case for amending the clause so that we give added emphasis to exercise as a form of open-air recreation. Amendment No. 181A requires local authorities to include in their rights of way improvement plans an assessment of the opportunities to provide for exercise. It has been tabled in order to clarify the intention that, among the opportunities for open-air recreation, exercise should be given additional emphasis. As that contributes to the health of the nation, I hope that it meets the main point behind the noble Lord's earlier amendment.
    Amendments Nos. 185 and 186 also arise in part from an amendment tabled by the noble Lord, Lord Northbourne. They bring cycle tracks within the ambit of rights of way improvement plans. These do not currently fall within the definition. Cycle tracks can make an important contribution to the recreational value of local rights of way and we accept that generally they should be covered by rights of way improvement plans. Amendment No. 185 would exclude cycle tracks which form part of, or run alongside, made-up carriageways. That is consistent with the Bill's approach to footpaths which are defined by definitions in the Wildlife and Countryside Act 1981. I beg to move.
    Lord Northbourne: My Lords, I very much welcome the fact that the Government have decided to respond to the fairly strongly expressed feeling on all sides in
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    Committee that there should be reference in the Bill to the importance of adequate opportunities for exercise as one of the matters which local authorities should consider when preparing their rights of way plans. I also welcome the fact that the Government have made clear that cycle tracks constitute one kind of the rights of way which have to be considered in those plans. Both changes reflect the strongly held views of the House that there is a need and a demand from the public to consider the rights of way network in the context of the needs of the 21st century. I support Amendments Nos. 181A and 185 to 187. I do not intend to move Amendment No. 183.
    Baroness Miller of Chilthorne Domer: My Lords, we, too, felt very strongly at Committee stage that cycle tracks should be included because without them there would be no possiblility of looking at a reasonable multi-use approach. We welcome the fact that the Government have brought forward their own amendment.
    I wonder whether the amendment concerning cycle tracks is more narrowly drawn than our Amendment No. 187. Would fewer cycle tracks be included in the government amendment? I suspect that that might be the case. Nevertheless, we are very happy that the Government have brought forward their amendment on the subject.
    Baroness Byford: My Lords, I support these amendments. We had a very full discussion which I shall not go over again. Can the Minister tell me why the Government have resiled from Amendment No. 368AA of the noble Lord, Lord Northbourne, and myself, which gave greater flexibility? Perhaps there is good reason for that. I shall be grateful for an explanation.
    Lord Whitty: My Lords, I am not sure whether the noble Baroness is referring to public health in the noble Lord's original amendment. That is clearly a wider concept than exercise. It is probably too wide to expect a local highways authority to assess all the implications for public health in the context of looking at its rights of way plan. We felt it better to focus on exercise as a form of open-air recreation rather than deal with the wider issue of public health which includes many more issues for consideration.
    As regards Amendment No. 187, I believe that the noble Baroness's amendment would include more cycle tracks. We would wish to exclude those that run alongside a made-up carriageway under certain conditions. We would wish specifically to exclude them as we are excluding footpaths which use the made-up carriageway. That is the explanation as to why we believe that our amendment is better.
    I have found another piece of information regarding the noble Baroness's earlier amendment, which relates to the existence of an extinguishment order. It may be that the existence of such an agreement is something which the confirming authority would be sensible to consider as the Act requires. There would be a range of

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    such factors which it would need to take into account, depending on the circumstances. If we picked out the existence of an extinguishment order specfically, there could arise the suggestion that other considerations should be taken into account. We believe that the authority would have to act reasonably. Were such an order in place, it would need to be taken into account along with other possible legal qualifications of the position. If we spell out one aspect and not others, we could find ourselves with a problem. That is why we did not think it right to include that part of the noble Baroness's amendment.
    On Question, amendment agreed to.
    [Amendment No. 182 had been withdrawn from the Marshalled List.]
    [Amendment No.183 not moved.]
    Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 184:
    Page 35, line 40, at end insert—
    ("() the extent to which the network may be organised to provide walkers, horse riders and cyclists with the maximum opportunity to pursue their recreation off highways used by mechanically propelled vehicles,").
    The noble Baroness said: My Lords, we believe that, as drafted, the Bill tends to leave a gap in the matters that need to be examined as regards the way in which the rights of way improvement plan is published. We have just debated the fact that the Government have seen fit to bring exercise on to the face of the Bill. But taking it along a footpath or cycle track at the edge of a carriageway would not fulfil the aspirations which were mentioned in Committee; namely, the opportunity to pursue walking, riding and cycling away from the noise and fumes of the motor car. That is why, even at this late stage, I have retabled an amendment which places considerable emphasis on the off-road opportunities which should be offered to people. I believe that we may debate that further on Amendment No. 188 in the name of the noble Lord, Lord Northbourne. I regard my amendment as paving the way for the sort of debate which may arise on that amendment. I beg to move.
    5.30 p.m.
    Baroness Mallalieu: My Lords, I support the amendment. It would be very sad if we were to leave Clause 57 without it focusing in any way on vulnerable traffic such as horse riders who are increasingly involved in accidents on the highway. At present, there is a missed opportunity in the Bill. An amendment of this sort would focus local highway authorities' attention on the need to provide for what is a growing number of people who will, in the future, be more and more vulnerable. Even at this stage, I hope that the
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    Minister will feel it right to include something of that sort in the purposes which the local highway authorities must consider.
    Lord Northbourne: My Lords, I support the noble Baroness's amendment. I am not entirely sure that this issue will arise on my next amendment. I believe that the provisions of this amendment are very important.
    Lord Greaves: My Lords, briefly, I add an additional point to those matters raised by my noble friend Lady Miller of Chilthorne Domer, which I fully support.
    This amendment includes the words "maximum opportunity". There is still considerable doubt among people using rights of way and organisations representing walkers and horse riders about the purposes of rights of way improvement plans and what the word "improvement" really means. There is real concern that in some places highways authorities may take the opportunity of "rationalising' and we end up with a network which is thought to provide sufficient opportunities in relation to what people nowadays want but, nevertheless, will result in quite a reduction in the number of paths and bridleways available. The words "maximum opportunity" written into the Bill would be a useful counter to that possible tendency.
    Baroness Byford: My Lords, I add my support for the amendment. I suspect that the Government may say that it is not technically correct, but I hope not. The noble Baroness, Lady Mallalieu, raised a very important point in relation to horse riders who use the roads. It applies too in relation to cyclists but I am thinking of horse riders in particular. Horse riding is an increasingly popular sport these days and much of the riding is done by very young people in comparatively difficult circumstances on some of our roads. I speak as a parent when I say that I am sure we should all wish to ensure that those youngsters are off the road as much as possible.
    Lord McIntosh of Haringey: My Lords, Amendment No. 184 would require local highway authorities, when preparing rights of way improvement plans, to assess the extent to which their local rights of way network could be organised to maximise the recreational opportunities for walkers, horse riders and cyclists away from routes used by mechanically propelled vehicles. Those are admirable objectives.
    Rights of way networks are made up mainly of routes— principally, footpaths and bridleways—not normally used by motor vehicles. The assessments which local highway authorities will be required to undertake in preparing their improvement plans are meant to take account of the extent to which local rights of way meet the present and likely future needs of the public as a whole. They are also meant to assess the extent to which rights of way provide opportunities for open-air recreation.
    I certainly agree with all noble Lords who have spoken that there are good reasons why walkers, horse riders, cyclists and drivers of horse-drawn vehicles would generally prefer not to share rights of way with

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    motorised vehicles. Indeed, that has been the theme throughout virtually all our debates today. Issues of safety, as well as noise and other factors, arise. Having said that, not all walkers like sharing with cyclists or horse riders. There can be conflicts between these as well as between other groups. However, the important point is that we believe that the objectives of the noble Baroness, Lady Miller, can be met without amending the Bill.
    In practice, most users are likely to be walkers, cyclists, horse riders and drivers of horse-drawn vehicles. I said on an earlier amendment that byways open to all traffic are only 2 per cent of all rights of way. Roads used as public paths, which are the foundation for the new category of restricted byways, make up a further 3 per cent. Footways and bridleways make up 95 per cent of the rights of way in England and Wales.
    One of the key questions for local highway authorities to consider in preparing the plans will be the case for creating new rights of way. That is the emphasis, I am sure, that there will be in the plans and that is what the noble Lord, Lord Greaves, wants. He is quite right. Sections 25 and 26 of the Highways Act 1980 provide express powers to create footpaths and bridleways by agreement or order. It would be possible to extend those powers to restricted byways, again excluding motorised vehicles, by the regulation-making power in Clause 49. We shall be looking sympathetically at that when we come to make the regulations. However, there is no similar specific power to create byways open to all traffic which can be used by motorised vehicles and I want to make it clear that we do not intend to introduce one.
    So, in practice, the patterns of use and the powers available to local authorities to create new rights of way already favour non-motorised users. There will be scope to cover the issues raised by the noble Baroness, Lady Miller, in the statutory guidance on improvement plans to be issued by the Secretary of State or the National Assembly for Wales.
    We are keen to avoid adding to the list of matters on the face of the Bill which local highway authorities are required to consider because of the risk of distorting the assessment process in favour of one or more particular interests. I hope that I have shown that all the objectives which the noble Baroness has in proposing the amendment exist already and that it would be undesirable to encourage further additions to Clause 57.
    Baroness Miller of Chilthorne Domer: My Lords, I am afraid that I must disappoint the Minister. I do not feel that he has demonstrated that because there is a difference between my amendment and what is on the face of the Bill. Clause 57(2)(a) refers to,
    "the extent to which local rights of way meet the present and likely future needs of the public",
    but it does not specify that that should be off-road.
    Nor does the clause strengthen the local authority's arm when it wishes to make, perhaps with a local landowner, an unpopular move in trying to link, as in
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    my county, two bridleway networks which are separated by about 100 yards of busy main roads. I believe that my amendment would strengthen local authorities in justifying making maximum off-road opportunity. I hope that the Government may think again on this matter between now and Third Reading because I shall return to it at that stage. In the meantime, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Whitty Lord Whitty moved Amendments Nos. 185 and 186:
    Page 36, line 11, at end insert—
    (""cycle track"—

    (a) means a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988) with or without a right of way on foot; but

    (b) does not include a way in or by the side of a highway consisting of or comprising a made-up carriageway (within the meaning of the 1980 Act);").

    Page 36, line 17, after ("footpaths,") insert ("cycle tracks,").
    On Question, amendments agreed to.
    [Amendment No. 187 not moved.]
    Lord Northbourne Lord Northbourne moved Amendment No. 188:
    After Clause 57, insert the following new clause—

  DESIGNATION OF CERTAIN NEW "INTEGRAL ROUTES" AS ROUTES TO BE DEVELOPED AS A WHOLE
  (".—(1) For the purposes of this section a route is a route of any shape not more than ten miles in length beginning and ending at the same point and open to the public for one or more of the following purposes—

  (a) walking,

  (b) wheelchair access,

  (c) cycling,

  (d) riding on horseback,

  but not for use by mechanically propelled vehicles.
  (2) In any case where a highway authority initiates a scheme to provide a new route in its area which will involve two or more of the actions listed in subsection (4) below, it may declare that the scheme is to be treated under the provisions of this section as a route to be developed as a whole (an "integral route").
  (3) In any case where a highway authority makes a declaration under subsection (2) above that a proposed new route is to be promoted as an integral route the following provisions shall apply—

  (a) in making a determination as to whether or not to approve any applications for any of the actions listed in subsection (4) below in respect of any part of the route, the authority or the magistrates' court, as the case may be, shall base their decisions on the relevant considerations set out in the 1980 Act, taking into account the benefits and disadvantages to the public of the new route as a whole;

  (b) where the authority or the magistrates' court, as the case may be, makes a determination against any one or more of the applications relating to the integral route, the highway authority shall forthwith withdraw all applications which have been submitted for the purpose of creating the route;

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  (c) if as a result of a reference to a determination by the Secretary of State one or more of the applications relating to the route is rejected, the Authority shall forthwith withdraw all applications which have been submitted for the purpose of creating the route.

  (4) The actions referred to in subsection (2) above are—

  (a) the creation of a footpath or bridleway under section 25 or 26 of the 1980 Act;

  (b) the dedication of a highway under section 30 or 31 of the 1980 Act;

  (c) the stopping up or diversion of a highway under section 116. 117, 118 or 120 of the 1980 Act;

  (d) the diversion of a footpath or bridleway under section 119 or 120 of the 1980 Act.").

  The noble Lord said: My Lords, this amendment is an improved version of my Amendment No. 419 moved in Committee. In a sense, it is still mainly a probing amendment.
  If it be true that this country deserves, and the public want, a rights of way network which suits the needs of the people in the 21st century, then it follows, in my view, that we need a legal structure which enables us to get from where we are to where we shall want to be, as indicated by the proposed highway authority improvement plans.
  In debate in Committee the Minister said:
  "We believe that the existing legislation provides adequately for the kind of schemes that the noble Lord … has described".— [Official Report, 9/10/00; col. 141.]
  Those are schemes where changes to two or more rights of way are necessary to create a new route for walkers or cyclists which is more convenient than the existing route. I give the example of where a walk or cycle track can be made of suitable length, beginning and ending near where people live.
  In saying that, I admit that up to a point the Minister is right. The law as it stands makes it possible to achieve such changes, but the costs, delays and uncertainties involved in the present legal structure are such that very few such schemes are promulgated by highway authorities; a few are, but the majority are not.
  Another reason why highway authorities do not promulgate such schemes is that they have no obligation to do so, although they have a permissive power to do so. Some authorities have been criticised by the Commissioner for Local Administration for using resources to implement such schemes at the expense of other schemes that are mandatory. The commissioner did not, as I believe was suggested in Committee, question the value of such schemes per se but the inappropriateness of authorities using scarce funds for permissive schemes to fulfil their statutory obligations.
  If, over time, the Government want to create a right of way network worthy of the 21st century they will have to do one of two things: either they will have to make the improvement of the network a statutory obligation on authorities and provide the money with which to carry that out under the present law, or they will have to change the law so that, while it still
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  protects the interests of user groups and of land managers, it is simpler and less expensive to apply. I know which alternative I would choose. I beg to move.
  Baroness Scott of Needham Market: My Lords, I have great sympathy for the amendment. As noble Lords may be aware, for about six years I chaired a rights of way committee in Suffolk where we made great efforts to develop circular routes. We now have about 70 available in the county. Some of those schemes were quite easy to put together but others have been difficult. The noble Lord is right when he says that cash-strapped local authorities sometimes simply give up when it appears to be difficult. I do not believe that we should berate them for that as they have to decide on the best ways in which to use public money, and it is public money that would be used for developing such routes.
  On a positive note, I mention the Parish Paths Partnership, formerly funded by the Countryside Commission and now funded by the Countryside Agency. That is a scheme under which grants are given to individual parishes to carry out improvements to their rights of way networks. The work includes promoted routes and the production of a leaflet. The routes have to be kept clear and they have to be well signed. In this case, problems with landowners tend to be minimised because schemes are promoted by local people rather than by anonymous council officials. This is an excellent initiative that has given some good results.
  I am concerned that in general terms Countryside Agency funding for rights of way work and countryside work in general is falling because increasingly the focus is turning to what we may call socio-economic work. We should be careful because in many cases the Countryside Agency is the only body with sufficient funds to carry out this kind of work.
  5.45 p.m.
  Lord McIntosh of Haringey: My Lords, in Committee we had a good debate on this subject, initiated by the noble Lord, Lord Northbourne, although a number of other noble Lords spoke, including the noble Lord, Lord Renton of Mount Harry, and the noble Baroness, Lady Warnock. Even I was tempted to remind the Committee that immediately before the war London Transport used to publish a series of threepenny booklets of circular walks within easy reach of London by using London Transport. My parents' family used those booklets, so I am entirely sympathetic to this matter.
  The noble Lord, Lord Northbourne, wants to overcome any obstacles to the routes being created, as we all do. They could possibly be overcome by making this a duty on local authorities; they could be overcome by forcing landlords whose land obstructs the creation of a route to create a right of way, but I do not believe that that would be practicable. Indeed, the amendment does not seek to do that. It ensures that all applications for the orders or agreements forming parts of a route are considered by the order-making authority as a whole so that if one is rejected, it follows

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  that all the other applications are withdrawn. That does not achieve his objective or the objective of us all any more than the existing situation. Of course, we have sympathy for what he wants to achieve, but the issues are more intractable than would be implied by his amendment.
  It would not be appropriate to require local authorities to create new schemes, any more than it would be to require them to divert or close rights of way. It must be for the authorities, whether Suffolk County Council or any other authority, to exercise their discretion on the use of their powers and the allocation of resources. The duty to prepare improvement plans which is in the Bill should focus their minds.
  Existing legislation under the 1980 Highways Act allows the consideration of public path creation or diversion orders to be taken concurrently with extinguishment orders. The extent to which a creation or a diversion order is made in association with an extinguishment order would, if confirmed, provide an alternative path or way to that proposed for closure and may be taken into consideration in the determination of the extinguishment order. I believe that complicated relationship is at the heart of what we are talking about. Account should, of course, be taken of the convenience of the alternative path compared with the one which would be extinguished.
  The key point is that proposals relating to public rights of way will result from the assessment that Clause 57 requires local highway authorities to undertake when preparing improvement plans. They must assess the extent to which local rights of way meet not just the present needs of the public, but also likely future needs of the public and the opportunities that local rights of way provide for open-air recreation, the enjoyment of the authority's area and exercise. They will be expected to consider the availability of and the potential for provision of routes suitable for the purposes provided for in the amendment.
  In Committee I gave an assurance, which I repeat now, that we intend the statutory guidance issued by the Secretary of State to contain clear and adequate advice to authorities that they should, where appropriate, address circular recreational routes in the preparation of their rights of way improvement plans.
  I agree about the importance of encouraging more co-operation between different parties on rights of way issues. There are many landowners who are willing to do so and we hope that the new rights of way improvement plans will act as a catalyst in that respect. Regrettably, a small minority of landowners, by no means representative of the vast majority, are less willing to tolerate people exercising public rights of way over their land and the Bill contains provisions for dealing with them. We shall debate that matter in the next group of amendments.
  I hope that it will be accepted that within the limits of what we can require local authorities to do, and do by agreement with landowners, we have gone as far as
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  we can. I was grateful to the noble Lord, Lord Northbourne, for saying that this is a probing amendment and for moving it in that sense.
  Lord Northbourne: My Lords, I am most grateful to the Minister. Sometimes it is the duty of your Lordships' House to bully the Government and sometimes to nudge them—and this is a nudge. I am pleased to hear what the Minister said in relation to guidelines, which may be important. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 58 [Rights of way improvement plans: supplemental]:
  Lord Whitty Lord Whitty moved Amendment No. 189:
  Page 36, line 36, at end insert—
  ("(da) any local access forum established for their area or any part of it;").
  On Question, amendment agreed to.
  Clause 60 [Enforcement of duty to prevent obstruction]:
  Lord Whitty Lord Whitty moved Amendment No. 190:
  Page 38, line 35, leave out ("56(4)") and insert ("56").
  On Question, amendment agreed to.
  Clause 61 [Power to order offender to remove obstruction]:
  Baroness Scott of Needham Market Baroness Scott of Needham Market moved Amendment No. 190A:
  Page 42, line 18, at end insert—
  ("() Where the offender refuses to comply with the court order, the magistrate may instruct that the obstruction be removed forthwith and the cost recovered from the offender.").
  The noble Baroness said: My Lords, I need not detain the House because we debated the matter in Committee. However, I make no apologies for raising this important issue again. It seems to us on these Benches ridiculous that an individual can be prosecuted in a magistrates' court for obstruction of the highway, can pay a fine and then do nothing to remove the obstruction. If the perpetrator is prepared to keep paying a fine, there is nothing the magistrates' court can do about it. Our amendment allows the magistrates' court the power to remove the obstruction and recover the cost from the offender.
  We are about to debate the unlawful use of public rights of way. That is based on a widespread view in the House that the status of a route as on the definitive map should be upheld. If that principle applies to vehicular use, it must equally apply to obstruction. We cannot continue with the position in which someone can buy his way out of complying with the law. I beg to move.
  Lord Glentoran: My Lords, while I heard what the noble Baroness said, I am a little concerned about the amendment. It assumes that we know who the offender is and implies that he is probably the landowner. I believe that we could run into difficulties if the offender were someone dumping rubbish such as old cars or cans, the driver of cement mixer tipping out on the way home and so forth.

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  It is a serious sanction and we must know who is guilty of placing the obstruction. Assuming that it is not the landlord, someone must work out who will pay.
  Baroness Miller of Chilthorne Domer: My Lords, perhaps I may clarify the position. The court will already have identified the offender because our amendment states:
  "Where the offender refuses to comply with the court order".
  The magistrates' court will know who the person is and have proved that he is guilty. I wonder whether in the light of that explanation the noble Lord feels differently about the amendment.
  Lord Glentoran: My Lords, yes.
  Lord Whitty: My Lords, I have some sympathy with the amendment, particularly in the light of the qualification explained by the noble Baroness, Lady Miller. The perpetrator will have been identified. However, I do not believe that the amendment addresses the situation in the most appropriate way. We are dealing with an offence of failing to comply with an order to remove an obstruction with a view to making it a continuing offence for which there would be fines on each day after a first conviction. That would be a powerful incentive to a convicted person to remove an obstruction.
  However, I take the point that the authority may want to remove the obstruction provided it had the power to recover its costs. Authorities have a general power in law to remove obstructions from the highway but do not in every case have the power to recover costs.
  If it is acceptable to the noble Baroness, I shall look at bringing forward an amendment at the final stage of the Bill which will provide for such a power and meet the objective of her amendment.
  Baroness Scott of Needham Market: My Lords, I am grateful to the Minister for that reply and am pleased that he understands my concern about this serious issue. I look forward to seeing what is proposed when we meet again next week. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 7 [Driving of mechanically propelled vehicles elsewhere than on roads]:
  Lord Hardy of Wath Lord Hardy of Wath moved Amendment No. 191:
  Page 105, line 21, at end insert ("for which the court may order the confiscation of the vehicle in question").
  The noble Lord said: My Lords, in moving Amendment No. 191 I shall try not to detain the House too long. The problem of the illegal and improper use of off-the-road vehicles is serious. It is often a compounded nuisance to a large number of people who can frequently hear vehicles loudly because they are not fitted with proper silencers. They are also damaging. That point which was illustrated only this
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  week in a telling photograph in the Yorkshire Post which showed the damage done to areas which many people want to enjoy.
  I recently spoke to a couple of off-the-road motor cyclists. The first one said, "The police cannot catch me", and the second said, "If they did, I'd only get my wrists slapped". I quote them exactly. I do not want to see young people fined heavily or put in detention. As a former, fairly experienced South Yorkshire schoolmaster, my response would be that the most sensible action would be to take the vehicle from them.
  That is not a novel idea. In the other place, I was involved with a number of Bills which sought to tackle countryside crimes. They gave the courts the power to confiscate anything used in the commission of an offence. That would have included the motor vehicles of long-distance travelling badger-diggers. I understand that although no vehicle has been confiscated in England, the Scottish courts have occasionally ordered the confiscation of vehicles. When dealing in particular with young offenders, it is better to confiscate rather than to place them under an obligation to pay a fine which they cannot afford. I should like the Government to consider the proposal most carefully.
  They may be saving some lives. I recently made the point that many young people have been killed or maimed riding motor cycles. I shall give an illustration which shows the difficult task the police have in responding to the problem. Recently a youth and a little girl, neither wearing a helmet, left the open land on which they were being a nuisance, went on to the public highway, were chased by a police car and turned off on to very rough land. The police car made no attempt to follow them because it may have enhanced the risk. No police officer wants to see young people killed or maimed.
  However, those two young people were at great risk of death or serious injury and that case can be mirrored at least 100 times. There have been four or five deaths in South Yorkshire, the latest only a couple of months ago. Such individual tragedies ought not to happen, but they are caused by those who are either being a great nuisance to their neighbours or are causing considerable damage to the environment. I beg to move.
  Lord Glentoran: My Lords, I rise to speak to Amendment No. 194C. I have great sympathy with what the noble Lord, Lord Hardy, said. Noble Lords will know that I am concerned about the lack of sanctions throughout the Bill on many fronts and I believe that this sanction could prove valuable, as clearly outlined by the noble Lord. We do not believe that vehicles should be allowed off the highway and leaving out the lines of the Bill which we have suggested tidily achieves that.
  Perhaps I may be cheeky enough to make a few comments about the amendment tabled by the noble Lord, Lord Hardy. I would support it as a compromise, but for many reasons I believe that motor vehicles travelling off the road are dangerous—

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  and not least because of the points made by the noble Lord. When vehicles return to the road they do considerable damage. Vehicles which leave the road, even if they go over land beside the highway, will drive over drains and areas that are clearly unsuitable for them. When a vehicle which has been off the road and across country, even on verges or nearby fields, returns to the highway it brings with it a good deal of mud and rubbish, and it may also have sustained damage. However, for a distance of a few yards, or even a mile, it will make the highway dangerous for other users.
  6 p.m.
  Lord Marlesford: My Lords, I support the amendment moved by the noble Lord, Lord Hardy. Many years ago when I was a member of the Countryside Commission, that body constantly wrestled with the problem of vehicles on the Ridgeway. Again and again, the police told us that if we could persuade the Government to make orders they would not be able to enforce them satisfactorily because there would be no appropriate sanctions. I believe that this amendment provides an appropriate sanction. The person in question would be so reluctant to have this measure applied to him that it would be a very real deterrent. This is a sensible approach to a very real problem.
  Lord Renton: My Lords, I, too, should like to support the amendment for a further reason. To provide that any land within 15 yards of a road is a place where people can, in effect, create a right of way for their vehicles is to open up a tremendous amount of land which one normally seeks to protect. I would have thought that the Government should seriously consider accepting the amendment.
  Lord Monro of Langholm: I also support the amendment. To pursue the point about deterrence raised by my noble friend Lord Marlesford, I cannot imagine a greater deterrent to a 17 or 18 year-old lad than the loss of his motorcycle. This has been a very effective measure in dealing with poachers in Scotland; not only rods, reels and all the salmon in the boot but also the motorcar can be confiscated. That has been a very big deterrent in stopping poachers. Perhaps in this context we are considering similar people who use four-wheel-drive vehicles where they should not. I believe that to deal only with four-wheel-drive vehicles narrows it too much. If it referred simply to motor vehicles it would cover both motorcycles and even two-wheel-drive vehicles with four wheels. It is important that we accurately define what we seek to ban. We should support this amendment and, if necessary, adjust the drafting to ensure that we catch all the people we wish to.
  Lord Monson: I also support the amendments. En passant, I am delighted that both the Bill as published and the amendment of the noble Lord, Lord Hardy, refer to imperial measures and not wretched metres.
  Lord Buxton of Alsa: I also support the amendment, which I believe would have solved a real life drama in
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  which I was involved last month, about which I wrote to the Minister. There is a heritage walk, which is a glorified footpath, right through the middle of my local nature reserve. To my amazement, I heard a noise like thunder which was created by three young men on motorcycles on a proper footpath which was half a mile from the road. It was the most appalling noise that I had ever heard. They were dressed in black leather and wore orange helmets and all the rest of it. When I pointed out the circumstances to them they became very belligerent. Fortunately, I had with me a lady guest who nudged me in the ribs and said, "For God sake, back off", because they were undoubtedly about to throw me, at the tender age of 83, into the river. This amendment might well have stopped that behaviour.
  Baroness Miller of Chilthorne Domer: My Lords, given the fact that when we see the rural White Paper shortly the Government will, we believe, support the return of tranquillity and peace to the countryside, I am interested in their response to these amendments. For consistency, I believe that in particular they should support Amendment No. 191. The matter has already been to court and the person concerned has been found guilty of the offence. It is another attempt, which we support, to deal with persistent offenders about whose guilt there can be no question. The amendment may also prevent the introduction of unnecessary bylaws. If there are other mechanisms to deal with these matters we prefer that they should be used.
  Lord McIntosh of Haringey: My Lords, there are two separate issues here: first, the penalties under Amendment No. 191; secondly, the distance off a public road under Amendments Nos. 194C and 195. As far as concerns penalties, there are precedents. Section 43 of the Powers of Criminal Courts Act 1973 empowers the court to make an order of forfeiture of property, including a motor vehicle. That is comparable with the powers which a schoolmaster from South Yorkshire may have over his pupils and, presumably, also his staff. I do not know what a headmaster may do. These powers are available for certain road traffic offences but, broadly, only those which are punishable by imprisonment. I do not know whether for this particular traffic offence it is a good idea to provide for forfeiture of vehicles for something which nobody suggests should be punishable by imprisonment; namely, to drive off a road.
  The Government are about to publish a consultation paper as part of a review of the penalties for road traffic offences, including all those contained in the Road Traffic Act 1988. The review will consider whether the current maximum penalties remain appropriate and ensure that any proposed changes to penalties are consistent within the whole sentencing framework. It will include consideration of when the power of forfeiture should be available to the courts in the case of other road traffic offences. I do not believe that in this one case it is desirable to pre-empt the conclusions of the review, and I hope that my noble friend Lord Hardy will not press his amendment.

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  I turn to the issue of how far off the road a person may drive, which is addressed by Amendments Nos. 194C and 195. Amendment No. 194C extends the offence in Section 34 of the Road Traffic Act 1988 to where a person drives on to any land within 15 yards of a road, being a road on which a motor vehicle may lawfully be driven, only for the purpose of parking the vehicle on that land. Neither the Bill nor Section 34 criminalises such activity. I do not believe it is right to say that this would create a right of way. We are talking here about driving off the road in order to park.
  Lord Renton: My Lords, the Minister said that Amendment No. 194C referred in effect only to parking, but in the way that it is phrased it goes much further. It provides:
  "It is not an offence under this section to drive a mechanically propelled vehicle on any land within fifteen yards of a road — for the purpose only of parking the vehicle on that land".
  In order to park where he wants the driver may drive a very long distance within 15 yards of the road and, surely, that should not be tolerated.
  Lord McIntosh of Haringey: My Lords, I believe that I have accurately described the terms of the provision. If the driver intends to park, presumably he does not leave the road very much earlier than is necessary for that purpose. I rest my case.
  Amendment No. 195 would make it an offence to drive a mechanically propelled vehicle more than five yards from a road. At the moment, one can drive a mechanically propelled vehicle on common land, moorland or land of any other description within 15 yards of a road, being a road on which a motor vehicle may be driven, for the purpose only of parking that vehicle on that land.
  The noble Lord, Lord Monro, talked about poachers. There are much more common cases than poachers. People drive off the road for all sorts of reasons. They may drive off to take a break when they are tired, because the vehicle has broken down or because they have run out of petrol. They may drive off to admire the view or to park before going for a walk in the countryside. These are the actual reasons why people drive off the road.
  Lord Monro of Langholm: My Lords, I am not sure the noble Lord understands what I was saying. I was actually supporting the case. In Scotland it is impossible to impound the car, fishing rod and other equipment from a poacher. That shows just how important the deterrent is.
  Lord McIntosh of Haringey: My Lords, I shall not venture into Scotland since the Bill is concerned with England and Wales. Given the kind of reason why someone might drive off a road, I wonder whether it is desirable to restrict the permission to five yards. It could snake it impossible to drive off the road for any of these quite legitimate purposes; for example, without parking partly on the carriageway. It could make it difficult to do so without damaging sightlines
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  or the passage of other vehicles. Many roads on which motor vehicles may lawfully be driven are quite narrow. I do not think that 15 yards is unreasonable. The distance has been 15 yards for a long time. I would prefer 15 metres pace the noble Lord, Lord Monson. But we have not done that.
  Perhaps I may give the results of some research which has been done in the department. When the Road Traffic Act 1930 was passing through Parliament, the then Minister of Transport, Herbert Morrison, resisted an amendment— needless to say from the Conservative Benches—to extend the distance from 15 to 30 yards; in other words, in the opposite direction. He said:
  "Surely it is reasonable, if a person is driving in the country, that, instead of leaving his motor in the road, he should be entitled, as long as there is no prohibition against it, to put the car on the edge of an open space. It is better for the clearance of traffic, and it discourages him from going farther.
  I think that 15 yards is quite sufficient, and will give adequate space for all the cars that are likely to be parked on these particular spaces".—[Official Report, Commons, Standing Committee C, 27/3/30; col. 383.]
  I rest my case with Herbert Morrison's words.
  Lord Marlesford: My Lords, before the Minister sits down, merely because historically the confiscation of vehicles has been associated with offences for which imprisonment is provided, why should we continue to be caught on that historical precedent? Surely, we should move forward. No one wants to increase the number of offences for which imprisonment is available, but it does not seem to be a logical or valid objection to the amendment of the noble Lord, Lo rd Hardy.
  Lord McIntosh of Haringey: My Lords, that is exactly why I did not say that it was sacrosanct and that it would continue. I said that it was subject to a review. It is better for the review to take into account all the cases and assure a coherent approach to penalties in road traffic law.
  6.15 p.m.
  Lord Hardy of Wath: My Lords, perhaps I may reply to the debate. I refer first to Amendment No. 195. It was tabled as a probing amendment because I was curious about the 15 yards. I recognise that we cannot provide parking places at frequent intervals in rural Britain. It would cost too much and people have to park. But I was puzzled about the 15 yards. I am pii771ed about how long the 15 yards stretch of parking may be and whether another illegal green lane will be established. I accept the point that the law, as it is, recognises 15 yards. However, I would point out to my noble friend that when Herbert Morrison defended 15 yards there were only about 10 per cent of the motor vehicles in the country that there are today. So the problem may suggest that a slightly more cautious approach would be available. I shall certainly be happy to withdraw Amendment No. 195.
  I am more concerned about Amendment No. 191. We are likely to be sending a bad and inadequate message to the off-road vehicle users who risk their

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  lives and limbs and cause a great deal of nuisance and damage to many areas of our country and to many hundreds of thousands of people. I put the proposal that the vehicle should be confiscated, not merely as an alternative to prison or a heavy fine and a long-standing burden on a young person's back but to perhaps stop that young person causing mayhem or injuring himself.
  I hope that the review will be sensible—I believe that my amendment is—and will not take too long. When the review concludes, I hope that it will not take long for any sensible proposals it may make to be dealt with. If we are concerned about the countryside and people enjoying it, we should seek to apply a little common sense to deal with a problem that need not have arisen and could easily be reduced. I may come back to the subject at Third Reading. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 192:
  Page 105, line 21, at end insert—
  ("(1A) For the purposes of this section a person shall only be deemed to have lawful authority if in carrying out the activity described in subsection (1) he has due regard to nature conservation.
  (1B) For the purposes of subsection (1A) the Countryside Agency and the Countryside Council for Wales shall issue guidance about the nature conservation matters to which regard should be had.").
  The noble Lord said: My Lords, in moving Amendment No. 192, I shall speak also to Amendment No. 193. I shall not detain noble Lords long on this matter. I launched a debate in Committee on the question of lawful authority when authority is given to four-by-fours or motor bikes driving across common land. As I explained in Committee, that has been a serious problem. My noble friend said—I accept the argument—that my suggested definition of "lawful authority" is probably rather difficult to accept in law. Nevertheless, it is an important problem. Landowners cannot simply give authority to people with motorbikes or four-by-fours to drive across common land without proper nature conservation. I hope my noble friend will be able to reassure me that there are provisions in the Bill which will allow local authorities to write to landowners and say that they may give authority for people to ride across common land—which actually wrecks a number of wildlife habitats—but they must be sure that the people are not driving over it in order recklessly to destroy the wildlife habitats.
  I hope that my noble friend will be able to give that assurance. I beg to move.
  Earl Peel: My Lords, I have considerable difficulties with the noble Lord's amendment which I partly raised when we discussed this issue in Committee. As currently drafted, it would apply to any land, not just common land. Therefore, we have to be careful when considering what the amendment proposes.
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  I can assure noble Lords that no one is keener than I to ensure that we have a system which prohibits the illegal use of vehicles on any type of land, footpaths or bridleways. Indeed, we shall come on to the amendment of the noble Lord, Lord Williams of Elvel, Amendment No. 193A, which I can assure him I shall wholeheartedly support. But we have to remember that there is another side to this issue. There are those people who enjoy cross-country activities with motor cars or with cross-country bikes.
  As I said in Committee, there are plenty of examples of properly organised events taking place with the landowner's permission, no doubt in conjunction with the local authority or with the police, which cause no difficulties whatever. They may create a certain amount of nuisance in terms of noise, but it is only fair and proper that we should consider other minority groups. There has been an all-out attack on all off-road driving despite the fact that there are people who genuinely enjoy the sport. It would be quite wrong of us completely to ignore their interests. My noble friend Lord Glentoran described off-road driving as dangerous and dirty. That is a rather sanitised approach. We are talking about the countryside where we do have tractors, we do have four-wheel drive vehicles and we do have quadbikes going on land in a perfectly legitimate way. It is a messy activity; and if people do not like it, quite frankly, tough.
  Having said that, I have some sympathy for what the noble Lord is saying. However, we have designated areas where nature conservation is well protected and we are to have legislation to give statutory backing to biodiversity. The real nature conservancy concerns are well covered in the Bill. Therefore, I think that the amendment is intrusive, restrictive and unnecessary.
  Baroness Byford: My Lords, I understand the quarter from which the noble Lord, Lord Williams, is coming. In Committee I spoke on behalf of 4x4 drivers. My noble friend Lord Peel said that my noble friend Lord Glentoran described off-road driving as a dirty sport. In fairness to my noble friend Lord Glentoran, he was referring to the dirt coming back onto the road. That is what my noble friend was saying—not that he regarded it as a dirty sport. In the debate on the previous group of amendments we discussed the problem of vehicles that had been over rough ground coming back onto the road and leaving mud on it and making it slippery, so making it dangerous for other road users. I support what was said by my noble friend Lord Peel and so I shall not repeat it.
  Perhaps I may make another point to the noble Lord, Lord Williams. As the House will know, farming is currently facing great difficulties. Farmers are being asked to diversify. Some farmers get quite an income from having organised events on their land. Therefore, I would have some difficulty in supporting the amendment.
  Lord Northbourne: My Lords, would such organised events require temporary planning permission or

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  would people living alongside a field that had been let out by a farmer have to endure the noise and chaos that would be caused?
  Baroness Byford: My Lords, as far as I am aware— I look to the Minister for help on this point—planning permission is not needed. Normally, it is done in an organised way through agreement with local people. I do not think that planning permission is needed. However, I may be wrong.
  Lord Williams of Elvel: My Lords, with the leave of the House, perhaps I may answer that specific question. Where an event crosses a highway or byway, it requires local authority approval. Other than that, lawful authority from the landowner is enough.
  Lord Northbourne: My Lords, I rise only to say that, as I hate the sound of the internal combustion engine, I am totally opposed to the position taken by the noble Earl, Lord Peel, and the Opposition.
  Lord Whitty: My Lords, I find myself torn on this matter. I have some sympathy with the views expressed by my noble friend Lord Williams in relation to the problem of the potential impact on nature conservation. On the other hand, one has to recognise, as the noble Earl, Lord Peel, indicated, that motor vehicles of various types are used for recreation in the countryside with relatively few problems. No one is saying that we should have a complete ban on the use of vehicles for recreation.
  If read literally, my noble friend's amendments could affect land other than land directly concerned with nature conservancy and would fall into the difficulties identified by the noble Earl, Lord Peel. We have some sympathy regarding the substantive issues to which my noble friend spoke, but I am satisfied that there are already extensive controls to protect both habitats and species and that those controls will be substantially increased as a result of the Bill. Owners and occupiers will be required to obtain the consent of the conservation agencies before carrying out operations identified as potentially damaging. We are strengthening the protection against unauthorised use of SSSIs for driving or other purposes by introducing an offence of deliberate damage or disturbance to an SSSI. That will replace the power to make nature conservation orders.
  In relation to planning—this relates to the temporary use of land for events—there is a further protection for SSSIs. There is a general planning permission for the temporary use of land for motor cars and motorcycle racing for up to 14 days in any calendar year, but that does not apply to land notified as an SSSI. So where event organisers propose to hold an event such as that on an SSSI, they will have to ask for planning permission. Therefore, the conservation concerns are protected. As well as their planning powers, local authorities can use traffic regulation orders to deal with vehicles on rights of way. In many parts of the country, including the national parks, areas of outstanding natural beauty and nature
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  reserves, such orders can be made to conserve and enhance the natural beauty of the area. That could include the restriction of vehicular use. The Bill will extend that power to SSSIs and to Greater London. It will also clarify that natural beauty in that context includes flora, fauna and geological and geographical features and will give local authorities broadly similar powers to those existing in the specialised areas over unclassified roads in other areas. There are also strong measures to protect species, whether or not they are within SSSIs. Therefore, I think that the nature conservation concern lying behind my noble friend's amendment is well addressed.
  Looking more widely at the problems of vehicular use, there are also more general controls. For example, in exceptional circumstances, local authorities can make directions to withdraw general planning permission relating to temporary use of land. There are also by-law making powers.
  There are substantial existing powers in this area. In any case my noble friend's amendment would go wider than his original intention. However, the particular about which my noble friend and the whole House are concerned—the nature conservation point—is adequately covered by the combination of existing powers and the powers which are enhanced, mainly in Part III of the Bill. I hope, therefore, that he will not pursue the amendment.
  Baroness Miller of Chilthorne Domer: My Lords, before the noble Lord sits down, if the species that are to be protected under the forthcoming amendments in Part III, should they be passed, fall outside an SSSI, which government department will be responsible for dealing with the scenario raised by the amendment of the noble Lord, Lord Williams of Elvel? 1f the off-road driving damaged a ground nesting bird, who would be responsible? Would it be a government department or the local authority which had not paid due regard to the conservation of biological diversity?
  Lord Whitty: My Lords, in so far as t he powers to which I referred relate to the extension of the ability of local authorities to use traffic regulation orders in this context in order to protect flora, fauna and geographical features, the local authority would have the powers.
  6.30 p.m.
  Lord Williams of Elvel: My Lords, I am grateful to my noble friend for that response. I think that the noble Baroness, Lady Miller, put her finger on the point here; namely, that this is not a question that concerns SSSIs or national parks, because we all know that they are protected. This is a question that concerns areas of common land. After all, Wales comprises 8 per cent common land which lies outside SSSIs or national parks. What I have been seeking, and what I think I have now received—although I am not quite sure—is an indication from my noble friend that areas lying outside SSSIs or national parks will be protected and will enjoy greater protection as a result of this legislation.

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  I should like to give way for another moment to my noble friend. I hope that he will be able to offer me some advice on this point.
  Lord Whitty: My Lords, yes. I have also indicated that the measures to protect species, along with the measures as regards the powers of local authorities, to which I have just referred, would extend to all areas, not simply SSSIs.
  Lord Williams of Elvel: My Lords, I am most grateful to my noble friend. I shall indicate to Powys County Council that it will be its duty, if the Bill becomes an Act, to write to landowners to say that this is the legislation as it stands. I shall also contact the Chief Constable to say that this is the new legislation and to ask him how police constables are to enforce it. That, of course, is a question of administration.
  In the meantime, I am grateful to my noble friend for the assurances that I have elicited from him and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 193 not moved.]
  Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 193A:
  Page 105, leave out line 26 and insert ("and not subject to any other rights").
  The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 194 and Amendment No. 264. This is an important matter. We had a discussion in Committee of a somewhat general nature about the damage caused by what might be deemed to be illicit driving down what I shall refer to as green lanes. I hope that noble Lords will understand what I mean when I use the expression "green lanes" without going into the legal details. I do not think that I have to elaborate on that issue.
  By the time we reach Report, we should try to decide what the House wishes to do about a matter. There are two issues here. The Government have tabled Amendment No. 194 and I have tabled Amendment No. 193A. The two approaches are, if I may say so, rather different. I shall start by explaining Amendment No. 193A. If it were accepted, it would have the effect of banning motorised vehicles from green lanes unless their rights had been established under the definitive map procedures set out in the Wildlife and Countryside Act 1981. This would put them on the same basis as landowners, walkers and horse riders, who have to do the same. It would therefore create what is known in that unfortunate parlance as a level playing field between landowners, walkers and horse riders on the one hand and motorcyclists and four-by-four cars on the other.
  In my amendment, the highway authority—which, after all, is the authority which determines the procedures under the definitive map process set out in the Wildlife and Countryside Act—would be allowed to control what goes on in green lanes. The status of
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  the green lane would be decided and controlled by the highway authority and the definitive map. All that the magistrates would have to do, on any occasion where a dispute arose, would be to look at what is the status of the road, path or green lane and, only on the criminal charge, decide whether an offence has been committed in terms of fact. Magistrates have no jurisdiction to decide the status of byways, paths or green lanes. That is my starting point.
  The Government approach this slightly differently in Amendment No. 194. If that amendment were to be accepted as it is, then on a case-by-case basis, magistrates would have to take a view, on the balance of probabilities, whether a certain green lane had vehicular rights. It is true that the Government have moved some way towards my position on this matter, in that the prosecution would no longer have to prove that they do have such rights, but the defence could quite obviously argue that they do not. Again, we enter what I shall call the "green lane" situation where the defence would argue and the magistrate would have to go through all the procedures of deciding whether a particular green lane had vehicular rights.
  The problems with this approach are as follows. Magistrates' courts are not courts of record. If one magistrate decides that vehicular rights do exist on one particular green lane and another offence is brought before the court, then if the second magistrate— possibly a different stipendiary magistrate on this occasion—decides the case the other way round, it has no effect. In those instances, magistrates decide only for the purposes of the Road Traffic Act. Whatever decision is taken in a court of law—after all, magistrates' courts are courts of law—it will have no effect on what might be the status of the green lane when the definitive map is produced. I regard that as the first problem.
  The second problem here is that, although I have great respect for magistrates, I do not see how magistrates' courts can be relied on here. These are extremely complicated issues. As I understand the government amendment, magistrates' courts are being asked to decide, on the balance of probabilities— which is a civil rather than a criminal test of proof— that vehicular rights may or may not exist in a particular circumstance, in a particular case, at a particular time. The resources that will be required for this will be absolutely enormous. In the Grimsell Lane affair, the stipendiary magistrate took three days to come to a decision, and even then he commented that it did not affect the status of the green lane in question.
  Lord Phillips of Sudbury: My Lords, I hope that I am not interrupting the flow of the noble Lord. However, would he reconsider his statement that this would be judged according to a balance of probabilities on the civil test? Surely this is a criminal matter? Someone would be guilty of an offence which forms a part of the normal criminal framework of the Road Traffic Act. Is not the noble Lord wrong about this?
  Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, but I am right about this. As I

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  understand the government amendment, the question of whether, for the purposes of a criminal offence, there are rights of way along a particular lane will be decided on the balance of probabilities. So the magistrates will have to decide, first, on the balance of probabilities whether such rights do exist. They will then have to address the criminal case and say, "Given our decision on the balance of probabilities, should we take the view of 'beyond reasonable doubt?"'. That is the answer and it emanates from the Government's lawyers as well as my own lawyers. I have no doubt about this. I am only sorry if I have put down the noble Lord rather too severely.
  I have now explained two problems in this area. We then have to address the problem that what happens on the definitive path, which is covered under the civil procedures of the Wildlife and Countryside Act, may or may not be affected by what successive magistrates decide. We may say that a magistrates' court is not a court of record, but if we had, say, 25 instances where magistrates decided that there were vehicular rights on a particular green lane, it would be very difficult for the highway authority to say there were not. But they may do so under the procedures of the WCA 1981. They are two quite different approaches.
  I feel that the Government recognise that I have a point. I recognise that the Government have a point in that there must be some interim procedures before the definitive map becomes absolutely definitive. But the principle that the highway authority should determine the civil question of the status of a green lane must be sacrosanct. It cannot be left to magistrates' courts to decide that. I hope that my noble friend will consider carefully what I have said before we go any further.
  To a certain extent, Amendment No. 264 is related to what I have to say. If Part II is not commenced in fairly quick time, local authorities will have to go on reclassifying RUPPs and so on until restricted byways can come in under the law. This seems a bit of a nonsense. I hope that my noble friend will be able to give an assurance that Part II will commence pretty quickly, otherwise local authorities will still have a statutory duty to do something which will be irrelevant once Part II comes into effect. I beg to move.
  Baroness Scott of Needham Market: My Lords, I am glad that this issue has come back before us. Many noble Lords felt that the discussion in Committee was less than satisfactory and did not bring out all the issues to which the noble Lord has referred so well. I am also pleased that the two amendments are to be debated together as it gives your Lordships a chance to compare them.
  I should say at the outset that, of the two amendments and the two approaches, I prefer those of the noble Lord to those of the Government. I shall explain briefly why. I accept and commend the fact that the Government moved quickly to reflect the concern that was expressed in your Lordships' House over the issue of the unlawful use of footpaths and bridleways. I have a suspicion that, perhaps in their
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  haste to accommodate your Lordships' views, the Government were not as mindful as they might have been of the consequences of their approach.
  We have to be very mindful of the role of magistrates' courts in this regard. Public rights of way get on to the definitive map in a number of ways, but very often it is after a long, expensive and tedious procedure. It cannot be right, for example, that the day after a footpath appears on the definitive map, someone can drive along it unlawfully and, should they be prosecuted, can go to the magistrates' court and re-run all the arguments that they previously lost as a defence against that unlawful use.
  It leaves the magistrates in a difficult position. They are a fine body of people but, even for those with significant expertise and training in public rights of way law, these are very complicated matters. I am not sure that we should add this to the burden already held by magistrates. Can the Minister say whether he has had time to consult with the Bench and whether magistrates would like this duty imposed on them?
  We also have to consider what happens next. Let us suppose that the magistrates decide that, on the balance of probabilities, there are vehicular rights. That decision will not change the definitive map; it will still show a footpath or a bridleway. So we are left in a position where, in effect, the magistrates' court has condoned the unlawful use of a route. It would not, of course, be unlawful—the court will have acquitted the accused person—but it will leave an anomaly between the definitive status of the route and what the magistrates have decided. That will mean that successive waves of drivers could use that route almost with impunity because, should the police take the trouble to prosecute them again, they will know that they have been let off before. At best that leaves an anomaly; at worst it provides a way of fast-tracking the definitive map procedure by doing something unlawful. That is quite the wrong message to send out. I support the noble Lord. We really must seek to ensure that the definitive map is truly conclusive.
  6.45 p.m.
  Lord Williamson of Horton: My Lords, I consider Amendments Nos. 193A and 194 among my favourite amendments to the Bill. This is for two reasons: first, although they deal with it in different ways, they deal with a real problem; and, secondly, I raised the point at an earlier stage and I have therefore convinced myself that I have had a tiny influence on the final result of the Bill, which is encouraging from a personal point of view.
  Turning to the substance of the matter, Amendment No. 194, which has been brought forward by the noble Lord, Lord Whitty, is a definite improvement in comparison with the present situation. At the moment, as we know, it is possible for people to ride motor bikes or drive vehicles on bridleways; for them to be taken to court; and for them to be acquitted because of the terms of the Road Traffic Act 1988. I think it is common ground that the current text is not satisfactory and does not achieve what we wanted

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  from that Act. The government amendment makes it far more likely that attempts by defendants to muddy the water in such cases will be less successful because the text refers to the fact that the contrary must be proved. That is better than the present text. It is a step forward and I welcome it.
  I turn now to Amendment No. 193A, which has been brought forward by the noble Lord, Lord Williams of Elvel. On an earlier occasion, I was among the few who said—now I have very large support—that the more radical solution would be to make the definitive map conclusive in the context of proceedings. That means that the decision on such matters would be taken out of the hands of magistrates. Anyone who was totally dissatisfied with that would have one redress—to invoke a modification order and to go through the enormous procedure of trying to change the status of a bridleway. That is what I said on a previous occasion; I maintain the view that that is the better approach. It is clearer and it corresponds best to what we are seeking to achieve—namely, that bridleways should not be converted accidentally into ways on which motor vehicles can be driven.
  I support the amendment brought forward by the noble Lord, Lord Williams of Elvel. While recognising that the government amendment is also an improvement, I think the simplest approach is presented in Amendment No. 193A.
  Earl Peel: My Lords, I support the noble Lord, Lord Williams, on this occasion. It gives me great pleasure to do so. I was interested in what was said by the noble Baroness, Lady Scott, because it concurred very much with what the noble Lord, Lord Williams, said. I have taken some independent advice. I am delighted to say that the advice I have been given concurs exactly with what the noble Baroness and the noble Lord have said. I can only assume that it must be spot on.
  Like other noble Lords, I welcome the government amendment. However, I do not think that it goes far enough to deal with the problem. As the noble Lord, Lord Williams, said, the magistrates simply would not be able to cope. They have not got the expertise to do so. Although cases may come before them, there is no guarantee of a satisfactory outcome. Under the noble Lord's amendment, the onus would be on those wishing to take vehicles on such routes to try to get the definitive map changed. That is a much tougher requirement. In view of the enormous difficulties that we are facing up and down the country, I think that the noble Lord's amendment is the one we should accept.
  Baroness Byford: My Lords, I shall not go through the arguments again. I support the noble Lord's amendment.
  The Deputy Speaker (Lord Cocks of Hartcliffe): My Lords, before the Minister replies, I should draw the
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  attention of the House to the fact that if Amendment No. 193A is agreed to, I cannot call Amendment No. 194 because of pre-emption.
  Lord Whitty: My Lords, perhaps I may deal briefly with Amendment No. 264 in this group, standing in the name of my noble friend Lord Williams—I shall deal with it first because it is the easy one! I agree with my noble friend that the provisions in Part II of the Bill that do not take effect automatically two months after enactment should be brought into effect as rapidly as possible. We have in mind the early part of 2002–03. I am not in a position to make a firm commitment at this stage. There are some 40 regulation-making powers in relation to Part II which must all be in place before the full enactment of the legislation can take place. I hope that the fact that I agree with him reassures my noble friend sufficiently that this will be done as rapidly as possible, subject to parliamentary procedures where they are required. I hope that that satisfies my noble friend in relation to Amendment No. 264.
  My noble friend and others have spelt out the meaning of the government amendments, to which I shall return in a moment. It may be sensible to give a little of the background first. Amendments Nos. 193A and 194 relate to the Bill's cross-reference to the Road Traffic Act 1988. The Bill amends Section 34 of the Act to create a presumption that where a way is shown in a definitive map as a footpath, bridleway or restricted byway, it is to be treated as being a way of the type shown. So it would be shown as a footpath, bridleway or whatever, and would be presumed to carry only that right of way.
  But the point here is that a presumption is not conclusive. If we had a conclusive definitive map, clearly the approach taken by the noble Lord in his amendments would apply. Nevertheless, in some cases we are giving 25 years to enable any objections to be settled—in other words, for the conclusive map to be established.
  In the interim, there is clearly a problem in that what appears on a definitive map may not be conclusive. In other words, it may be challengeable. Up to now, the principal concerns expressed in this House have related to the requirement that the defence against being accused of using a vehicle on a right of way which did not allow vehicular traffic was simply to produce prima-facie evidence of vehicular rights. Our amendment recognises that that is not enough and that there has to be a significantly greater burden of proof. Our Amendment No. 194 would require the same level of evidence as, for example, an order modifying a definitive map so that a way would be shown as a footpath, bridleway or restricted by-way as required. In other words, in order to defend a position under the presumptive position, the same level of proof would be required as would be required to change that presumptive position. That is the highest evidential burden placed on the defendant in criminal proceedings. Therefore, the burden of proof set out in Amendment No. 194 is substantial.

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  One has to cater for the fact that a vehicle user might have proof of a pre-existing vehicular right. My noble friend claimed that Amendment No. 193A would simply put motor vehicle users on the same basis as walkers and horse riders. But that is not the case. A walker may walk on a footpath which is not shown on a definitive map; a horse rider may ride on a way that is shown as a footpath if there are bridleway rights over it; and, if sued for trespass, a walker would be able to put evidence that a way was a footpath and sustain that evidence in court.
  In relation to the motorist, Amendment No. 193A would prevent a motorist putting evidence to the court that there was a pre-existing right of way. In other words, the motorist would be treated as being in a less favourable position than a walker or a horse rider accused of inappropriately claiming a right of way when one did not exist. It is difficult for me to accept Amendment No. 193A because it goes much further than we would go in preventing a motorist claiming before a court that using a vehicle on a particular right of way reflected pre-existing vehicular rights.
  My noble friend refers also to the role of the magistrates' courts; and the noble Baroness, Lady Scott, raised queries as to the appropriateness of the magistrates' courts in this respect. As I believe my noble friend himself said, the magistrates' court would not by its decision be establishing the status of a right of way. The court would simply be, on a case by case basis, establishing the balance of probabilities. I agree in one sense that where there is a whole range of these decisions, the Highways Authority might wish to take them into account. Nevertheless, there is no way in which a magistrates' court could definitively define a right of way in those terms.
  The definitive maps to which we refer were not intended to prevent a motorist from being able to claim evidence of vehicular rights. The conclusive evidence of rights of way is not simply being able to point to a map and say that a way is so designated and that all other evidence is therefore irrelevant—which I think would be the effect of my noble friend's amendment.
  There are other considerations in relation to this matter which we should have to take into account if we were tempted to go down the road that my noble friend has taken. Human rights issues could possibly be involved, because people rely on vehicular access to their homes or their businesses. Preventing the use of such rights, or making people liable to prosecution for using such rights simply by referring to the nature of the definitive map could seriously affect their access to and use of their property and the access of others who needed to reach their property. For example, a farmer might depend on public vehicular rights to drive agricultural machinery to part of his land, or he might want members of the public to be able to buy produce direct from the farm and so on. It is possible that he may have private rights of way; but he may not. Amendment No. 193A would make him potentially liable.
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  There is a great deal of obscurity regarding what exact rights exist. The noble Lord's amendment would take the overriding view that if a right of way was shown on a definitive map, that was the end of the story. I can see that there are enormous attractions in that. However, it does not address the real situation on the ground. It could affect the livelihoods and the reality of daily life of a large number of people who have farms or other premises which are accessible from those rights of way.
  Having said all that, I recognise that there is real problem here. The Government have given a great deal of thought as to how Section 34 might be strengthened We are satisfied, as we have indicated in tabling Amendment No. 194, that we need to increase the burden of proof. We are satisfied also that going as far as my noble friend's amendment would go would not be appropriate and that it would raise other issues.
  Nonetheless, it is clear from my noble friend's argument and from the arguments of noble Lords on all sides of the House that there is considerable concern as to whether our Amendment. No. 194 goes far enough. I believe that Amendment No. 194 establishes an important principle of the burden of proof and that we shall therefore wish to pursue Amendment No. 194 if Amendment No. 193A is not carried. However, I recognise that something more may be required. At this stage of the Bill, and given the complexity of the matter, I do not wish to mislead noble Lords. I can given no commitment that I shall be able to find a satisfactory way to resolve this very complex dilemma over the next six days. Nevertheless, I am prepared to indicate to my noble friend that I shall look into the matter to see whether something can be done.
  From what I have said, it is clear that the matter is not all that straightforward. However, we recognise the concern. I believe that our Amendment No. 194 goes some significant way towards meeting that concern. If my noble friend can be persuaded to withdraw his amendment, we shall endeavour to find out between now and the next stage whether there is another way to deal with the situation that will not run into the kind of difficulties to which I believe his amendment would give rise. I shall move our amendment when we reach that stage.
  Lord Williams of Elvel: My Lords, I am most grateful to my noble friend for his response. If I may say so, I think that he has taken the mood of the House. I believe that he is wise to take the matter back and look at it again. I certainly shall not oppose the government amendment. Nevertheless, unless the Government come forward on Third Reading with something that meets the concerns of the House, I may well move my amendment again at that stage and then my noble friend may have a problem. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  7 p.m.
  Lord Whitty Lord Whitty moved Amendment No. 194:
  Page 105, line 26, leave out from ("unless") to end of line and insert ("the contrary is proved").
  On Question, amendment agreed to.
  [Amendment No. 194A had been withdrawn from the Marshalled List.]
  Baroness Byford Baroness Byford moved Amendment No. 194B:
  Page 105, line 26, at end insert—
  ("() If without lawful authority a person drives a four-wheeled drive vehicle upon any road or pathway not designated on a definitive map as a boat he is guilty of an offence.").
  The noble Baroness said: My Lords, we are concerned about the reports of damage to green lanes by owners of four-wheel drive vehicles. We are not satisfied that the use of barriers and notices at the entrances to footpaths and byways will necessarily stop the drivers of these all-terrain vehicles from continuing to plough up the ground and ruin some ancient pathways, which are much appreciated by walkers and wildlife alike.
  The problem with these vehicles is that they can cross land that other vehicles cannot cross. We wish to ensure that it becomes an offence to drive any such vehicle without authority on a pathway that is not officially designated as a BOAT (a byway open to all traffic). This would get around the problem of vehicles entering a green lane other than by a recognised entrance point; for example, from the adjoining land, across a ditch, or up a steep embankment. I beg to move.
  Lord Monson: My Lords, I support the noble Baroness in principle. However, I wonder whether it is wise to restrict the injunction, so to speak, in the amendment to four-wheel drive vehicles. There are some two-wheel drive vehicles that also cross rough land; indeed, some of them have high-ground clearance. I merely put that point forward for consideration.
  Lord Whitty: My Lords, some of the arguments rehearsed in respect of the last group of amendments apply equally to this amendment, but noble Lords will be pleased to learn that I do not intend to repeat them. In essence, we do not believe that it is reasonable for a person to be given a criminal record for exercising public rights of way simply because these have not been recorded on a definitive map. Therefore, all the arguments used in relation to the previous amendments also arise in this respect.
  There are some technical shortcomings in this amendment in that it would prevent anyone from driving a four-wheel drive vehicle on motorways and trunk roads, which cannot be recorded on definitive maps. I am sure that that was not the noble Baroness's intention. Indeed, I believe that she may find herself in considerable difficulty with some of the motoring
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  fraternity if she tries to pursue that aim. More substantively, the amendment contains the express statutory defence of driving with lawful authority. In this context, "lawful authority" could be restricted to mean the exercise of private rights or specific statutory rights. It could also be interpreted to extend to the exercise of public rights of way, which a court may well conclude so as to preserve people's ability to access their homes. If that were the case, it would, in practice, have no different effect from our Amendment No. 194, which has been passed, where the onus will now be on the defendant to prove, on the balance of probabilities, the existence of public vehicular rights over the right of way in question.
  The central point here is that we have grave misgivings about referring to the definitive map as the key determinant of whether or not the driving was lawful. In some circumstances, this might, in practice, prevent people from exercising their lawful rights. I hope, therefore, that the noble Baroness will wait to see whether there is anything further that can be done in relation to the previous amendment. It is to be hoped that I can bring something forward at the next stage, subject to the caveats that I have already given to the House.
  Baroness Byford: My Lords, I am most grateful to the Minister. I had not in fact degrouped the amendment, so I was quite surprised to see it placed separately on the Marshalled List. Obviously I realised that it would be covered by the discussion on the previous group of amendments. I thank the Minister for his response. I look forward with anticipation to what he can bring forward at the next stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 194C and 195 not moved.]
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 196:
  Before Clause 65, insert the following new clause—

  VEHICULAR ACCESS ACROSS COMMON LAND ETC
  (" .—(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way—

  (a) was an offence under an enactment applying to the land crossed by the way, but

  (b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.

  (2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.
  (3) An easement created in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.
  (4) The regulations may in particular—

  (a) require that, where an application is made after the relevant use of the way has ceased, it is to be made within a specified time,

  (b) specify grounds on which objections may be made and the procedure to apply to the making of objections,

  (c) require any matter to be referred to and determined by the Lands Tribunal, and make provision as to procedure and costs,

  (d) make provision as to the payment of any amount by the owner of the premises concerned to any person or into court and as to the time when any payment is to be made,

  (e) provide for the determination of any such amount,

  (f) make provision as to the date on which any easement is created,

  (g) specify any limitation to which the easement is subject,

  (h) provide for the easement to include any specified right incidental to the right of way,

  (i) make different provision for different circumstances.

  (5) In this section—
  "enactment" includes an enactment in a local or private Act and a byelaw, regulation or other provision having effect under an enactment;
  "owner", in relation to any premises, means—

  (a) a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the premises, whether in possession or in reversion, or

  (b) a tenant under a long lease, within the meaning of the Landlord and Tenant Act 1987;

  "prescribed" means prescribed by regulations;
  "regulations" means regulations made, as respects England, by the Secretary of State and, as respects Wales, by the National Assembly for Wales.
  (6) Regulations under this section shall be made by statutory instrument, and a statutory instrument containing regulations made by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
  The noble Lord said: My Lords, we gave a commitment to the House at Committee stage that we would bring forward our own proposals on the difficult and complex subject of vehicular access over common land. This amendment honours that commitment. The purpose of the amendment is to protect property owners who have been driving across common, or similar, land for many years and who are now faced with having to pay an excessive fee to the landowner for acquiring a legal right to do so. I should stress the word "and" because I am aware that many landowners have acted entirely responsibly on this issue. They have been prepared to grant easements to long-standing users for a nominal sum, perhaps to cover expenses. We do not want the existence of our scheme to mean that such landowners will not continue with that approach.
  The amendment gives the Secretary of State the power to make regulations, which will contain the details of the scheme. We decided on this route because we do not consider it appropriate for the scheme that we envisage, which is, of necessity, quite complex, to be included in primary legislation. Before the Report stage, we issued a paper setting out our current view of how the scheme will work. The main elements to be included in the regulations are as follows: first, that the property owner, or his predecessors, must have been
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  using the access in such a way, and for such a time that, had the land not been common land (or other land on which driving is prohibited), a prescriptive right of access through long use would have been acquired.
  Secondly, a limit on the amount of compensation that the property owner has to pay to the landowner will be included. In view of the comments made in Committee, and in the responses to the consultation paper, our current view is that this will be 1 per cent of the value of the property for residential properties built before 1st December 1930 and where use of the property is materially unchanged since that date, or 3 per cent for all other properties—or, alternatively, one-third of the increase in value of the property with a right of access, if that is lower.
  We have listened carefully to the views expressed on the question of compensation, but remain unconvinced that it would be appropriate to grant any easements for nothing. I should perhaps stress at this stage that nothing in these proposals prevents property owners from claiming a prescriptive right through long use, if they can show that such a right had been acquired before it became an offence to drive across common land.
  Thirdly, the regulations will include procedures designed to ensure that the scheme cannot be circumvented and that, where disputes arise, there an appropriate mechanism to ensure that these can be resolved. I hope that the House will feel able to accept the amendment. It will probably be better if I listen to the arguments behind the amendments that have been tabled to our amendment before responding to them. In the mean time, I beg to move.
  Baroness Sharp of Guildford Baroness Sharp of Guildford moved, as an amendment to Amendment No. 196, Amendment No. 196A:
  Line 3, after ("any") insert ("land or").
  The noble Baroness said: My Lords, in moving Amendment No. 196A I speak also to Amendments Nos. 196B, C, D, E, F, G and J which stand in my name. They all deal with the complex and vexed issue of vehicular rights of way over common land. My interest in this subject stems from the situation in Surrey. Surrey County Council felt obliged by the provisions of the Local Government Act 1972 to seek best value for money in those cases where they held the right to grant easements over common land. Although it set a limit of 4 per cent on the value of the property for these easements, in some cases this involved a payment of £10,000 or even £20,000. That is not difficult for some but difficult for others, particularly elderly people who have lived in fairly modest homes which have been caught up in the property boom and who have little in the way of income or savings except what is tied up in their homes.
  Other public landlords—here I cite Guildford and Waverley borough councils in the county of Surrey— felt no such obligation and were in the meantime granting easements at the cost only of the legal fees involved. The result was a chaotic situation with property and commons owners both uncertain of

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  rights and obligations and with properties which did not have explicit easements or rights of way blighted by uncertainty. While such uncertainty persists it is impossible to obtain a mortgage which effectively blocks sales.
  As the Minister indicated, we had some discussion on this matter at Second Reading and in Committee. We are extremely grateful to the Minister for bringing forward the amendment today. I record my thanks to the Minister and to his officials for the constructive way in which they put forward the original proposals and dealt with the consultation on them. They have taken into account many of the points made not only by myself and others in the Chamber but also by people outside who have participated actively in the consultation process and who are extremely grateful for the result.
  Amendment No. 196 is the outcome of the process. The amendment and the regulations it proposes meet many of the issues raised. It lays down the right of an owner of such a property to be granted an easement and the conditions under which that easement may be granted, including specifying the maximum sum that may be charged. The regulations are, of course, crucial, but they are still subject to consultation and for that reason there remains some degree of flexibility.
  The amendments to which my name is attached cover three distinct topics. Amendments Nos. 196A and 196C insert the word "land" before "premises". The reason for this is to ensure that the right to the grant of easements shall extend to agricultural land as well as dwelling houses and other properties. My noble friend Lord Phillips tells me that in legal parlance "premises" does indeed include land without buildings on it as well as land with buildings on it. However, I should be glad to have the reassurance from the Minister that this is the interpretation placed on these words in the amendment.
  Amendments Nos. 196B, D and E all stand in my name and that of the noble Earl, Lord Selborne. I shall leave it to the noble Earl to speak to those amendments. I say merely that we on these Benches support him wholeheartedly on all three of the issues raised: the ceiling set for the value of easements shall be 2 per cent of the value of the property; the ability to defer such payment until the property is sold; and the need to have an explicit assurance that the regulations will be laid within a fairly short space of time so that the uncertainties which have dogged so many caught up in this issue will finally be terminated.
  Amendments Nos. 196E, F and G also stand in my name. I wish to take a little time to explain the amendments. They relate not to property owners seeking to buy or sell easements for a lump sum, but to the situation where the owner of the commons is a charitable trust and where that trust has traditionally granted easement in return for an annual payment which is used to fund the maintenance of roads, paths and other general improvements to the amenities of the common land. There are a number of such trusts in existence; indeed, the National Trust is an example.
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  But whereas the status of the National Trust is explicitly recognised in paragraph 11 of the draft regulations that have been circulated, this is not the case with other charitable trusts.
  One such trust is the Totteridge Manor Association, formed in 1955 as a registered charity with the objectives of managing and maintaining the rural amenities of some 52 acres of common land in Totteridge, a mixed residential and rural area in the north of London. At present the association charges an annual sum to those requiring rights of way for vehicles across its land. It fears that the Government's intention in the amendment—to allow property owners to buy such easements for a fixed capital sum— will have the perverse and unintended effect of preventing the association and other trusts of its kind being able to continue to levy annual payments and thus to fulfil their obligations to maintain rural amenities and manage the areas of common land. The association is worried that under the terms of the amendment it will be obliged to sell off easements for lump sums which will not only deprive it of its annual income but also make it difficult for it to fulfil the responsibilities of stewardship incumbent on it under the terms of the charitable trust.
  Amendment No. 196F seeks to alleviate the situation by, first, allowing common land owners with charitable trust status to continue to exist without the objects of the charity being compromised or the amenity of the common land being jeopardised; secondly, ensuring that rights granted as a result of the changes are the same as if they had been acquired by prescription; and, thirdly, ensuring that such charitable trusts are not prevented from asking for reasonable periodical payments for the maintenance and upkeep of the common lands. Just as the position of the National Trust is recognised, we ask that the position of these other charitable trusts should also be recognised in the regulations. That is the purpose of the amendments. I beg to move.
  7.15 p.m.
  The Earl of Selborne: My Lords, I speak to the amendments in the group which stand in my name. Like the noble Baroness, Lady Sharp, I am also grateful to the Minister for his amendment which addresses the issue which was identified and discussed at some length in Committee. The amendments that we propose to Amendment No. 196 constitute fine tuning. I accept that in the short time since the Committee stage much progress has been made. I echo the words of the noble Baroness, Lady Sharp, in saying how helpful the officials have been in discussing what I think everyone recognises is an astonishingly arcane area of law; that is, access over common land. We are going back to 1906 and trying to resolve complicated issues.
  To demonstrate how complicated the matter is, Amendment No. 196AA, which stands in my name, is a gem of a complication. It seeks to address a problem which would arise under subsection (1)(b) of the Government's proposed new clause in Amendment No. 196 if a right of access arises from a presumption

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  of modern lost grant. I suspect that some noble Lords do not immediately recall what the presumption of modern lost grant is all about. I refer them to the 16th edition of Gale on easements which I have to hand. The provision is a legal title derived from the presumption of a right of way.
  Lord Goodhart: My Lords, I am most grateful to the noble Earl for giving way. I believe that it is known as lost modern grant, not modern lost grant.
  The Earl of Selborne: My Lords, all I can do is refer the noble Lord to Gale on easements which talks of a presumption of modern lost grant. I shall show him the document later, although I defer in all matters legal to the noble Lord, Lord Goodhart. Whatever it is called, let us assume that this situation arises where a right of way through virtue of long use has lapsed or no longer exists for some reason. That could happen if a lease were granted and it brought the property in question into the same management as the access land. Clearly there would then be no need for a right of way. The lease could end and the period where the access was required would not have achieved the prescriptive period of 20 years. I believe that subsection (1)(b) of the Government's amendment does not address the issue. I suggest that Amendment No. 196AA addresses it.
  Amendments Nos. 196B, 196D and 196E deal with the possibility that the regulations, when finally drafted—I accept that much further consultation is needed—allow for the deferral of payments and limit the amount to be paid to 2 per cent of the value of the property. I share with the Minister the belief that a payment is perfectly appropriate. The access owner will face charges. The issue is the balance of the interests of the access owner and those of the property owner. I recognise that some individuals and their predecessors who have owned and lived in those houses since 1926 when the anomaly in the law arose will find it harsh, particularly if they are retired, to face a bill amounting to 3 per cent of the value of the property. That is the figure now suggested in the summary of the draft regulations.
  Payment is a total windfall for the access owner. Were it not for the law which came into force on 1st January 1926 those prescriptive rights would long since have come into play. It is only because the access owner has either never known of his or her interests or has never bothered to enforce them that the situation arises today. After 50 years—it is longer in many cases—he is now entitled to present a bill of 3 per cent at today's prices.
  Bearing that in mind and accepting from the Minister that payment is due to the access owner— however fortunate one may think the access owner to be—in seeking to get the right balance it is not unreasonable to hit on a figure of 2 per cent. That is the figure I commend to the House.
  From these Benches we have from time to time argued that there are human rights which have to be taken into account. I recognise that that is precisely the reason that payments have to be made to the access
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  owner. I still think that 1 or 2 per cent is appropriate. The figure of 1 per cent is proposed in the draft regulations for those properties built prior to December 1930. I have no quarrel with that. I think that that is perfectly appropriate.
  Amendment No. 196J refers to the need to ensure that the regulations are tabled within four months. It would be sensible to have in the Bill a date at which these regulations should come into effect. It would be most unfortunate if the period were protracted unnecessarily. However, I recognise that more discussion is needed. A period of four months might not be appropriate.
  Amendment No. 196FA deals with properties whose construction was completed prior to 1st January 1906. The reason for the date of 1906 is that it is 20 years before the Law of Property Act 1925 came into force in January 1926. I am sure that the Minister will tell me that I need not worry about the properties relating to 1906 or earlier because they have prescriptive rights: after all, they were using their access for 20 years up to 1926; there is no problem; the government amendment does not address the issue because it does not need to address it. I am not sure that that is so. If one goes back to the maps of 1906 or thereabouts one finds evidence that there was a house; there must have been some route to it but it does not follow that it was always the same route. It probably was not when one considers how the tracks on common land have moved. After this long period no one can say from first-hand evidence what happened in and before 1906.
  In seeking to establish the balance of interests between the access owner and the property owner, when talking about a house built in or before 1906 there can be no argument but that the house had access for vehicles—they may have been wagons—and a presumption that there was a prescriptive right. The access owner has to produce some evidence either of restricting access, of having made a licence or at least of having registered an interest. In other words, the presumption is moved to the access owner. If between 1906 and 1993 he never got round to doing that, a landowner cannot complain to the Court of Human Rights that he has had his rights greatly limited. Any other landowner would be only too delighted to know that by this astonishing aberration of the law he has an ability to charge 1 per cent, 2 per cent as I suggest or 3 per cent as the Government may suggest on these properties. But for 1906—surely not.
  I hope that the Minister will look favourably on the amendments to Amendment No. 196 and recognise that they are tabled in the spirit of helpfulness, fine tuning the excellent Amendment No. 196.
  The Lord Bishop of Winchester: My Lords, I associate myself with the amendments of the noble Baroness, Lady Sharp, and the noble Earl, Lord Selborne. I associate myself, too, with their thanks to the Minister for the work that he and his officials have undertaken in tabling the initial amendment. I am enormously impressed by the depth of the noble Earl's researches and his mastery of these matters. The issue

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  is of great seriousness to those immediately affected. My concern is for those in an area of Northamptonshire who have been in urgent touch with me as they have with the noble Earl.
  It is a matter of very real alarm to the people whom the noble Baroness and noble Earl described. I share the noble Earl's sense that the figure owing to the owners of the common land must be set as low as reasonably possible. I note his remarks on that aspect. I support the amendments and all that has been said. I underline how urgent it is for the amendment to be in place and for it to be tuned as finely as possible.
  Baroness Byford: My Lords, I express grateful thanks to the Minister and his team. The problem that has arisen is huge.
  I shall not go over the ground that other noble Lords have covered so carefully. Perhaps I may ask one or two questions. I speak to Amendment No. 196H which is grouped with the other amendments. It is a simple amendment compared with the other amendments. It requires that there should be affirmative resolutions by both Houses on this issue.
  Have the Government defined any amount of land which would be included? Is it the house and the immediate curtilage of the land or the garden? Alternatively, would it include acres of land? The provision refers to land. I was not sure how extensive they would be.
  Secondly, in many cases the problem has arisen because individuals are—rightly—entitled to charge for access over land. A good deal of pressure has been put on parishes and local authorities to apply charges under the best value regime. What is the Minister's guidance to them?
  Thirdly, I should like to ask about the regulations. Much of the outcome of our discussions will be built into regulations, which we shall not see before the Bill receives Royal Assent. The Minister has given us an indication of the Government's intentions, but I do not think that the final regulations will be written into the Bill before it passes. Any clarification that the Minister can give us would be very helpful.
  Other noble Lords have mentioned the National Trust and the Totteridge Trust, which has written to me. Will an individual be able to become a trust to get round the provisions that my noble friends are trying to protect? That is a slightly obscure question, but it is relevant. The issue is not about existing charitable trusts, but what might happen in future. We ought to put our minds to that.
  Again, I thank the Minister and I do not envy him the task of trying to pull this difficult problem together.
  7.30 p.m.
  Lord Phillips of Sudbury: My Lords, I have added my name to Amendment No. 196H, which would ensure that regulations made under this complex new clause were promulgated under the affirmative resolution procedure, not the negative. I asked one
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  member of the Delegated Powers and Deregulation Committee whether it had considered the compensation provisions, which will be reserved to the regulations. He did not think that it had. It is fair to point out that the Committee was subjected to a heavy burden of work on the Bill, with many government amendments being tabled and many aspects relating to delegated legislation that had to be dealt with quickly. If ever any measure warranted the affirmative resolution procedure, those regulations will, in the absence of the compensation arrangements being specified in the Bill.
  I support what the noble Earl, Lord Selborne, said so well when speaking to his amendments, some of which were tabled jointly with my noble friend Lady Sharp of Guildford. Amendment No. 196AA would insert into subsection (1)(b) words that would not penalise those who had not acquired a full prescriptive right before the due date. Do the words "to keep in existence" in subsection (1)(b) mean the same as not to have abandoned the easement? I have given notice of some of my questions, but this one only occurred to me during the debate. If those words simply mean that someone who has not abandoned an easement will get a statutory easement, the noble Earl's concern is dealt with. However, if they mean something more proactive, he has a powerful point. The inestimable Gale says that the normal rule for easements is that once they have been obtained by prescription, they can be lost by abandonment only if something radical happens. He says:
  "The true rule would appear to be that mere non-use without more, however long, cannot amount to abandonment".
  There are any number of reasons why someone might not use the right of way for many years. For example, they might be ill, or even a recluse. The words "keep in existence" seem more proactive. I hope that the Minister will respond to that.
  Finally, I shall speak in favour of Amendment No. 196E. It may be a little exaggerated to suggest that denying proper compensation to those lords of the manor who have suddenly woken up to this wheeze could have implications under the Human Rights Act 1998. I cannot be absolutely sure, but I do not believe that the issues were considered when the Law of Property Act 1925 or the Road Traffic Act 1930 were introduced containing provisions that, many years later, it would be realised had created, by a side wind, a potential for ill-gotten gains by certain unscrupulous lords of the manor.
  Earl Peel: I think that the noble Lord is referring to the owner of the common rather than the lord of the manor. The two are separate.
  Lord Phillips of Sudbury: I accept the noble Earl's point, although lords of the manor usually are the owners of the common, even if not always. In 1925 and 1930, there was no intention to deprive those in the process of acquiring such prescriptive rights of the rights of way that they had already long enjoyed. Most of those who have those rights will do extremely well

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  on the basis of the 2 per cent suggested by the noble Earl, Lord Selborne, and my noble friend Lady Sharp of Guildford.
  Lord McIntosh of Haringey: My Lords, I am grateful to all those who have expressed their gratitude for Amendment No. 196. I do so not on behalf of Ministers, but on behalf of officials, lawyers and parliamentary counsel, because they have done the real work. I shall try to deal with each amendment in turn and answer the additional points that have been made.
  Amendments Nos. 196A and 196C would insert the word "land". The noble Lord, Lord Phillips, is right that the Bill implies land and buildings, so no amendment is called for.
  The noble Baroness, Lady Byford, asked how we defined the land area. It does not really matter very much. What is significant is access to the property. There is no limitation in the clause, but if we had to define it, I imagine that we would define it as the curtilage. That is the normal method.
  Baroness Byford: My Lords, my concern was that the entry and perhaps 10, 15 or 25 acres from it might be included. Paying 3 per cent on that would come to a goodly sum. If the relevant area is only half an acre, it is another matter. Perhaps the Minister misunderstood me.
  Lord McIntosh of Haringey: My Lords, I understand. The noble Baroness is talking about the land area from the point of view of evaluation, not permission. That will certainly have to be dealt with in the regulations. I imagine that it will be a particularly difficult issue.
  Amendments Nos. 196B and 196E would reduce further the compensation payable by the property owner to the land owner. I have suggested that the regulations should provide for 1 per cent per property before 1930 and 3 per cent for later properties. Here, a figure of 2 per cent is suggested. That is lower than the figure which the noble Earl, Lord Selborne, suggested in his amendment in Committee. Our intention is to create a fair balance between the landowner and the property owner. We listened carefully to the points made in Committee and noted the responses to the consultation letter which we issued last month. The result was the tiered system of 3 per cent or 1 per cent, and we believe that that is an appropriate balance.
  There is nothing magical about those figures. They are round figures. We are simply responding to the consultation. I do not feel inclined either to put a figure into the Bill or to go against the consultation which we have undertaken.
  With regard to Amendment No. 196D, I appreciate the wish to ensure that no property owner is faced with having to pay a large lump sum immediately. In response to the concerns which were expressed, we have already reduced the percentage compensation payments and propose that the regulations will provide for payment by instalments. To that extent, we
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  have dealt with the problem that the amendment would address. However, it would appear to be unfair to the owner of the common land to provide for a long delay before any payment was made, which is what the amendment seeks to do. Therefore, I hope that Amendment No. 196D will not be pressed.
  Amendments Nos. 196F and 196G appear to have been drafted with the intention of providing safeguards to the owner of the common land and the beneficiaries of charities. I sympathise with the objectives set out in the amendments with regard to charities. However, we believe that regulations would provide a better means by which to safeguard the position. I can assure the noble Baroness, Lady Sharp, that when drafting the regulations we shall consider ways in which we can do that.
  I was asked whether individuals can turn themselves into a trust in order to receive special treatment. I am not convinced that the provision allows special treatment for charities, and I am not convinced that that would be worth while. However, if I am wrong, I shall certainly write to the noble Baroness, Lady Byford.
  I continue with Amendment No. 196F, which is a substantive amendment. With regard to paragraph (b), I can assure the noble Baroness, Lady Sharp, that it is intended that the statutory rights created under the scheme will be the same as those that would have arisen if the right had been acquired by prescription. I believe that that is the assurance she required.
  With regard to paragraph (c), there is nothing in the Bill, nor will there be anything in the regulations, that. will prevent the landowner using any compensation for the upkeep of the common. However, it is not our intention to provide for a lump sum compensation payment followed by an annual fee, which would or would not be put towards upkeep as the case may be.
  In relation to paragraph (d), I am not convinced that it would be appropriate to give the common landowner the ability to impose conditions on the statutory right over and above those imposed in the regulations. The rights that we intend to give to the access user are those that he would have enjoyed by prescription. I hope that I have covered the points that were raised.
  In relation to Amendment No. 196H, which seeks to insert the affirmative resolution procedure, I do not believe that the Delegated Powers and Deregulation Committee has put forward an explicit view that the negative resolution procedure is incorrect. If the committee were to say that the affirmative resolution procedure should be used, we would do so. However, I do not believe that the amendment is appropriate until the committee comes to such a conclusion.
  With regard to Amendment No. 196J, I can give the noble Earl, Lord Selborne, the assurance that we fully appreciate the need to act quickly. We intend to bring forward the regulations as soon as we can. However, it is obvious from this debate that the issues are not straightforward, and I do not wish to make any commitments.

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  Amendment No. 196AA concerns what the noble Earl calls "modern lost grant" and what the noble Lord, Lord Goodhart, calls "lost modern grant". I prefer to call it "modern grant lost". I consider that to be much more elegiac and poetical. It would go with "paradise lost", and would not make any difference to the sense.
  As the noble Earl, Lord Selborne, will have become aware in the course of his research, the law of prescription is very complex. He is right to point out that our amendment will not cover all the circumstances where prescriptive easements would have been obtained if driving had not been made a criminal offence. That will be the case in many instances, but neither would certain cases be covered by his amendment. Many people have paid for easements which otherwise they could have obtained through prescription.
  In putting forward this amendment, it was never our intention to do anything more than deal with a specific, acute problem. The problem which the Government seek to resolve concerns cases where a property owner has been driving to his home across common land unhindered and continuously for many years but is now faced with a large payment in obtaining the legal right to do so. That was the problem with which we were faced and which we have stuck to. If we widen the scope of the amendment, we run the risk of opening up many more access ways across common land that have not been used for many years. Behind that must be our desire to stop people driving across common land unless they have to. The amendments concern occasions when people must do SO.
  Amendment No. 196FA deals with the desire of the noble Earl, Lord Selborne, to ensure that the government scheme takes special account of properties where vehicular access may have been in existence for many years. We accept that there is a case for a reduced compensation payment, and that is what we propose to put into the regulations. It represents a great deal less than the 9 per cent which some owners can currently expect to be asked to pay.
  It is now suggested that we should go even further and provide free easements for houses constructed before 1st January 1906 because such properties had been in existence 20 years before it became an offence to drive on common land and therefore a prescriptive right must have been acquired. I am not sure about that. I do not believe that many people living in properties next to common land in 1906 would have had cars. I believe that they would have used hand carts.
  The Earl of Selborne: My Lords, they would have had vehicles.
  Lord McIntosh of Haringey: My Lords, very few of them would have had motor vehicles. I believe that if they were removing their chattels, like the Mayor of Casterbridge, they would have done so in a hand cart.
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  I do not believe it is at all certain that every house had a vehicular access which was used in a manner that would have acquired a prescriptive right before it became an offence to drive on common land. In 1926 it became necessary to prohibit driving on common land because motor vehicle ownership had spread sufficiently to make it a problem. Prescriptive rights may be claimed for a wide variety of uses and on various grounds. However, we are not aware of any other circumstances where evidence does not have to be produced to support claims for those rights. We accept that the problem of vehicular access over common land needs to be addressed. Our intention in the amendment is to create a fair balance between the aspirations of property owners and the rights of landowners.
  Perhaps I may turn briefly to the point made by the noble Lord, Lord Phillips.
  The Lord Bishop of Winchester: My Lords, I thank the noble Lord for giving way. I wonder whether, on reflection, he believes that the noble Earl, Lord Selborne, made some sense in his reference to wagons. Indeed, all sorts of people had vehicles with four wheels, not two, before the motor car came into existence. Such vehicles were pulled by horses. That type of argument has been put forward at other points during the passage of the Bill. I believe that the noble Lord was somewhat cavalier in his dismissal of the noble Earl's use of the words "wagon", "cart", "carriage" or whatever.
  Lord McIntosh of Haringey: My Lords, I was not dismissing it at all. I was attempting to reinforce it. I believe that during the period of 20 years between 1906 and 1926 a great deal of wheeled traffic would have been non-motorised. I do not believe that, even now, anyone will worry if a wagon or a hand cart is driven across common land, even if not for access to premises. That is not the problem. The problem is caused by people driving motor vehicles—mechanically-propelled vehicles—across common land. That is the type of access right which I do not believe was always in existence between 1906 and 1926.
  Lord Phillips of Sudbury: My Lords, I do not know whether I misunderstand the noble Lord. The law is very clear that there is a right of way for vehicular access. It does not matter what type of vehicle is in question, whether horse drawn or motor driven. I believe that there may be some misunderstanding about that.
  Lord McIntosh of Haringey: My Lords, I will not challenge the noble Lord on the law. Behind all this is our desire to stop motor vehicles driving on common land except where they have to. The noble Lord, Lord Phillips, asked whether "to keep in existence" is the same as "abandoned". Statutory easements created under our scheme will follow the normal laws on prescription. They will not affect the law on abandonment.

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  As regards whether the 1925 and 1930 Acts did not intend to cause this problem, I do not think I can add to what I said about the tiered figure, which was the result of consultation. Concerning the other points raised with two officials by the noble Lord, I can confirm almost everything that he said. I do not believe that I need weary the House with that unless he wants me to.
  Lord Phillips of Sudbury: My Lords, I have not made the points yet. I thought it appropropriate to raise the points made with the officials at the end of the debate on the amendments and when we consider their resolution.
  Lord McIntosh of Haringey: My Lords, I shall try to cut that out because the noble Lord has already spoken on the amendment. When it is disposed of, I hope that we can return to Amendment No. 196 formally. So that none of us has an extra bite of the cherry, I shall deal with the points which the noble Lord, Lord Phillips, raised with my officials.
  I am happy to confirm his understanding on almost all points. The amendment will not confer a right of easement if the criteria set out in the amendment and regulations are not met. Therefore, it will not prevent owners of commons stopping unauthorised uses that do not meet with the requirements set out in the amendment and regulations. It will not interfere with the present law in relation to acquiesence, and/or estoppel. The intention of the amendment is to grant an easement in respect of the use enjoyed at the time of application.
  Should the use change, whether in the number of properties served or the route or nature of the surface, then the person who has the benefit of the easement could be regarded as acting unlawfully as they have acted beyond the terms and the owner of the common would be able to take appropriate action. As regards parking, the statutory easement will grant only those rights which would have been obtained by prescription so that it will permit parking only if that is already taking place.
  I return to the remark of the noble Earl, Lord Selborne, that these amendments are fine tuning of our original amendment. I am grateful for all of them. They have led to a constructive debate, but I hope that it will be possible to have them withdrawn and proceed to approval of the original amendment.
  Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for his very thoughtful reply to the series of amendments which we put to him. I believe he is right; we have had a very constructive debate. As the noble Lord pointed out, the main problem we have faced is those people who thought they had right of way to drive to their own property only to discover that they were committing a crime in the process. The problem has created a very acute issue for some people. It is important that it should be dealt with as quickly as possible.
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  I am sorry that at this point we cannot be clear that regulations are going to be subject to the affirmative resolution procedure. But I hope that when this matter comes before the Delegated Powers and Deregulation Committee it will enable us to debate the regulations in this House.
  Lord McIntosh of Haringey: My Lords, if the committee says that the measure should be considered by the affirmative resolution procedure, we shall provide for it. I believe that the noble Baroness will agree that it would be right for us to provide for it only on the first occasion and that subsequent amendments could be by the negative resolution procedure.
  Baroness Sharp of Guildford: My Lords, I am grateful to the Minister. There is so much that hangs on these regulations that it would be good if there were the opportunity for debate in the House. With that reservation, I withdraw my amendment.
  Amendment No. 196A, as an amendment to Amendment No. 196, by leave, withdrawn.
  [Amendments Nos. 196AA to 196J, as amendments to Amendment No. 196, not moved.]
  On Question, Amendment No. 196 agreed to.
  Clause 65 [Erection or improvement of stiles etc.]:
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 196K
  Page 43, line 34, at end insert—
  ("() In subsection (5) of that section, at the end there is inserted "or for the breeding or keeping of horses."").
  On Question, amendment agreed to.
  Lord Whitty Lord Whitty moved Amendment No. 197:
  Page 45, line 26, at end insert—
  ("(4) In section 344 of the 1980 Act (application to Isles of Scilly) in subsection (2)(a) after "147," there is inserted "147ZA,".").
  The noble Lord said: My Lords, this is a technical amendment again dealing with the situation in the Isles of Scilly. I beg to move.
  On Question, amendment agreed to.
  Lord Whitty Lord Whitty moved Amendment No. 198:
  After Clause 65, insert the following new clause—

  MINOR AMENDMENTS TO HIGHWAYS ACT 1980
  (" .—(1) In section 66(3) of the 1980 Act (works for safeguarding persons using footpaths)—

  (a) after "footpath" there is inserted "or bridleway", and

  (b) after "barriers," there is inserted "posts,".

  (2) In section 134 of that Act, subsection (5) (which limits the persons who may bring proceedings for failure to restore a public path disturbed by ploughing etc.) is omitted.").
  On Question, amendment agreed to.
  Clause 67 [Interpretation of Part II]:
  Lord Whitty Lord Whitty moved Amendment No. 199:
  Page 46, line 1, at end insert (", unless a contrary intention appears").
  On Question, amendment agreed to.
  Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again not before 8.55 p.m.
  Moved accordingly, and, on Question, Motion agreed to.

Social Security (Incapacity Benefit) Miscellaneous Amendments Regulations 2000
7.57 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham rose to move, That the draft regulations laid before the House on 6th November be approved [31st Report from the Joint Committee].
The noble Baroness said: My Lords, following the Welfare Reform and Pensions Act, these regulations seek to amend the Social Security (Incapacity Benefit) Regulations 1994 and also make some minor amendments to the Social Security (Claims and Payments) Regulations, the Social Security (Credits) Regulations and the Social Security (Payments on Account, Overpayments and Recovery) Regulations. Amendments are being made to three principal areas: first, the amendment of the national insurance contribution conditions for new claims; secondly, the taking into account of occupational and personal pension income in excess of £85 a week for new claims from April 2001; and thirdly, the extension of incapacity benefit to long-term incapacitated young people aged 16 to 19 and in some circumstances those aged under 25. I must stress that all of our proposals apply only to new claims made after 6th April 2001 and that existing beneficiaries at the point of change will not be affected by the new measures.
I turn to contribution conditions. The Act amends the contribution conditions of IB so that only people who have paid contributions in one of the last three tax years prior to the claim will qualify. Nevertheless, we always recognised that there are situations where it is unreasonable to expect people to have worked and contributed in the last three tax years. The regulations therefore provide that carers who currently qualify for incapacity benefit after receiving invalid care allowance will be able to continue to do so on the same basis in the future as now; that is, through contributions paid in any tax year. I should emphasise that it will not be necessary for the person to have been working immediately before they started caring.
Special protection is being provided to people receiving disabled persons tax credit who earn below the lower earnings limit so that they can requalify for IB beyond the normal linking rules. People on DPTC already benefit from a special two year linking rule in IB which allows them to return to benefit at the same point as they left it. However, we recognise that such people could be disadvantaged if they stay in work for
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more than two years, and consequently the regulations provide that a person in this position will be able to qualify for IB, as now, on the basis of contributions paid in any tax year, rather than one of the last three.
We have also said that there will be safeguards for people who leave IB and have to return to it before they have had sufficient time to rebuild their contribution record. That last group already receives protection as a result of the 52-week linking rule that we introduced in October 1998. However, to ensure that people will not lose out under the new contributions test the regulations provide for the relaxation of the new contribution test where someone had been on IB in the previous tax year prior to the claim.
I move now to the occupational and pension payment proposals. These regulations exempt severely disabled people in receipt of the highest rate care component of Disability Living Allowance (DLA) from the abatement of incapacity benefit on account of pension payments.
We are also exempting from the abatement provisions three other forms of payment: individual permanent health insurance arranged by an employee; any permanent health insurance payment for which the employee has contributed more than 50 per cent to the premium; and any health insurance which is intended to cover treatment costs. We will take account of permanent health insurance only where an employer has arranged it and the contract of employment has ended with that employer—in other words, where it is, so to speak, in proxy for an occupational pension.
We also recognise that there will be circumstances in which it will not be appropriate for occupational and personal pensions to be taken into account. The regulations therefore provide for occupational and personal pensions not to be taken into account where the pension payments are in connection with the death of a member of a scheme or where an occupational pension scheme is in deficit or has insufficient resources to pay the full pension.
In earlier debates concerns were expressed that the notional income rules will force people to take their pension early. The notional income rule is intended to prevent a situation where someone deliberately chooses not to take up an income, or deprives himself of it, in order to gain access to or maximise an income-related benefit. I am pleased to announce that we shall not be taking notional income into account under the abatement provisions.
The regulations also provide details of how pension income cases are to be administered.
I turn next to the extension of 1B to persons incapacitated in youth. The Act extends I B to young people aged from 16 to 19 who were incapacitated in youth and are not able to meet the normal national insurance conditions because of illness or disability.
Following representations during the passage of the Act that our intention to extend the age cut off to 25 for people in higher education would not help certain young people with severe learning disability who are in

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mainstream education beyond age 20, we decided to widen the concession to include people in any form of education or work-based training. I know that that further concession was very good news to and welcomed by Mencap. These regulations set out how a person aged above 20 but below 25 can be permitted to receive IB above the normal age cut-off of 20 years.
The prescribed conditions are that a person must have been registered for and attended a course of full-time advanced or secondary education or vocational or work-based training for at least three months before he reached the age of 20. The course must have ended no earlier than in one of the last two complete tax years before the year in which benefit is claimed. To give an example, if a person's course ended in May 2002, he could still claim IB under the youth provisions as late as December 2004 provided he is still aged under 25.
We were also asked to help those who take up employment and earn below the LEL for a lengthy period before becoming incapable again of work. These are people who want to do what work they can but who would not be able to do enough work to benefit from DPTC or the therapeutic work rules.
The regulations therefore enable people who leave incapacity benefit under the youth provisions for paid employment or training to requalify and do so for periods beyond the normal linking rules. People on disabled persons tax credit can return to IB at the same level as they left it if they become incapable of work within two years, provided they get DPTC for the week in which their contract ended.
However, we recognise that people who have worked for more than two years and had earnings below the LEL would not be able to qualify for IB under this rule. The regulations modify the rules to allow people entitled to IB under the youth provisions and who are aged 20 or over (or, where the education rules apply, aged 25 or over) to requalify for IB outside the normal linking rules where they left benefit for work if they left IB to work and have paid or been credited with contributions in both the preceding tax years and who have received DPTC in at least one week in the preceding tax year; or, if they have not received DPTC, they (i) left IB to work (ii) earned less than the LEL in the past three tax years and (iii) make a fresh claim for benefit within 56 days of leaving employment.
The regulations also protect people who return from abroad who were in receipt of benefit in the last tax year prior to the new claim.
Finally, the regulations automatically transfer, a year after the changes are introduced, those aged under 20 who were entitled to SDA at the point of change on to long-term IB. This will give this group of people access to long-term IB at the same time as persons incapacitated in youth who became entitled to short-term IB under the new entitlement conditions.
These regulations make a number of consequential amendments to other social security regulations which are all of a minor nature. Amendments are being made
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to the claims and payments regulations, the credits regulations and the payments on account, overpayments and recovery regulations.
These regulations are entirely beneficial and enable a wide range of deserving groups to continue to receive incapacity benefit on the same grounds as now. I am sorry that they are so technical but to some extent they are amending existing regulations, which is why there is the elaborate insert. They ensure that special provision is made for those groups which the Government promised to help during the passage of the Act. I beg to move.
Moved, That the draft regulations laid before the House on 6th November be approved [31st Report from the Joint Committee].—(Baroness Hollis of Heigham.)
Lord Astor of Hever: My Lords, I thank the Minister for bringing these regulations to the House and for explaining them so fully this evening.
We, on these Benches, will not oppose them but I remind the Minister that these are part of what was a very controversial piece of legislation. We all—all five of us—remember the Welfare Reform and Pensions Act and I am sure that the Minister will not want to be reminded of the Back-Bench rebellion in both Houses.
This evening I give only one example of the controversial aspect of these regulations. They appear to be another attack on pensioners by increasing the means testing of those people who have saved hard for their retirement and they will simply discourage them from saving. The latest figures from the House of Commons Library show that under this Government's pensions policies, by 2003 between 55 per cent and 59 per cent of pensioners will be on means-tested benefits.
The Government claim that this is all part of their modernisation of welfare. Will the Minister confirm that before the regulations were finalised full consultation took place, particularly with the relevant interest charities? During the passage of the Welfare Reform and Pensions Bill, a number of my noble friends and I were contacted by a large number of charities with serious concerns about different aspects of the Bill. I have no doubt that the noble Earl was also contacted.
One organisation that we consulted widely during the passage of the Bill was the National Association of Citizens Advice Bureaux. I contacted that organisation this afternoon. Rather to its surprise, and to my surprise, it had received no contact from the Minister's department and has been given no opportunity to comment on the regulations. Does the Minister agree that that is just the sort of organisation which should have been consulted?
Earl Russell: My Lords, clearly, these regulations arise out of old battles. The Minister may be relieved to hear that I do not intend to revisit those old battles. She knows perfectly well what I think; I know perfectly well what she thinks. We need not go through that again. That is water under the bridge and there is quite

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enough water coming downstream, both politically and literally, for us not to need to go chasing what has gone under the bridge.
However, it strikes me that we are dealing here with concessions which were made during the process of negotiation to get that Bill through. I do not believe that we often realise quite how much value there is in the process of political negotiation, compromise and concession. What has come out of it here is, as the Minister said, entirely beneficial. It is small but so are raindrops. Put them together and they get to be quite a lot. It is really quite an important process and when we are engaging in it, I do not believe that we always remember how important it is.
I am as happy about the drafting of the regulations. They are the most difficult regulations to understand since the first regulations that I dealt with on this Front Bench. I absolutely tore my hair out in relation to those. This time I relied on the Minister to give a clear, comprehensible explanation, which she did. I thank her for that. I wish the draftsman would follow her example.
I take the Minister's point about the acrostic quality of much regulation on social security matters, but I ask the Minister, or someone in her department, to look at the speech made on the last amendment to the Sexual Offences (Amendment) Bill by the noble and learned Lord, Lord Brightman, in relation to the virtues of the Keeling schedule. That would make matters a great deal more intelligible for those who have to deal with them. Of course, the law is made for the public, who need to understand it as much as we do, and if we cannot understand it I wonder how on earth they can. If anything can be done to make the drafting of the regulations more intelligible it would help.
I also draw attention to one of my favourite drafting forms, the Humpty-Dumpty clause. Regulation 17(5) reads:
"A person who is 19 years of age or over shall not be treated for the purposes of Section 30A(2A)(e) of the Contributions and Benefits Act as receiving full-time education notwithstanding he is undergoing a full-time education".
That is a good example of the genre. I believe the regulation refers to the problems of finding the correct status of people who remain at school at the age of 19. I must declare an interest in having had a son in that position through the combination of a change of country and dyslexia. Now is not the time to develop that point. Nor is it time to develop the issue of intercalation with students. I hope that the department will consider both those matters in future.
I shall not repeat everything that the Minister has said, but on the general summary of the regulations we have concessions on contribution conditions and we have concessions linking the regulations with the 1998 concession on linking rules, for which I believe the Minister herself deserves a good deal of credit. I thank her for that. There is also the concession, for which I believe the noble Lord, Lord Rix, deserves credit, for people disabled in youth and the extension to people—for example, students—who are in no position to make contributions, those who are disabled between the ages
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of 20 and 25. I believe that my honourable friend Mr Rendel deserves some credit for that. I thank both the Minister and him. When those regulations went through I seem to remember saying that I was being "Oliver Twist" in asking for more. Nevertheless, I am grateful for what we have. That is good.
On the disabled persons' tax credit, I am glad that the Minister grasped the mettle of the problem of contribution conditions for those who are below the lower earnings limit. Again, that is something for which I believe the House owes her some thanks. I have left the whole business of the Bill, but we should thank the Minister for small mercies, and there are quite a lot of them. I am glad to have them.
Baroness Hollis of Heigham: My Lords, I thank noble Lords for welcoming the regulations and for notifying me of two points that they wanted to raise so that I was able to check with officials that I understood them fully.
The noble Lord, Lord Astor, made a general point on means testing. That was part of the debate that we had in the summer and the summer before that. As a result of the Government's policy, both in terms of the minimum income guarantee and pensioners' credit but, above all, the state second pension, the number of pensioners who otherwise would need to rely on means testing will be reduced. However, as the noble Lord must surely accept, a problem arises in that overall pensioner incomes have increased by 64 per cent—the top 20 per cent by 80 per cent and the bottom 20 per cent only by about 27 per cent—and therefore there is an increase in inequality. So if the same amount of money is given to all pensioners the differentials of inequality will be preserved, but if one seeks to target, as the Government are doing, by definition people's financial needs and resources have to be taken into account. The answer is targeting but we all have to seek to overcome the old stigma associated with the words "means testing" to ensure that people take up their entitlement as is there right and as of right. I am sure that we do not disagree on that.
The noble Lord, Lord Astor, told me that he would raise the issue of consultation. Formally we do not have to consult because regulations issued within six months of the passing of the Bill do not need to go out to consultation, but as I believe I promised the House at the time, we consulted with the two leading organisations on disability involved in the regulations, Mencap and the Disability Alliance, the umbrella organisation for the full range of other disability organisations. Their concerns were of a technical and detailed nature and at no stage did they seek to challenge the principle of any of the regulations.
We also consulted ABI on pensions issues. I am not sure that NACAB would have been the appropriate body for these regulations. However, I believe that we would have taken heed if either Mencap or the Disability Alliance raised issues on which NACAB would have had an appropriate voice. As noble Lords have recognised, these are technical, detailed disability regulations and we consulted the leading disability organisations.

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The noble Earl, Lord Russell, kindly gave me notice that he is concerned about what he pleasingly calls the "Humpty-Dumpty" quality of regulation 17(5). Normally if someone were in full time education they would not qualify for incapacity benefit. Therefore this regulation is needed to ensure that they can so qualify while in full-time education. As I say, full-time education is defined for the purpose of the regulation. It does not treat someone as being in full-time education if they are not, but it allows someone who is in full-time education to claim IB at the age of 19. Normally full-time education would exclude someone from incapacity benefit. That may cover a range of contingencies, so the noble Earl was correct. It is entirely a benefit provision. The fact that someone is in full-time education is not a bar to claiming IB, which otherwise would be the case.
Although many noble Lords were at odds as regards the main thrust of the Bill, I share with the noble Earl my appreciation for the constructive way in which we have been able to amend the original proposals in the Bill to ensure that small groups of people who, through no fault of their own, would otherwise fall through the cracks, have been given the protection to which they are entitled. I hope noble Lords will agree to accept the draft regulations so that they become substantive regulations.
On Question, Motion agreed to.
Baroness Amos: My Lords, I beg to move that the House do adjourn during pleasure until 8.55 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.18 p.m. to 8.55 p.m.]

Countryside and Rights of Way Bill
Further consideration of amendments on Report resumed.
Lord Whitty Lord Whitty moved Amendment No. 199A:
Before Clause 69, insert the following new clause—
("Biological diversity

CONSERVATION OF BIOLOGICAL DIVERSITY
.—(1) It is the duty of—

(a) any Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975),

(b) any Government department, and

(c) the National Assembly for Wales,

in carrying out his or its functions, to have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biological diversity in accordance with the Convention.
(2) The Secretary of State, as respects England, and the National Assembly for Wales, as respects Wales, shall each publish a list of, or lists which together comprise, the living organisms and types of habitat which in the opinion of the Secretary of State or the Assembly (as the case may be) are of principal importance for the purpose mentioned in subsection (1).
(3) Without prejudice to subsection (1), it is the duty of a listing authority to take, or to promote the taking by others of, such steps as appear to the authority to be reasonably practicable to further the conservation of the living organisms and types of habitat included in any list published by the authority under this section.
(4) Before publishing the list or lists required by subsection (2) the listing authority shall consult the appropriate conservation body as to the living organisms or types of habitat to be included in the list or lists.
(5) Each listing authority shall, in consultation with the appropriate conservation body—

(a) keep under review any list published by the authority under this section,

(b) make such revisions of any such list as appear to the authority to be appropriate, and

(c) publish any list so revised.

(6) A duty under this section to publish a list is a duty to publish it in such manner as the listing authority thinks fit.
(7) In this section—
"appropriate conservation body" means—

(a) as respects England, English Nature.

(b) as respects Wales, the Countryside Council for Wales;

"biological diversity" has the same meaning as in the Convention;
"conservation" in relation to a living organism or type of habitat, includes the restoration or enhancement of a population or habitat;
"the Convention" means the United Nations Environmental Programme Convention on Biological Diversity of 1992;
"habitat" has the same meaning as in the Convention;
"listing authority"—

(a) in relation to a list which the Secretary of State is required to publish under this section, means the Secretary of State;

(b) in relation to a list which the National Assembly for Wales is required to publish under this section, means the National Assembly for Wales.").

The noble Lord said: My Lords, in Committee I promised to bring forward a government amendment which would respond to the overwhelming support in the Chamber and in the other place for some statutory entrenchment of our biodiversity policy. We have given considerable thought as to how best to achieve that objective and Amendment No. 199A is our conclusion. I believe it to be a more comprehensive reflection of the implementation of biodiversity policy in England and Wales and also, for reasons which I shall explain, more technically satisfactory than Amendment No. 217 tabled by the noble Baroness, Lady Byford. I therefore hope that I can persuade her to withdraw her amendment in favour of the Government's. I shall deal with the amendments to my amendment once they have been moved.
The debates on this issue made it abundantly clear that there is a widespread concern that the conservation of biodiversity be addressed on a wider scale than solely in protected areas such as SSSIs. The Government totally agree with that. At present, it is undertaken as a matter of policy through the UK Biodiversity Action Plan.
That plan is a major expression of our obligations under the UN Convention on Biological Diversity. But the convention sets a wide and comprehensive

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framework, of which the Biodiversity Action Plan is only one part. The Government are firmly committed to the conservation of biological diversity and all the obligations which fall to it under the convention. That is why in subsection (1) of the amendment the Government have set their general duties—to have regard to the purpose of conserving biological diversity—in the context of the convention itself. I believe that that provides a firmer basis for the future development of biodiversity policy than the narrower emphasis contained in the alternative Amendment No. 217.
Nevertheless, we also fully recognise the central role that our implementation of the convention must attach to the conservation of those species and types of habitat for which we in this country have special responsibilities. Subsections (2) to (7) of Amendment No. 199A therefore focus on providing a flexible but clear statutory basis to the current process for dealing with species and habitats. While aiming to retain room for manoeuvre in setting future priorities, we are concerned to maintain the course and effectiveness of that current process. We have a very successful partnership approach, drawing in organisations across the statutory and non-statutory sectors. We do not wish this provision to result in the wholesale review of the current Biodiversity Action Plan priorities and processes.
In the light of that, we have framed the duty in subsection (3) to promote the taking by others of steps to further the conservation of the listed species and habitat types. We believe that this duty best reflects and sustains that partnership approach. The partnership of course includes other government departments and a very wide range of public bodies as well as conservation and land management NGOs and in some cases the private sector. Our amendment deliberately goes wider than Amendment No. 217.
Amendment No. 199A also reflects other valuable elements of the current process, such as the advice of the nature conservation agencies. We have also referred to "living organisms" rather than "species" which we understand to be more taxonomically correct because it can include lower plants and fungi and "habitat types" rather than "habitats" to avoid possible confusion with specific sites.
I therefore believe that our amendment is comprehensive and is to be preferred to the amendment tabled by the noble Baroness. I shall listen to the debate on the amendments to my amendment. In the mean time, I beg to move.
9 p.m.
Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen moved, as an amendment to Amendment No. 199A, Amendment No. 199B:
Line 8, leave out ("have regard") and insert ("further and enhance").
The noble Baroness said: My Lords, my noble friend Lord Judd is attending the Council of Europe and is unable to be in his place this evening. My noble friend
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has asked me on his behalf to move Amendment No. 199B and speak to Amendment No. 199C. We greatly welcome Amendment No. 199A and sincerely thank the Minister for tabling it. The amendment encompasses many of the matters for which we asked when we last debated this issue. We particularly welcome its emphasis on the obligation of the listing authority to ensure the conservation of living organisms and different types of habitat. We also welcome the proposal to consult appropriate bodies accordingly.
However, we believe that in one particular respect the amendment does not go far enough and is rather weak, and for that reason we have tabled Amendment No. 199B. We believe that this amendment strengthens the position and improves the new clause. It emphasises the need for Ministers of the Crown, government departments and the National Assembly for Wales to enhance and further, rather than merely to have regard to, their purpose in relation to conserving biological diversity in accordance with the convention. The amendment demands action and so strengthens the whole clause. I hope that my noble friend will look favourably on these small amendments which are intended to be supportive.
Baroness Mallalieu: My Lords, in Committee I spoke briefly to this aspect of the Bill. I also thank the Minister for the very good amendment which has been tabled by the Government. I know that other noble Lords will also be grateful for it. I urge the Minister, however, to consider carefully the amendment moved by the noble Baroness which is intended to beef up the position. One can envisage a situation, perhaps not under this Government, in which a Minister of the Crown may not carry out his functions and is challenged in the courts. If he is asked to say whether he has had regard to these matters nothing can be simpler than for him to escape what we hope will be his obligations. If the clause read "to further and enhance", it might be rather more difficult for the Minister to escape, if he had failed to carry out his obligation. If the Minister cannot accept the amendment moved by the noble Baroness, I hope that he will at least be able to give some guidance to assist someone who may at some stage wish to test the matter in the courts.
Earl Peel: I also very much welcome the amendment tabled by the Minister. I appreciate the difficulties which the Government faced in producing a balanced response to our debate in Committee on this important subject. The effects of the amendment will be particularly useful to conservation outside the designated areas; indeed, they may go some way to resolve the problems referred to by the noble Lord, Lord Williams of Elvel, concerning nature conservation in designated areas. As I said in Committee, I believe that the amendment will have a profound effect on the way that government ultimately think about management of the countryside. I am also convinced that as Ministers and government departments, who will be responsible for

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implementing this legislation, come face to face with the realities, the inadequacies of the common agricultural policy will be brought into sharp focus, which can only be good. When we debated this matter in Committee the noble Lord, Lord Hardy of Wath, said that the financial implications of the amendment would not be very great. I suspect that they will be greater than the Government realise. The Government have made a brave move in tabling this amendment, which I and other noble Lords appreciate.
I have great sympathy for the amendment moved by the noble Baroness, Lady Gibson of Market Rasen. However, I am not sure that any government department would be in a position to further and enhance the objectives set out in the Government's amendment. It is perhaps asking too much of every government department statutorily to embrace that commitment. I welcome the Government's amendment and believe that it is a very accomplished response to our debate in Committee.
Baroness Young of Old Scone: My Lords, although I should love to join the noble Earl, Lord Peel, in a spirited attack on the common agricultural policy, at this time of night I shall avoid doing so. I am delighted that the Government have tabled Amendment No. 199A and provided statutory support not only for the biodiversity action plan but the whole convention on biodiversity. The biodiversity action plan is a unique phenomenon in British public life in that it is an agreed set of priorities to which everyone signs up. I am glad that it will now be given some statutory underpinning.
The expression "to further and enhance" is interesting. I hesitate to agree with the noble Earl, Lord Peel, that no government department can further and enhance conservation. I can think of several departments, not least the Ministry of Defence, which own considerable land and can play a big role. I hope that I can encourage the noble Earl and the Minister to be ambitious. However, I am delighted to see in the Government's amendment not only statutory underpinning but also the statement that this is all about furthering conservation, not just having regard to it, and that the definition of "conservation" includes "restoration or enhancement". I hope that the whole House will support the amendment.
Lord Monro of Langholm: My Lords, I go back to the observations of my noble friend Lord Peel. When the Government are expected to have knowledge of these matters they turn, naturally, to their official advice which comes from English Nature. They will not have problems in that regard. One would wish, however, to make a précis of the two amendments. In a way, Amendment No. 217 is much simpler for the man in the street to understand than Amendment No. 199A, particularly in relation to some of the technical stuff. Biodiversity means different things to many different people. If one looks for an indication of its meaning, one sees that in the new clause "biological diversity" is to have the same meaning as in the convention. If one looks up "the Convention", it means the United Nations Environmental Programme
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Convention on Biological Diversity of 1992. But none of that is particularly helpful to the man in the street. It would have been to the advantage of the clause if the Government had simplified it and spelt out what they actually meant by "biodiversity", rather than leaving one to look up various Acts and conventions which are not on the face of the Bill.
I dare say that when the Bill has completed its passage through Parliament the Government will produce a document to elucidate and explain many of the issues in the Bill. This is one issue that needs further explanation.
Lord Williamson of Horton: My Lords, from the Cross Benches I welcome the Government's amendment No. 199A. It responds very well to what was discussed in Committee. I believe that the Government's formulation is quite satisfactory. It is important to have the statutory underpinning. It will not undermine the voluntary partnerships which exist already under the habitat and living organism, until tonight described as species action plans. The amendment responds extremely well to what is needed in the Bill.
Baroness Miller of Chithorne Domer: My Lords, we on these Benches welcome the amendment for the reasons noble Lords have stated. We welcome the widening of responsibility to include ordinary species and places, taking Part III beyond the concentration on SSSIs.
We recognise that this is a wider amendment than the one we tabled. When I first saw it, I had the reaction that the noble Lord, Lord Monro, has just expressed; it was so complicated that I did not fully understand and appreciate the degree to which it would be beneficial. Having unwrapped the meaning of it—I hope to an adequate degree—I am content that it meets the requirements we wanted to see met.
Although I understand the reasons behind the amendments of the noble Lord, Lord Judd, I feel quite happy that the spirit—to further and enhance—is already encapsulated in the Government's amendments.
Lord Hardy of Wath: My Lords, I congratulate the Government on bringing forward the amendment. I am delighted that support exists across the House. I have one question: can the Government give an estimate for the period of consultation referred to in this part of the Bill?
Baroness Byford: My Lords, I thank the Government for their amendment. No one has spoken about my Amendment No. 217. I feel very sad, but we shall no doubt discuss that matter in a moment.
Noble Lords should be aware that our amendment was tabled before the government amendment. That is always a problem at the end of one stage and before the next stage starts. I thought that the joy of our amendment was that it was very simple and contained what was needed. However, I bow to the great support

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that the Government have. I am more than happy to accept the Government's amendment. I do not have difficulty with that.
I thank the noble Baroness, Lady Miller, the noble Lord, Lord Moran, who is not in his seat, and the noble Lord, Lord Judd, who, we knew, would not be able to attend tonight, for adding their names to Amendment No. 217.
In Committee, my original amendment No. 518 had much support from all sides of the House, and indeed from the Government. I am grateful. My amendment at that time was considered not perfect. I am even more grateful that the Minister has returned with something of which we are in favour.
Amendment No. 217 requires that, first, the Secretary of State and the National Assembly for Wales shall establish and keep under review lists of priority species and priority habitats; and, secondly, that the Secretary of State and the National Assembly for Wales shall take such measures where reasonable and practical to further the conservation and enhancement of the priority species and habitats. Thirdly, there is a duty to report on these matters from time to time. Fourthly—and perhaps most importantly at that stage—there is the requirement that every Minister of the Crown shall further the conservation and enhancement of the priority species and priority habitats listed under subsection (1).
I have one or two questions for the Minister. In subsection (1) of the Government's amendment, the words "to have regard" could be considered a little loose. I do not know if that was a deliberate choice of wording by the Government. But "to have regard" is not desperately direct. I should be grateful for the Minster's comments on that matter. My amendment refers to "further conserve and enhance".
In subsection (2), the phrase "of principle importance" is used, rather than the word "priority" which I have in my amendment. Perhaps the Minister will comment on that matter.
In subsection (3), the listing authority is either the Secretary of State for England or the National Assembly for Wales. As regards Wales, that is not a problem because the National Assembly has an overall responsibility for the countryside as well. But in England which Secretary of State will take the lead role? This point has already been referred to by other noble Lords. Will it be someone from MAFF, the DETR or the MoD? Presumably, someone will hold the lead responsibility. That is not clear in the amendment.
Subsection (5) requires the listing authority to consult the appropriate conservation body. While we all know about whom the Government are talking, I hope that farming organisations and non-government organisations, particularly the wildlife groups, will also be included in those discussions. As we said in Committee, for the United Kingdom to work well, it is essential for all of those who care for our countryside—whether the countryside provides their living or they simply wish to preserve and conserve our
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countryside—to feel that they are included in the new arrangements. Other noble Lords have touched on that point. I wonder whether before Third Reading the Government might wish to consider an addition to the amendment should the Minister think it necessary. The main bulk of the amendment is perfectly all right.
Perhaps I may refer to the comment made by the noble Lord, Lord Hardy, about partnership. It is not just a government responsibility but involves drawing people together; and, of course, a very important matter is the money that goes with it.
Lastly—although I suspect that your Lordships will wonder where on earth Hazel is going when addressing the amendment—have the Government considered their position with regard to GMOs? Subsection (3) of the amendment requires the authority to,
"further the conservation of living organisms and types of habitat".
I know that they are not thinking in terms of GMOs, but has that point slipped through the net; and, if so, is there a view on it? I look forward to hearing the Minister's response.
9.15 p.m.
Lord Whitty: My Lords, I am grateful for the support expressed for Amendment No. 199A. I recognise that the noble Baroness, Lady Byford, and others who supported Amendment No. 217 were trying to achieve the same purpose as the government amendment and went a long way towards it. I just think that my amendment is a little bit better and a little bit wider. But I appreciate that that represented the consensus of the previous discussion on the issue.
Perhaps I may deal, first, with the amendments and then with the questions. I appreciate the intention behind introducing the word "further" in one context and "enhance" in the other. As far as concerns "enhance", as the clause is structured it would be tautologous. Subsection (7) of the amendment specifically defines conservation to include not only enhancement but also restoration. It therefore includes the concept of enhancement and goes beyond it as part of the general definition of conservation. The provision thus achieves what is intended in that respect.
In relation to "have regard" as distinct from "further" when we refer to all government departments and the other bodies referred to in subsection (1), partly for the reasons given by the noble Earl, Lord Peel, it is difficult to see how all public bodies could have as a responsibility "the furthering" in relation to their other prime responsibilities, but in pursuing those prime responsibilities they have to have regard not just to biodiversity—in other words, as a minimising impact—but to the purpose of biodiversity conservation. That is not a weak formulation. There will be lead departments. But all other bodies will have the responsibility to have regard in pursuit of their other objectives to the purpose of biodiversity conservation. In that context, the duty to have regard is more appropriate and should encourage the drawing

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in of a wider range of functions which can be delivered so that biodiversity is "mainstreamed" into other government policies in that respect.
I was asked various questions. My noble friend Lord Hardy and the noble Baroness, Lady Byford, referred to the nature of consultation. The primary consultation will be with the nature conservation agencies, but there will be a fuller opportunity through the UK biodiversity group for consultation with other interests. Those would include agriculture. I cannot give details of the precise timing of that consultation because it would depend on the circumstances. However, that sets out how the consultation would be conducted.
In terms of lead responsibilities, as the noble Baroness pointed out, they are clear in relation to Wales. In relation to England, as is the case with all legislation, we have used the term "Secretary of State". In almost all circumstances this would mean that the Secretary of State for the Environment would be the lead Secretary of State but obviously in full consultation with other Ministers.
Nothing sinister should be read into the reference to "principal importance" rather than "principal priorities". The word "priorities" rather suggests that we would have a list to work through, whereas matters of "principal importance" comprise those which should he treated according to their status in terms of conservation needs. That is the only nuance intended here and I believe that the term "principal importance" is more appropriate here.
As regards the issues of money, my noble friend Lord Hardy, the noble Baroness, Lady Byford, and the noble Earl, Lord Peel, all referred to resources and the burdens that would be put on to the statutory bodies. This clause will not of itself impose new burdens because the policy to which we are already committed in relation to our support of the convention ought in any case to be pursued by the bodies. It merely makes explicit their duty to do so under the terms of the clause. Considerable sums of money are already being spent by the department, by MAFF and by other agencies such as English Nature, the Forestry Commission and so forth. The commitment does not of itself create further burdens of expenditure; it merely prioritises the duties that should in any case be carried out.
At the end of her remarks the noble Baroness raised the question of GMOs. I had hoped that we would progress all the way through the Bill without entering into this area. I believe that the notion of being obliged to include GMOs in this clause is a little far-fetched. The clause requires the Secretary of State and the National Assembly for Wales to compile lists in light of the purposes of conservation of biodiversity as interpreted within the terms of the convention, with discretion as to which of those organisms are of principal importance. At this time it is difficult to contemplate how GMOs could fall within that category. For that reason, the concerns expressed as regards GMOs in this context are probably rather misplaced. We have referred to "living organisms"
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instead of species and that was not intended to incorporate species which are yet to be created I hope that the general understanding of the convention in this area would not include GMOs; indeed, nothing in the wording of the clause suggests that they should be included.
Baroness Byford: My Lords, before the noble Lord sits down, I was not trying to be mischievous. The phraseology suggested that the matter should be raised. Indeed, I was merely seeking clarification rather than the inclusion of GMOs under the clause.
Perhaps I may ask one question. First, as regards costings, has his department given thought to the kind of costings likely to be involved now or which are anticipated in the future or is this a little like a ball of string—unquantifiable?
Lord Whitty: My Lords, the costings involved in carrying out our duties under the convention, which have now been crystallised under the terms of the Bill, are included within the forward plans of the department under various headings, as well as under MAFF and certain other departments. They have been included in the current CSR figures.
Baroness Byford: My Lords, I hope that the noble Lord will forgive me for rising again. We have no idea of the costs involved here. Surely the Minister can provide an estimate of what kind of figures are being contemplated here.
Lord Whitty: My Lords, perhaps I may consult on the question and write to the noble Baroness.
Baroness Gibson of Market Rasen: My Lords, I thank the Minister for his helpful explanation. In the light of that explanation, I beg leave to withdraw the amendment.
[Amendment No. 199B, as an amendment Amendment No. 199A, by leave withdrawn.]
[Amendment No. 199C, as an amendment to Amendment No. 199A, not moved.]
On Question, Amendment No. 199A agreed to.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 200:
After Clause 69, insert the following new clause—

PROTECTION OF SITES OF SPECIAL SCIENTIFIC INTEREST
(" .—(1) English Nature, with respect to England, and the Countryside Council for Wales, with respect to Wales, may make byelaws for the protection of all or part of a site of special scientific interest (and may make different provisions for different parts thereof) under section 20 of the National Parks and Access to the Countryside Act 1949 (byelaws for the protection of nature reserves).
(2) Without prejudice to the generality of subsection (1), byelaws under that section as it applies by virtue of this section. May—

(a) prohibit or restrict the entry into, or movement within, the site of persons, vehicles, boats and animals;

(b) prohibit or restrict—

(i) the killing, taking, molesting or disturbance of living creatures of any description in the site;

(ii) the taking, destruction or disturbance of eggs of any such creature;

(iii) the taking of, or interference with, vegetation of any description in the site; or

(iv) the doing of anything in the site which will interfere with the soil or damage any object in the site;

(c) prohibit the deposition of rubbish and the leaving of litter in the site; and

(d) prohibit or restrict, or provide for the prohibiting or restricting, the lighting of fires in the site or the doing of anything likely to cause a fire in the site.

(3) Byelaws made under section 20 of the 1949 Act may prohibit or restrict any activity referred to in subsection (2) within such area surrounding or adjoining the site as appears reasonable for the protection of the site.
(4) Byelaws made under section 20 of the 1949 Act may provide for the issue, on such terms and subject to such conditions as may be specified in the byelaws, or permits authorising—

(a) entry into the site or any such surrounding or adjoining areas as mentioned in subsection (3), or

(b) the doing of anything within the site, or any such surrounding or adjoining area, where such entry, or doing that thing, would otherwise be unlawful under the byelaws.

(5) Byelaws made under section 20 of the 1949 Act as it applies by virtue of subsection (1) shall not interfere with—

(a) the exercise by any person of a right vested in him as owner, lessee or occupier of land within the site of special scientific interest, or in any such surrounding or adjoining area as is mentioned in subsection (3);

(b) the exercise of any public right or way; or

(c) the exercise of any functions of a section 28G authority.

(6) Where the exercise of any right vested in a person, whether by reason of his being entitled to any interest in land or by virtue of a licence or agreement, is prevented or hindered by the coming into operation byelaws made under section 20 of the 1949 Act as it applies by virtue of subsection (1), he shall be entitled to receive from English Nature, with respect to England, or the Countryside Council for Wales, with respect to Wales, compensation thereof.
(7) If any person without reasonable excuse (proof whereof shall lie on him) contravenes any byelaw made under section 20 of the 1949 Act as it applies by virtue of subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine not exceeding, in the case of a first offence, level 1 on the standard scale; in the case of a second offence, level 2 on the standard scale and in the case of a third and subsequent offence, level 3 on the standard scale.").
The noble Baroness said: My Lords, at the moment there is nothing on the face of the Bill to replace the Section 29 orders that the Bill removes. Therefore SSSIs which are not part of a national nature reserve nor part of internationally important sites are left without any effective protection against a particular threat. That is why we have brought forward Amendment No. 200. The noble Lord, Lord Judd, has sent me a note to say that I may speak strongly on his behalf—although I would never presume to speak as strongly as the noble Lord.
Since I tabled the amendment, the Government have brought forward Amendments Nos. 210 and 211. I shall be interested to hear what the Minister has to say about those. Contrary to the previous group of amendments, the government amendments—which cover the same issue—are much shorter than ours. I welcome that. I hope that the government amendments will cover the gap left in the Bill, which would make the less important SSSIs—if one can call them that—vulnerable and without protection in case of need. I beg to move.
Lord Monro of Langholm: My Lords, I was interested in what the noble Baroness said about SSSIs. However, I wonder whether she is not going far too far with her amendment, bearing in mind the powers already available in the Wildlife and Countryside Act 1981.
Some of us who sat on the committee—including the noble Lord, Lord Hardy of Wath—remember 26 sittings in another place dealing with the Wildlife and Countryside Bill, with particular reference to SSSIs from Section 28 onwards which gave immense powers to English Nature and the Scottish Nature Conservancy Council, subsequently SNH. I am fortunate to have been on both sides because, after being involved in taking the Act through another place, I was for nine years a member of the council implementing it.
One can see the great value of the SSSI system. One's only worry is that English Nature already has immense powers, and, of course, conversely in Wales and Scotland. I often feel that we are going rather further than the Act, particularly in regard to the extension of the SSSIs and the action that could be taken against a potentially damaging operation.
There was a very good article in The Times on 4th November by Magnus Linklater—whose wife, the noble Baroness, Lady Linklater, is not in her place who writes extremely well. The article refers to Scotland but the same impact could occur here with English Nature. The article states:
"Later this month five vast areas of rural Scotland, totalling some 200,000 acres of hill and moor, are to be designated Sites of Special Scientific Interest. The aim is to preserve not people, but wild birds; or, to be precise, one particular species of wild bird—the hen harrier".
and so on.
When we drew up the 1981 Act, we did not anticipate SSSIs of such enormous size. Even in my day on the NCC, there were moves to make large tracts of the Pennines into SSSIs. I do not think that that was the original intention; it was for much smaller, concentrated areas which could be managed more simply. When one sees SSSIs of 200,000 acres, one begins to wonder whether one is not merely nationalising land and preventing hard-pressed farmers from carrying out a great many operations that they would like to carry out and which would cause no harm at all.
When one has an SSSI, there are probably 15 or 20 matters on which one has to obtain permission before any action can be taken in terms of agricultural

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operation. Therefore, we must be very careful about giving greater powers to English Nature as regards its control of SSSIs, as the new clause seeks to do. We should move forward with great caution. The vast majority of people who are responsible for SSSIs, whether owners or tenants, look after them extremely well. They will not welcome further draconian powers being given to English Nature which will make it even more difficult for them to fulfil their duties. When people are hard-pressed financially, it is particularly difficult for them to enhance SSSIs or indeed the habitat of a farm, which can only come out of the profits, which at present are minimal or not there.
So, while I appreciate the wish behind the amendment, we should be very careful about increasing the powers that relate to SSSIs through English Nature and ultimately through the Minister responsible for rural affairs. I merely suggest a note of caution. We should not rush into this without careful thought. The powers are there, and we do not want to see them extended.
9.30 p.m
Baroness Young of Old Scone: My Lords, I declare an interest as chairman of English Nature. Perhaps I may take issue with a couple of points made by the noble Lord, Lord Monro. My experience, based on conversations that I have had with upland farmers, is that they are absolutely delighted if their land is designated an SSSI, because it is one of the few ways in which they can get additional income into their pockets as a result of management agreements on SSSI land at a time when they are indeed hard-pressed for funds. I am delighted to see that many farmers, both in the uplands and the lowlands, see conservation money as a useful adjunct to their income in these difficult times.
I also wish that it were possible to designate great tracts of the uplands of England for hen harriers. Alas, owing to illegal persecution in a quite shameful way, we are now down to fewer than 20 pairs of hen harriers in England. I support government Amendments Nos. 210, 211, 219 and 220. Bylaws can already be enacted on European sites and on national nature reserves. The amendments simply extend the provision to all SSSIs. It is much easier to prove infringement of by-laws than it is to prove damage to SSSIs. It adds a means of prevention rather than shutting the stable door after the horse has bolted. I strongly support these amendments.
Earl Peel: My Lords, I support Amendment No. 210 in principle. However, the words of my noble friend Lord Monro need to be heeded. Much of what he says is right. I accept what the noble Baroness, Lady Young of Old Scone, says about how much farmers welcome the additional income that comes on the back of an SSSI designation, that is not the original purpose of the designation; it is a by-product. Welcome though it may be, we need to be very careful that these designations do not get out of hand or become too draconian, and that they do not impose too much on the ability of people who own land to manage that
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land. There is a delicate balance, but there is a danger that in certain circumstances we may be going a little bit too far.
In regard to Amendment No. 210, the noble Lord, Lord Monro, is right in his reference to the Pennines. Large areas of the Pennines have been designed as SSSIs. I see this amendment, which would allow English Nature to make by-laws, as a possible advantage, especially as regards dealing with some of the abuses under the access provisions of the Bill that we failed to address at an earlier stage. Again, I suspect that that may be a by-product, but I shall be interested to hear the Minister's response as to whether or not such by-laws could be used in cases where, for example, people disregard Schedule 2 and Chapter 2 in Part I of the Bill. That may be one way of dealing with those abuses, albeit in a rather round-about fashion. Can the Minister give us an assurance that such bylaws will not impinge on the rights of owners and occupiers of this land? May I also assume that those owners and occupiers will be consulted before any such by-laws are introduced?
Baroness Mallalieu: My Lords, I, too, support the government amendment. I have reservations about Amendment No. 200 tabled in the name of the noble Baroness, Lady Miller, but it does have one advantage in that it spells out a concern that the noble Earl, Lord Peel, has just put into words. In subsection (5) of the amendment, the by-laws specifically,
"shall not interfere with … the exercise by any person of a right. vested in him as owner, lessee or occupier of land within the site of special scientific interest, or in any such surrounding or adjoining area as is mentioned in subsection (3)"—
and, indeed, shall not interfere with either,
"the exercise of any public right or way; or … the exercise of any functions of a section 28G authority".
Those matters are not spelt out specifically in the Government's amendment. I, too, should be glad if my noble friend the Minister could give us some undertaking that it is intended that those who own, occupy or lease land shall have some safeguards, and that they shall be properly consulted before such powers are exercised.
Lord Whitty: My Lords, much reference has already been made to government Amendment No. 210. The other amendments in this group are consequential upon it. Our amendment has the same objective as the noble Baroness's Amendment No. 200. However, I inevitably consider our amendment to be slightly better in one substantive respect; namely, that it is more focused than Amendment No. 200.
Having considered our earlier discussions in Committee and the issue of damage by persons other than owners and occupiers, we have been persuaded that there may indeed be circumstances where activities, which may well fall outside the general offence in 28P(6) of intentionally or recklessly damaging an SSSI, may nevertheless need to be curtailed. This amendment would enable the agencies to tackle situations and control activities that may be

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causing minor amounts of damage, but which, if carried out repeatedly or by a large number of people, would cause serious damage to the SSSI.
By-laws may well prove effective in many such circumstances. We believe that it would be appropriate to apply, with appropriate adaptations, the conservation agencies' existing by-law-making powers in relation to national nature reserves, so as to enable them to make by-laws for the protection of all, or part, of an SSSI. I refer back to the discussion that we had when we dealt with the point raised by the noble Earl, Lord Peel, and my noble friend Lady Mallalieu regarding the access position. Although by-laws may not interfere with the basic rights of owners or with the use of public rights of way, they may otherwise enable the agency to prevent or restrict movement within an SSSI. Therefore, by imposing restrictions via by-laws, some of the potential abuses to which the noble Earl, Lord Peel, referred in earlier debates would be tackled. I indicated at that stage that that was one of the ways in which such problems could be addressed later in the Bill.
One facility under the by-laws which may be particularly useful would be the power for the agencies to issue consents authorising activities that would otherwise be illegal under the by-laws. That would enable the agencies to permit sustainable levels of activity—for example, the diversification issues to which reference has been made—at particular times. However, we do not need a specific provision in this Bill because the powers of the agencies are included under Section 20(2) of the 1949 Act.
We also consider that the agencies should not seek to make by-laws without taking the views of those with an interest in the land. I hope that that reassures the noble Earl, Lord Peel, on the consultation aspect.
One difference between the amendment of the noble Baroness and mine is that my amendments contain only a limited power for by-laws to go wider than the SSSI itself in Section 20(2)(g) of the 1949 Act (which enables by-laws to restrict the shooting of birds where this is required to protect the SSSI). However, the noble Baroness's amendment goes further than that. We do not consider that appropriate, partly for the reasons adduced by the noble Lord, Lord Monro. We do not consider it appropriate to provide the agencies with unlimited powers to make by-laws on areas adjoining or adjacent to SSSIs. Although such a provision has been included with respect to by-laws on European sites, so far as we are aware no circumstances have arisen where the powers have been used. Where problems arise on an SSSIas a consequence of lawful activities on adjoining land, I anticipate that the agencies will need to negotiate with the owners and occupiers of the land rather than have powers to impose by-laws on land which is not part of the SSSI. If necessary, they could use the Section 15 powers of the Countryside Act 1968 to offer a management agreement, for example.
I think that that is a better way to deal with adjoining landowners than to extend the SSSI powers into those areas. That is the only substantive difference
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between the noble Baroness's amendment and mine. I believe that we are both attempting to achieve the same objective.
Baroness Byford: My Lords, before the noble Lord sits down, in response to a question of my noble friend Lord Peel he said that the Government would consult with landowners and others. However, that does not appear to be included in the amendment. While the noble Lord considers that point I turn to the noble Baroness's amendment. It is difficult to try to tackle such a wide range of matters. However, I seek to clarify two points.
Subsection (2)(b) of the proposed new clause in Amendment No. 200 refers to prohibiting or restricting,
"the killing, taking, molesting or disturbance of living creatures of any description in the site".
The control of squirrels or rabbits would fall foul of that provision. I suspect that that may constitute a problem. We have discussed the provision in subsection (2)(c) of the proposed new clause at several stages of the Bill. It seeks to prohibit,
"the deposition of rubbish and the leaving of litter in the site".
I believe that that provision is included elsewhere in the Bill. I seek clarification on that point either from the Minister or from the noble Baroness. However, I hope that it is already included. I should be worried if that were not the case. I am worried that, because of the lack of rural police, landowners, occupiers or land managers might be obliged to enforce these provisions. I thought that we had sought to avoid confrontation between visitors and those who work on and manage the land.
Baroness Miller of Chilthorne Domer: My Lords, I emphasise again that my amendment does not seek to duplicate anything in the 1981 Act. Section 29 of that Act, which enables nature conservation orders to be made, is repealed by the Bill. My amendment does not seek to address a new area but rather a gap that arises through the repeal of Section 29. I hope that that answers the points made by the noble Lord, Lord Monro, and to some extent the points made by the noble Baroness, Lady Byford, on rural police. The order-making powers would also have required enforcement.
I accept the noble Baroness's point about litter. I am not sure that rubbish falls within quite the same definition, but that is a small point. Subsection (2)(b)(i) refers to prohibiting or restricting,
"the killing, taking, molesting or disturbance of living creatures".
The control of pests would be covered by subsection (5)(a).
I am pleased that the Government have brought forward their own amendment to cover the gap left by the repeal of the Section 29 orders. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Schedule 9 [Sites of special scientific interest]:
Baroness Byford Baroness Byford moved Amendment No. 200A:
Page 114, line 16, at end insert—
("() In any of the circumstances referred to in subsections (1) and (2), the Council shall consider alternative options for securing the conservation of the flora, fauna or geological or physiographical features of the site, and shall discuss any such options with the persons referred to in subsections (1) and (2).").
The noble Baroness said: My Lords, in moving the amendment, I speak to Amendment No. 200B. As the Bill is drafted, it appears that English Nature and the Countryside Council for Wales could simply refuse consent for an operation notified to them and walk away from the issue. Such a strategy could potentially damage any possibility of developing a positive relationship with the owner or occupier. A disgruntled occupier could feel left in limbo.
Accordingly, it is important that at the same time that English Nature or the Countryside Council for Wales refuse, withdraw or modify a consent they also consider alternative options for conserving the special interest of the site and discuss these options with the owner or occupier.
The options could include doing nothing, seeking a mutually agreed grazier—for example, where the occupier no longer keeps livestock—or offering a management agreement to secure positive management. It is to be hoped that through such consideration and dialogue a positive working partnership can be established between the parties.
I turn to Amendment No. 200B. It is important that proper consideration is given to the interests of agriculture and forestry and economic and social interests by whoever is appointed to hear appeals. Under Section 28G any person who hears appeals will be bound by the requirement to,
"further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest".
That duty must be counterbalanced by a duty to take account of the interests of those bringing appeals, which will often relate to agriculture, forestry or economic or social matters. If the conservation and enhancement duty is not effectively balanced, anyone making an appeal is likely to feel that the cards are stacked against them.
The amendment, which draws on the duty placed on English Nature and the Countryside Council for Wales by Section 37 of the Countryside Act 1968, provides for the necessary balance. I beg to move.
Earl Peel: My Lords, I support both amendments. On Amendment No. 200A, it would be unfortunate if the conservation authorities simply dismissed a consent from an owner or occupier without seriously considering an alternative option. I have no doubt that in most cases this will be considered. I can only speak from my experience when dealing with the regional officers of English Nature. They are extremely reasonable. I have no doubt that in most cases such an option will be considered. However, we have a duty to
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legislate for the unlikely. It is also important that owners and occupiers feel confident that the system is fair. It is unlikely that they will consider such art option unless it is a serious matter. We owe it to them to make the system fair and equitable.
On Amendment No. 200B, I understand that an owner or occupier who has been refused a consent under new Section 28F in Schedule 9 or who is aggrieved by the conditions attached to that consent may appeal to the Secretary of State. That seems fair and proper. However, as my noble friend pointed out, whoever is appointed to hear such appeals is bound under Section 28G,
"to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest".
That is fine. I have no problems with that concept. However, coming back to fairness and reasonableness, whoever is responsible for hearing the appeal should have due regard for local economic and social needs. The terminology in the amendment appears in many Acts of Parliament, so there is already a precedent for it.
The words "due regard" hardly compete with the words,
"to further the conservation and enhancement of".
The amendments would not seriously erode the principles behind the Bill. However, they would bring some reality to the decision-making process. As I said on the previous amendment, if an owner or occupier goes to the trouble of seeking a consent under Section 28F, he will have a good reason for doing so. It is only right and proper that his considerations should he given a fair hearing, alongside the obligations that the Bill places on the person conducting the hearing.
Lord Whitty: My Lords, I hope to be able to convince the noble Baroness that the amendments are unnecessary. Like her, we would prefer a partnership approach. When a landowner or occupier applies for a consent, he will already have before him the notification, which explains what is special about the land and what operations are likely to damage the special interests. He may also have the agency's statement of views on the management of the land. He should have approached the agency to discuss his plans and explore the options before making the application for consent. Even if he has not, there is still an opportunity for discussion should consent be refused or granted with onerous conditions that the owner or occupier is not happy with. That is why the provisions for making an appeal allow the agency and the owner or occupier to agree to extend the time limit.
There is plenty of scope for looking at the options. However, it is not appropriate to put the onus entirely on the conservation agency to come up with alternatives. Clearly, it would need to be prepared to discuss the options with the owner or occupier.
The code of guidance to the agencies, on which we are consulting, promotes positive partnerships and pre-application discussions. The consideration of

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alternatives will also be very helpful. English Nature will then be in a position to suggest ways of making the operation acceptable.
However, there is no need to specify that informal process in the Bill. Each case is different. Alternative ways of carrying out the proposed operation, potential enterprises or suitable conservation options will vary widely. The agency should not be forced to consider alternatives only when an owner or occupier is seeking to carry out operations listed on the notification as likely to damage the special interest features of the site. It would also be impractical to burden the agency with such a general duty. The requirements to consider alternatives are built into the guidance under the Bill. The amendment would place too rigid a formulation on the agency.
As the noble Earl, Lord Peel, said, the phraseology of Amendment No. 200B is already contained in earlier Acts. When considering appeals, the Secretary of State will have regard to the requirements of Section 37 of the Countryside Act 1968, which states that in the exercise of their functions under that Act, the 1949 Act and the Wildlife and Countryside Act 1981,
"it shall be the duty of every Minister … to have due regard to the needs of agriculture and forestry and to the economic and social interests of rural areas".
As the appeals under this provision would come under the 1981 Act, as amended by this Bill, that duty will already apply. Therefore, the amendment is unnecessary and I hope that the noble Baroness will not pursue it.
Baroness Byford: My Lords, I am grateful for that latter clarification. Before I finally withdraw the amendment, perhaps I may ask the Minister a question. He mentioned the code of guidance. Is that already covered in the Bill or will it be dealt with later? I was not aware of it.
Lord Whitty: My Lords, I am not sure that I can point to the provision in the Bill under which it comes. However, we are currently consulting on the draft paper. If it is not in the Library, it probably should be, and I shall ensure that the noble Baroness receives a copy of it before Third Reading.
Baroness Byford: My Lords, I am grateful to the noble Lord—not for more reading but for his response. It worried me that, as we go through the Bill, we keep discussing matters which, we are told, we shall come to but which are not relevant at present. However, if the Minister says that the code of guidance is being dealt with, I shall certainly have a look at it. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 200B not moved.]
[Amendment No. 201 had been withdrawn from the Marshalled List.]
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 201A:
Page 115, line 39, at end insert—
("() Where the Council does not assent to the proposed operation or assents to the proposed operation but with conditions, any dispute between the Council and a statutory undertaker shall be determined by a person appointed for the purpose

(a) by an agreement between the Council and the section 28G authority; or

(b) failing such an agreement, by the Secretary of State,

and on any such reference the person so appointed may confirm the decision of the Council or give the section 28G authority such directions as he thinks appropriate.").
The noble Baroness said: My Lords, this amendment returns to the problem that we had in Committee in relation to a disagreement between the conservation bodies under the Section 28G authority about an operation likely to damage an SSSI. Our amendment would allow either party formally to seek the view of the Secretary of State before the operation proceeded.
In Committee, I tabled an amendment which sought to use the planning process to resolve the issue. However, given my explanation and the reply from the noble Lord, Lord McIntosh, I was persuaded that that was perhaps not the correct route to take. But I believed that the principle was worthy of pursuit. Therefore, in tabling this amendment I suggest the simpler route of an appeal to the Secretary of State.
If we leave the Bill as it is, there will be no mechanism to ensure a satisfactory outcome. English Nature's briefing on this amendment states that it believes that,
"whilst such a provision would be useful it is not necessary to add it to the face of the Bill itself, as enshrining it in statute may constrain attempts to reach a mutually acceptable solution".
I fully accept that. However, if an acceptable solution was not reached, the problem would remain.
English Nature goes on to say that, although it supports the principle, it believes that,
"this useful provision would be better incorporated into the Code of Guidance Ministers are preparing, which already provides explicit guidance for statutory authorities in paragraph 60".
English Nature states:
"Ministers expect that all public bodies, in deciding to go ahead against English Nature's advice, will clearly demonstrate how they have weighed the balance between differing interests".
The question that I must return to is: what if those bodies have not satisfactorily demonstrated how they have weighed the balance? Will the matter then be left in stalemate? English Nature may decide that it can appeal directly to the Minister. However, could the Section 28G authority appeal in the same way? Although such cases may not be frequent, I believe that when they occur they are likely to be difficult. Without a clear mechanism, they are likely to waste public time and money in a resolution that could, if our amendment were followed, be resolved easily. I beg to move.
Baroness Young of Old Scone: My Lords, I am grateful to the noble Baroness, Lady Miller of

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Chilthorne Domer, for pursuing this issue with dogged determination. It would, indeed, be a serious issue if the statutory conservation body under the Section 28G authority failed to agree a proposed operation where the advice of the statutory conservation body was that the operation would damage the SSSI. I believe that it would be a serious issue for two reasons.
First, under this provision the statutory undertakers will have much broader responsibilities than they have ever had before. That will include responsibilities outside SSSIs that would have an impact on SSSIs. So these are entirely new circumstances and statutory undertakers will have no experience of them. Therefore, it is easier to see that their judgment could be wrong and they might plough on regardless of advice.
The second point I raise makes it an even more serious issue. The provision extends the duty to make that judgment to many more statutory undertakers than in the past. I say many more, but I probably mean many, many more. Can the Minister give a definite number of these statutory undertakers? I suspect that he cannot because I believe the reality is that no-one knows how many statutory undertakers there are. I know there are at least hundreds because they include the local authorities and the internal drainage boards. Possibly there could be several thousand of these statutory undertakers who, for the first time, have the responsibility of making a decision whether to damage an SSSI or not. I believe that any of this plethora of inexperienced undertakers could quite simply make a wrong decision.
As the noble Baroness, Lady Miller, rightly pointed out, the statutory consultation agency could refer to the Minister or ultimately seek a judicial review. But the Bill gives only 21 or 28 days in which to resolve a dispute and then the statutory undertaker can go ahead.
One might also say that the requirement in the Bill for Section 28G authorities to restore damage afterwards might act as a deterrent to them making rash decisions. But it might not. In many cases, once an SSSI is damaged restoration is not possible. I believe that the spirit of Amendment No. 201A provides a clear and more positive way of resolving these potentially highly damaging and rather unpredictable disputes. If it is not on the face of the Bill, perhaps I may at least press the Minister to give an undertaking that this provision will be clearly outlined in the code of guidance.
10 p.m.
Baroness Byford: My Lords, before the noble Baroness sits down, I was slightly disturbed to hear her say that once an SSSI is damaged it is almost irreparable. That would be of great concern because around the countryside a great deal of quarrying is taking place on SSSI land. The quarry owners put the
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sites back together and they become wonderful SSSI sites. Did the noble Baroness really mean what she said?
Baroness Young of Old Scone: My Lords, I am grateful for the noble Baroness seeking guidance on this matter. Many habitats are pretty robust and one can do all kinds of things to them and they will eventually recover. But there are some which are so delicate that, if they are damaged, they either do not recover or recovery takes many, many years. It would be unfortunate if a statutory undertaker, simply through lack of experience, were to carry on regardless of that effect.
Lord Whitty: My Lords, one understands that there may be disputes in this area, although they would be few and far between. I do not believe that the noble Baroness's amendment deals with the matter in the appropriate way, which is to try to ensure that where such works are carried out they take place either with agreement or with provisions for effective restoration. Bearing in mind what my noble friend Lady Young said, there may be problems in that area and lid I restoration must meet the statutory requirements.
However, we are setting up a whole new structure of arbitration here. The amendment would potentially permit an arbitrator to enforce a decision on a public body even though the public body was carrying out an operation which it was statutorily required to do through the public body's own legislation. The amendment would not impose any time limit on the arbitrator in determining the dispute; nor would it provide any direction as to what criteria the arbitrator should apply.
The effect of such an unfettered process of dispute resolution could result in a complete block on public bodies carrying out their work. In many cases the work of these public bodies on drainage and so forth could be absolutely essential for both the conservation area itself and the wider interests of farmers and others within that area.
Safeguards are already built into the Bill. The starting point is the overarching duty in Section 28G(2). Where a public body proposes to carry out an operation which is likely to damage an SSSI, we have provided for notice to be given. Where a public body has not received assent to proposed operations, that body must nevertheless give 28 days' notice.
Paragraph 60 of the code of guidance already makes clear that Ministers will expect all public bodies, in deciding to go ahead against English Nature's advice, to demonstrate clearly how they have weighed the balance between differing interests. The 28-day period allows the conservation agency to consider whether it wishes to take any further action—for example, raising the matter with Ministers or the courts in some circumstances, who may determine whether or not to seek to dissuade the public body from proceeding. In certain circumstances, there may already be formal powers for the Secretary of State to intervene but, in general, that will not be the case.

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Further safeguards exist in that, even after the procedures in Section 28H(4) and (5) have been gone through, the work must be carried out so as to cause as little damage as is reasonably practicable.
It is likely that many of the activities carried out by public bodies could constitute development, being consents granted under their own enabling legislation. In exceptional circumstances, a local planning authority, for example, may consider that planning control should apply to permitted development. It is open to the local planning authority to consider whether to pursue the matter by making a direction under Article 4 of the general development order, which can potentially remove the particular development right and require an application for planning permission.
Where the operation does not benefit from permitted development rights or consents granted by the public body, the public body will be subject to normal planning control and will have to submit a planning application. There are arrangements under Part IV of DoE Circular 18/84 to ensure that Crown bodies which are presently immune from planning control are also affected in that way. If the local planning authority objects to the proposal and the objections cannot be resolved through negotiation, the Crown body must refer the proposal to the Secretary of State for his determination. So in that context, there is effectively an in-built appeals procedure.
In most cases one would hope that the public body and English Nature would reach agreement. Where they do not, there is a time period for English Nature and the Welsh equivalent to decide how to take that further. To build in a new arbitration system with what are fairly draconian powers over public bodies which have been entrusted with other responsibilities different from those covered by this Bill is the wrong approach. I ask the noble Baroness not to press the amendment.
Baroness Miller of Chilthorne Domer: My Lords, there is something of an illusion that many of these activities would, after a period of time, result in satisfactory restoration of the sites. Certainly in Committee, I cited the example in Dorset of a local authority wanting to convert heathland, which is perhaps the most fragile of any habitat, into an urban parkland. I very much doubt that that would be restorable within decades, even if there were a will so to restore it.
I hear what the Minister says and I shall carefully read his reply in Hansard. I still believe that the advice that Article 4 can retrieve all those operations is wrong. I see that I am not likely to persuade the Government on this issue. I am sorry that we shall probably face a situation where agreements will fail to be reached in some circumstances. Eventually, those will probably have to go to judicial review rather than there being a mechanism which would have solved the problem more easily and earlier. But in the meantime, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendment No. 202 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 203:
Page 117, line 3, at end insert (", unless the Nature Conservancy Council have notified the authority that it need not wait until then.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 207 and 208. The issue of consents or licences which may be granted by a public body—which the Bill refers to as a Section 28G authority—was raised in Committee by the noble Baroness, Lady Wilcox. Government Amendments Nos. 203, 207 and 209 seek to address those concerns.
As presently drafted, the Bill requires a public body to wait for 28 days before issuing its decision on an application for consent. That is to allow for consultation with the conservation agency. Amendment No. 203 will allow the public body to issue its decision at any time within the 28-day period, providing the agency confirms in writing that it need not wait.
Amendments Nos. 207 and 209 provide defences for offences under Section 28P(6) of intentionally or recklessly destroying or damaging SSSIs. Those will be particularly relevant as respects persons carrying out operations who are not owners or occupiers of an SSSI. Those defences are similar to those available to owners or occupiers of SSSIs. They will include situations where planning permission has been granted on an application for the works; where the works are urgently required; and where the works have been authorised by a Section 28G authority acting in accordance with the terms of Section 281, which will involve notification and so on.
I shall listen to the noble Baroness who, no doubt, will want to speak to Amendment No. 204. I beg to move.
Baroness Wilcox: My Lords, I thank the Minister for having listened and for returning with a good resolution to the amendment that I tabled at an earlier stage of the Bill. Amendments Nos. 207 and 209 will achieve the same effect as my Amendment No. 208 would have done. I was delighted to be able to withdraw it.
However, I want to speak to Amendment No. 204 and ask the Government to consider carefully the value of it. It is intended to reduce the bureaucratic workload that the Bill would generate. It enables the consultation procedures set out in Section 281 of the Bill to be focused on real problems, rather than blindly requiring consultation for all permissions affecting an SSSI, whether or not they pose a threat to wildlife. An earlier version of this amendment was met with initial approval in our debate on the Bill, but was ultimately rejected on the grounds that it referred to another part of the Bill that was directed specifically at owner-occupiers rather than statutory bodies.
That much-commended body of officers at the DETR have written in support of the view that the consultation procedure should be tailored to suit the

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features of each SSSI. They have proposed that administrative measures should be used for that, and that a memorandum of understanding should be agreed between the council and statutory bodies. The DETR suggests that that memorandum may, for example, exempt certain permissions from the consultation procedure.
I regret to inform your Lordships that the Bill in its current form provides no facility for such exemption from consultation. Although there is no obstacle in the Bill to the agreement of a memorandum of understanding, neither the statutory body nor the council could rely upon such a memorandum as a legal excuse from undertaking consultations demanded by the Bill. The memorandum would leave both the statutory body and the council vulnerable to legal challenge, making it, in effect, worthless.
Along with the Shellfish Association of Great Britain, the North Western and North Wales Sea Fisheries Committees, the worried cockle fishermen and other fishermen who earn their living on these estuaries, I have studied carefully the comments of the noble Lord, Lord Whitty, and the DETR on my original amendment, and I believe that Amendment No. 204 incorporates changes which overcome the objections to the original. I hope that the Minister will recognise that this is a pragmatic amendment that offers to streamline the administration of the Bill and to reduce its burden on public bodies without compromising the protection of wildlife.
Lord Whitty: My Lords, I have been informed of the particular concerns expressed by bodies such as the sea fisheries committees. Nevertheless, I hope that I can reassure the noble Baroness. It is part of the duty of the public body to ensure that the agency has an opportunity to comment on applications for permission, consent or licences where the activity is likely to damage the special features of an SSSI. It is also open to the agency to reach the kind of memorandum of understanding to which she refers. In certain circumstances we would wish to encourage that in terms of the correspondence from my department.
As the conservation agency by reaching an agreement with the public body has confirmed that the activity is not likely to damage the special interest, there would be no requirement to follow the procedures under new Section 281. There is therefore no need for an agreement to be specifically included in the legislation as a reasonable excuse because such an agreement would already have been confirmed by the conservation body and would be a reasonable excuse against prosecution. We do not believe that the noble Baroness's amendment is necessary and I hope that, with those reassurances, she and those in the sea fisheries sector who are concerned will take comfort from the albeit slightly more indirect protection which a memorandum would have. I assure her that that would be the position because of the implied agreement of the conservation body, which is already a signatory to the memorandum.
On Question, amendment agreed to.
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[Amendment No. 204 not moved.]
10.15 p.m.
Lord Luke Lord Luke moved Amendment No. 205:
Page 117, line 31, after ("them") insert ("to a condition Which existed at the time of the notification of the site under the 1981 Act or at any other time after such notification").
The noble Lord said: My Lords, the amendment develops Amendments Nos. 486A and 487B, which were discussed in Committee. It is still unclear where the baseline exists for deciding the condition to which an SSSI should be restored. The amendment specifies that it was the condition of the land at notification of the SSSI, or at a point in time after it, to which restoration should refer. It qualifies the reference to restoration in the reference setting out the contents of management schemes.
The amendment would prevent English Nature and the CCW insisting under a management notice that the site should be restored to some pristine condition in which it could have been at any time in the past. It would not prevent English Nature and the CCW al: any time negotiating a voluntary agreement with an owner or occupier to restore a site to any agreed condition.
The amendment would not affect the powers in relation to the restoration of an SSSI where a successful prosecution had been brought against someone who damaged it. In cases where an offence of damaging an SSSI under the Act has been proven, it is right to insist on restoration to the condition before the offence took place. I beg to move.
Baroness Young of Old Scone: My Lords, this is one of the most important amendments we are debating tonight and I want to speak firmly against it. Amendment No. 205 would condemn those SSSIs which are in an unfavourable condition at the time of notification to remaining in an unfavourable condition potentially for ever. Sixteen per cent of the SSSIs notified since 1998 were in an unfavourable condition at the time of notification. Forty per cent of our SSSIs are in an unfavourable condition and they are our few sites of national and international conservation importance. Frankly, the fact that we have sites in such condition is a national disgrace.
The sites require management action to restore to an adequate condition the features for which they were notified. It is not about a mythical state that existed at some point in the past or a notional baseline; it is a state defined by objective criteria for the individual features for which the site was notified. Perhaps a layman's explanation of those criteria needs to be provided for SSSI owners and occupiers so that they are not shrouded in mystery and appear to be less like longing for the Nirvana of a past age which is unobtainable by anybody. There is a simple way to describe "favourable condition" in relation to each of these features, and I hope that that is reassuring to owners and occupiers.
In the vast majority of cases management action can be obtained by voluntary agreement with owners and occupiers of SSSIs, with the support of advice and

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funding. In the very few sites where there is no voluntary agreement there are provisions in the Bill for a management scheme and, ultimately, a management notice to ensure that restoration to a favourable condition occurs. However, both of those would be accompanied by the provision of funding and technical support. There are provisions in the Bill for the proper hearing of appeals against management notices if owners and occupiers feel aggrieved. There are more than adequate safeguards against any concern that some kind of high-handed, unilateral action will be taken by blind statutory conservation organisations. I hope that the Minister will resist the amendment.
Earl Peel: My Lords, I have difficulty with the situation in which we find ourselves as a result of this amendment. I understand what the noble Baroness says and appreciate the aspirations of English Nature and any of the statutory bodies to enhance SSSIs. However, it seems rather harsh to insist that the land in question should be forcibly changed to a standard of management different from that which obtained on designation. The noble Baroness shakes her head, in which case I have obviously misunderstood.
Baroness Young of Old Scone: My Lords, it is rather strange that a site which is in an unfavourable condition should somehow remain in that state, as the noble Earl suggests. If all one is doing is setting in aspic its unfavourable conservation condition, which may be declining, it almost begs the question why the site was designated in the first place.
Earl Peel: My Lords, there is some misunderstanding. It is odd that a conservation body may ultimately resort to a management notice, which is a fairly draconian measure, to achieve better standards than existed when the site was designated. I have no objection whatever to the idea of English Nature or CCW entering into a wildlife enhancement scheme to try to improve the standard of a site, but it is perhaps a little unreasonable to use these draconian measures if the owner is against it. I am certain that the Government will reassure us that they hope these measures will be dealt with in an agreeable fashion without recourse to action at this level. I declare an interest as an SSSI owner. English Nature might tell me that it intended to designate the site because it had potential for improvement, and it could force that upon me even if I thought that it was not in my interests to do so. Perhaps I am being unreasonable, but I believe that my noble friend raises a point which is somewhat inequitable.
Lord Monro of Langholm: My Lords, perhaps the noble Baroness can intervene at some stage to deal with the following matter. Why have so many sites got into a bad state? Is it because English Nature has insufficient funds to make management agreements to keep the SSSIs up to the required standard, or is there a shortage of management to carry out the work? The onus seems to be on English Nature to indicate why
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these sites are in such poor shape and why it is not doing more to bring them back to where they should be.
Lord McIntosh of Haringey: My Lords, the answer to the last question is that for a number of years there has been reliance on voluntary agreements. Sometimes that voluntary agreement has worked and sometimes it has not. Conservation agencies have discussed site management statements or conservation plans with many owners and occupiers of SSSIs. They have often been able to agree on measures designed to bring the sites back into good health. My noble friend Lady Young is right that that must be English Nature's objective. It certainly is the Government's objective. That is called "favourable condition". I shall return to that because the noble Lord, Lord Luke, asked what is the baseline about which we are talking. Sometimes this process works, and sometimes it does not.
The Bill's provision for management schemes in new Section 28J represents a formal recognition of this voluntary process. It similarly includes requirements for consultation. Subsections (3) and (7) of new Section 28J provide extensive opportunities for the land manager to contribute his or her expertise, often based on his or her knowledge of the condition of the land over a number of years, in the process of establishing the most appropriate management for the site.
The management scheme—or any similar arrangements, agreed separately—will be a key feature in helping to combat neglect, which is often a factor on sites where the special features are not in good health, and in helping to change management practices which do not support the special interest. Where change is required, the agency would of course offer a management agreement if additional costs were involved.
The noble Lord, Lord Luke, asked what was the baseline; what is meant by a site being in "favourable condition"? There cannot be a general answer. One can only give an answer in the context of an individual site. It must be related to the conservation objectives for the site. The objectives identify the minimum standard of conservation management needed to maintain the special interest that justified the notification of the land as an SSSI in the first place. They will relate to specific features on a site, such as the habitat requirements of species, or the area and composition of habitats. "Favourable condition" is the standard against which the agencies measure whether SSSIs—our most special nature conservation sites—are in good health. There is one standard; there is no one favourable condition. There can only be a favourable condition for each site.
In considering the action that a management scheme may need to include to restore a site where the features are not in good health, the agency will have regard to the statement of views about the management of the site, which Section 28(4) of the Bill requires it to prepare when notifying a new SSSI, or within five years for existing SSSIs. The statement will have explained in broad and simple terms the kind of

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management which would best support the special features of the SSSI; in effect, a summary of the conservation objectives. But in drawing up a management scheme for the site as a whole, or for an individual landholding within it, the agency will look to integrate those conservation objectives with the owner or occupier's management plans for the land. The agencies will be looking for the most sustainable match which secures the best opportunities both for the land manager and for the conservation interest.
SSSIs can only be notified on the basis that they contain special features which justify notification, but not all of the features will necessarily be in good health at the time the site is notified. A number will have aspects that require remedial action. I believe it would be an unreasonable constraint to prevent management schemes from seeking to achieve this, and might significantly compromise our long-term objective of securing favourable condition for all SSSIs. As the noble Baroness, Lady Young, rightly said, if we cannot go back to favourable condition and seek to improve on the conditions which existed at notification then in many cases it is not worth actually notifying an SSSI.
I believe the agencies should be reasonable and realistic in their expectations. Clearly, long-term decline cannot necessarily be reversed overnight. Securing healthy sites, in favourable condition, may be a long process, for which the active co-operation of the owner or occupier is an essential pre-condition for success.
That is why I emphasise the value to the conservation agencies of taking account of the land manager's own objectives. There will of course be opportunities to challenge a scheme if anyone considers it to be unreasonable. There is an opportunity to make representations once a scheme is served. The agency must consider these and English Nature is drawing up internal arrangements to ensure that representations are given a wholly fresh examination. If a management notice must eventually be served requiring action to be taken, there is a right of appeal to the Secretary of State, who can consider the extent to which it is reasonable to expect the works listed in the notice—and the management scheme—to be carried out.
I accept that the agencies must be cautious about imposing unreasonable or inappropriate demands on land managers, but restricting their ability to seek to secure the restoration to good health of all SSSIs could be damaging. I hope that the amendment will not be pressed.
10.30 p.m.
Lord Luke: My Lords, we are to some extent going round in circles and I believe that there is something of a misunderstanding. I am sure I am right in saying that the SSSI scheme has been going for some 20 to 25 years. It would be reasonable to assume that during that period nearly all SSSIs have been well managed due to the management schemes that were put in place
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when they were notified at the time, and that there are probably very few indeed which require the restoration that may or may not be needed.
Baroness Young of Old Scone: My Lords, perhaps I may give two facts. First, 40 per cent of all our SSSIs are in an unfavourable condition and are showing no signs of improvement. Secondly, under the current legislation, until the Bill becomes an Act, if a landowner or occupier refuses to undertake a management plan, we ultimately have no statutory means of insisting that work to carry out improvements takes place. There is a serious problem. At the moment we have no mechanisms as a nation to resolve the problem if there is no ability to reach agreement.
Lord Luke: My Lords, I am most grateful to the noble Baroness. I am astonished to hear that such a large proportion of SSSIs, which were established some time ago, are not in a good state. I am in favour of them being restored to the condition that they were in, or better, when the notification took place 20 years ago.
Lord McIntosh of Haringey: My Lords, "or better". Those are the words.
Lord Luke: My Lords, "or better", under a voluntary agreement. The objective of the amendment is to stop any indication to a perhaps negligent owner who has not kept to the terms of the original agreement that he should restore the SSSI not only to what it was when there was a satisfactory agreement in place but going back to something that was never there in the original agreement. That is all I am talking about. I have no objection to getting back to the condition they should be in. I think that we are all on the same side. I shall withdraw the amendment but I should like to discuss the matter with the noble Baroness, Lady Young, to see whether we can sort out exactly where we are. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Luke Lord Luke moved Amendment No. 206:
Page 118, line 22, at end insert—
("() Where a notice under subsection (3) has been given and is subsequently withdrawn, the Council shall reimburse any costs reasonably incurred by any of the persons mentioned in subsection (3) in making any representation or objection in relation to the notice.").
The noble Lord said: My Lords, this amendment should be a little less difficult. It is an established principle that where a statutory body commences any proceedings which lead to the person affected incurring costs in dealing with the proposal and the body then fails to proceed for whatever reason, the person affected is entitled to receive reimbursement of those costs from the body concerned. For example, the principle has been established in relation to compulsory purchases of land under Section 31 of the Land Compensation Act 1961.
The same principle should apply where a notice regarding a management scheme is not subsequently confirmed in relation to an owner or occupier who was notified and who reasonably incurred costs in handling and responding to the notice. Such costs could include those of attending meetings with English Nature or the Countryside Council for Wales or in seeking proper professional advice on the implications of the notice or in seeking professional assistance in preparing any representation or objection. I beg to move.
Lord McIntosh of Haringey: My Lords, in Committee the noble Lord, Lord Luke, and the noble Earl, Lord Caithness, referred us to Section 31 of the Land Compensation Act 1961. It is quite right that where a notice to treat following a compulsory purchase order is withdrawn the costs of the owner or occupier should be reimbursed. However, I do not think that this is a parallel situation. On a successful objection to a compulsory purchase order such that it is not confirmed, the costs of making the objection at a public inquiry follow the event; that is, an award of costs is made automatically. If a compulsory purchase order is confirmed, the acquiring authority then serves a notice to treat. The owner or occupier needs to take steps in response—for instance, terminating an operation or acquiring new property—which would be rendered abortive if the notice were withdrawn. Confirmation in such a case would take away from the objector some right or interest in land for which the legislation gives an explicit right to compensation.
In planning law, a revocation or discontinuance notice which prevents implementation of a previously granted planning permission or a stop notice requiring cessation of activities which do not have the benefit of planning permission and where enforcement notice proceedings are being taken are examples of analogous cases where compensation is payable and where costs would "follow the event if the notice was not confirmed on appeal. That could also arise under this Bill if an agency sought to withdraw an existing consent and its action was quashed following an appeal.
But this is not the case with a management scheme. A scheme would be the result of extensive consultation and discussion. It reflects, in statute, the conservation agencies' existing practices in agreeing site management statements and conservation plans, which land managers have welcomed and encouraged. The purpose of the scheme is to reach agreement on the preferred management of the conservation interest. This could include confirming activities which may take place or which have consent. It may be accompanied by a management agreement supporting positive management. It should therefore be of benefit to an owner or occupier, although it is quite possible that it could be withdrawn in favour of a voluntary agreement. It does not remove any rights and there is no entitlement to compensation.
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A management scheme is by no means analogous to a compulsory purchase order, as the noble Lord, Lord Luke, appears to suggest. I hope that he will not press this amendment.
Lord Luke: My Lords, I am not terribly happy with that explanation. I believe that this is similar to a compulsory purchase order which has not been carried out. This concerns an outside agency which would come into an owner's private property. Obviously the owner would wish to secure the best possible advice as to how he should deal with it and thus costs will be incurred. If the whole procedure then goes through, everything will be taken care of but if, for whatever good reason, it is then stopped, it seems to me that it would be extremely unfair on the owner.
I should like to test the opinion of the House on this matter.
10.39 p.m.
On Question, Whether the said amendment (No. 206) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 46.

Division No. 1

CONTENTS

Arran, E.

Luke, L. [Teller]

Brougham and Vaux, L.

Marlesford, L.

Buxton of Alsa, L.

Monro of Langholm, L.

Byford, B.

Monson, L.

Dixon-Smith, L. [Teller]

Montrose, D.

Elton, L.

Peel, E.

Glentoran, L.

Renton of Mount Harry, L.

Griffiths of Fforestfach, L.

Selborne, E.

Hodgson of Astley Abbotts, L.

Waldegrave of North Hill, L.

Hunt of Wirral, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Howells of St. Davids, B.

Amos, B.

Hunt of Chesterton, L.

Archer of Sandwell, L.

Lea of Crondall, L.

Bach, L.

Macdonald of Tradeston, L.

Bassam of Brighton, L.

McIntosh of Haringey, L. [Teller]

Billingham, B.

Borrie, L.

MacKenzie of Culkein, L.

Brooke of Alverthorpe, L.

Maddock, B.

Carlile of Berriew, L.

Miller of Chilthorne Domer, B.

Carter, L. [Teller]

Ponsonby of Shulbrede, L.

Clarke of Hampstead, L.

Ramsay of Cartvale, B.

Evans of Watford, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Rennard, L.

Filkin, L.

Simon, V.

Gibson of Market Rasen, B.

Stone of Blackheath, L.

Gilbert, L.

Thornton, B.

Greaves, L.

Warner, L.

Hamwee, B.

Warwick of Undercliffe, B.

Hardy of Wath, L.

Wedderburn of Charlton, L.

Harris of Haringey, L.

Whitaker, B.

Whitty, L.

Harrison, L.

Williamson of Horton, L.

Haskel, L.

Woolmer of Leeds, L.

Hayman, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
10.49 p.m.
[Amendment No. 206A not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 207:
Page 122, line 25, at end insert ("without reasonable excuse").
On Question, amendment agreed to.
[Amendment No. 208 had been withdrawn from the Marshalled List.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 209:
Page 122, line 34, at end insert—
("() It is a reasonable excuse in any event for a person to do what is mentioned in subsection (6) if—

(a) paragraph (a) or (b) of subsection (4) is satisfied in relation to what was done (reading references there to an operation as references to the destruction, damage or disturbance referred to in subsection (6)), and

(b) where appropriate, subsection (5) is also satisfied, reading the reference there to an operation in the same way.").

On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 210 and 211:
Page 123, line 23, at end insert—
("Byelaws.
28R.—(1) The Nature Conservancy Council may make byelaws for the protection of a site of special scientific interest.
(2) The following provisions of the 1949 Act apply in relation to byelaws under this section as they apply in relation to byelaws under section 20 of that Act—

(a) subsections (2) and (3) of section 20 (reading references there to nature reserves as references to sites of special scientific interest); and

(b) sections 106 and 107.").

Page 124, line 25, at end insert—
("(1B) Byelaws made by virtue of section 28R may apply to Crown land if the appropriate authority consents.").
On Question, amendments agreed to.
Schedule 10 [Consequential amendments relating to sites of special scientific interest]:
Baroness Byford Baroness Byford moved Amendment No. 211A:
Page 126, leave out lines 9 to 12.
The noble Baroness said: My Lords, this amendment speaks for itself. We on these Benches are asking the Government whether they wish to continue to include these three lines in the 1981 Act. In the light of our feelings on the matter, we feel that they should not be included at this stage of the Bill. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, the noble Baroness says that the amendment speaks for itself. I do not wish to delay the House, but I wonder whether she could interpret it for me. I have read through the amendment, but I am not familiar with the details of the Act to which it refers. Perhaps the noble Baroness could expand upon her explanation.
Lord McIntosh of Haringey: My Lords, perhaps I may try to do so. The amendment has the effect of
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retaining references to English legislation in the 1981 Act. This Bill applies only to England and Wales, whereas the 1981 Act also applies to Scotland. The Bill inserts into the 1981 Act a new Section 28, which will apply in England and Wales. Paragraph 1(2) of Schedule 10 merely deletes references in the original Section 28, which will be retained in Scotland, where these refer only to England and Wales, as these references will be obsolete. References to these matters have been carried forward for England and Wales in the new Sections 28 to 28Q, set out in Schedule 9 to the Bill. Therefore, what we have done is intentional.
Baroness Byford: My Lords, I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 11 [Transitional provisions and savings relating to sites of special scientific interest]:
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 212:
Page 128, line 24, at end insert ("and "stop notice" has the meaning given by paragraph 9(3) of this Schedule").
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 213 to 216 and 262A. Amendments Nos. 212 and 216 are technical amendments to Schedule 11. They set out the transitional arrangements for SSSIs and relate to procedures for service of a stop notice. Amendment No. 212 defines the term "stop notice" for the purposes of the schedule. Amendment No. 216 applies the conservation agencies' powers of entry in Section 71 of the 1981 Act so as to enable them to,
"determine whether or not to give or vary a stop notice".
The amendment also applies to Schedule 11 generally the procedures for service of notices, which already apply to Part II of the 1981 Act.
Amendments Nos. 213, 214 and 215 clarify the time limits for an owner or occupier to make representations on the statement made by the conservation agencies of views about the management of the land. The owner/occupier is notified of the date, not being less than three months, on or before which he may make representations about the proposed statement. The agency then has a further two months to consider any representations and confirm or revise its statement of views.
Amendment No. 262 clarifies the timing of commencement of the transitional provisions set out in Schedule 11; namely, that they come into force two months after Royal Assent, along with the other SSSI provisions of this Bill. I beg to move.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 213 to 216:
Page 129, line 9, leave out ("time") and insert ("date").
Page 129, line 10, leave out ("within") and insert ("on or before").
Page 129, line 13, leave out ("period of three months") and insert ("date").

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Page 133, line 16, at end insert—
("Powers of entry
21. Section 51 (powers of entry) has effect on and after the substitution date as if, in subsection (1), after paragraph (1) there were inserted—
"(m) to determine whether or not to give or vary a stop notice;".

Service of notices
22. Section 70A (service of notices) applies in relation to notices given under this Schedule as it applies in relation to notices and other documents required or authorised to be served or given under the 1981 Act.").
On Question, amendments agreed to.
[Amendment No. 217 not moved.]
Clause 72 [Limestone pavement orders: offence]:
Lord Hardy of Wath Lord Hardy of Wath moved Amendment No. 218:
Page 48, line 35, at end insert ("together with the confiscation of any vehicle which is used to assist in the committing of such an offence"").
The noble Lord said: My Lords, this Government have cause for pride in fulfilling that part of their election pledge which was to be tough on the causes of crime. Here we have a case to be tough on crime itself; indeed, it is a rather nasty crime. Some noble Lords may see a similarity between this amendment and Amendment No. 191, but they are different.
I do not seek to alter the financial penalty in the Bill but the step I propose seems a particularly appropriate one to deal with this theft. This afternoon my noble friend read a commendable Statement which envisages the building of hundreds of thousands of new homes. Those homes are needed but many of the owners of those new homes will want to build rockeries in their gardens. That constitutes a ready made market for this theft. The limestone pavements of these islands are shrinking due to that theft, which could not occur if the people carrying it out did not have a motor vehicle, probably a 4x4, in which to transport the stolen limestone.
The Government will say that they have responded to this concern as they have included in the Bill a maximum fine of £20,000 for this offence. That is a significant sum. However, if someone is charged with stealing what will appear to be £5, £10 or £20-worth of rock, no court will impose the maximum fine for that offence. If that did occur, it would be regarded with astonishment. The only way to safeguard the remaining limestone pavement is to ensure that this theft is stopped. I hope that the amendment will be speedily accepted.
I do not want to speak for too long but my next point is relevant to this Parliament. Some 20 years ago I learnt that virtually every peregrine falcon's nest—there were fewer peregrine falcons then—was being watched by thieves who intended to take the fledglings at an appropriate moment as the going rate was £600 per bird. At that time if thieves were caught with a stolen bird they were fined £2—a derisory sum.
The Royal Society for the Protection of Birds gave me a draft Bill one day. The following day I obtained sufficient signatures from all parties. The following
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Friday the Bill passed through all its stages in the other place in, I believe, 55 seconds. The Bill was then piloted through this Chamber by the late Lord Cranbrook, one of the most distinguished conservationists of the previous century. Noble Lords will be aware that his son is also a distinguished conservationist. The late Lord Cranbrook piloted the Bill through this Chamber in a similar period of time and it was enacted with astonishing speed. I believe that it set a record for a Bill to reach the statute book. I wish that we had achieved that with a few more Bills over the past few months. The Bill was enacted and the penalty for that theft was massively increased. The courts did not always impose the increased penalty but the Bill responded to a need.
The need to tackle the theft of limestone pavement is equally urgent, at least in a geological sense. Hundreds of thousands of houses need to be built in this country, preferably on brownfield sites. However, their gardens should not be filled with limestone pavement which has been stolen because society is too weak to introduce sufficient deterrents to prevent that. I beg to move.
Lord Monro of Langholm: My Lords, I support the amendment. The noble Lord will remember the long debates on Section 34 of the Wildlife and Countryside Act which for the first time introduced restrictions on the removal of limestone pavement. As the noble Lord rightly said, while one may be able to undertake fishing, shooting or poaching without a vehicle, one certainly must have a vehicle to cart away lumps of limestone pavement. To have one's car, four-wheel drive or lorry confiscated as part of the penalty for committing that theft seems to me an eminently sensible provision.
Lord Marlesford: My Lords, I too support the amendment. It obviously makes sense and would constitute a deterrent if it were accepted. Frankly, the argument which was used in relation to the noble Lord's previous amendment—namely, that the confiscation of a vehicle was associated with something that was not a criminal offence—does not apply in this case. It clearly would be a criminal offence. It would be a major deterrent on an issue which will become increasingly serious. I hope that the Government will feel that it is a penalty suitable for the crime.
11 p.m.
Baroness Byford: My Lords, we on these Benches follow the line of thought which the noble Lord, Lord Hardy, put forward so robustly. It is a great crime that so much of this valuable limestone is being taken. It is pure theft. I may be wrong but I suspect that the Government will say that the amendment is not right or acceptable. I hope that the Minister will give the amendment due thought. It would send a strong message. People are often quite happy to pay a fine. However, the amendment provides for the confiscation of any vehicle. Making the commission of such an offence more difficult has much to recommend it.

467
I support the amendment. I hope that the Minister will consider it sympathetically.
Baroness Farrington of Ribbleton: My Lords, the amendment seeks to permit the confiscation of any vehicle which is used to assist in the commission of the offence in Section 34 of the 1981 Act in relation to limestone pavements.
I am pleased to reassure my noble friend Lord Hardy of Wath and the noble Baroness, Lady Byford, that the courts already have the power under Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 to order forfeiture of property used for the purpose of committing or facilitating the commission of any offence.
Lord Hardy of Wath: My Lords, if my noble friend will allow me to intervene, I made a relevant point in the previous debate. I pointed out that I have been involved in a number of conservation Bills in which that provision has been inserted. As far as I know, it has never been applied in England. It has in Scotland, but that is irrelevant to us today.
It is essential to emphasise the point. The courts in Britain have not been using the power my noble friend describes.
Baroness Farrington of Ribbleton: My Lords, I repeat that I refer to the Powers of Criminal Courts (Sentencing) Act 2000. Therefore, I do not think that it is reasonable to make the judgment that over a long period of time the power has not been used.
Lord Hardy of Wath: My Lords, with respect, the Bills to which I referred were enacted 10, 20 and up to 24 years ago.
Baroness Farrington of Ribbleton: My Lords, I understand the point my noble friend makes. The point make to him is that there is evidence here of recent action which has been taken with regard to the penalty that he seeks. I believe that the provision addresses the objective. That, coupled with the substantial increase in the existing maximum penalty for an offence under Section 34 from £5,000 to £20,000, to which my noble friend referred, should prove a deterrent.
My noble friend makes the point that in the past legislation has been introduced with maximum penalties available and that in the past the courts, he alleges—perhaps with some justification—have not taken seriously some of the offences. He referred to offences against birds. Speaking personally and perhaps anecdotally, the courts appear to take more seriously now interference with birds and flora and fauna. I think that my noble friend's work in this field may have helped to ensure that those who make the decisions in the courts are aware of the severity of the problem.
My noble friend referred to Amendment No. 191, which relates to the new Section 34 of the Road Traffic Act 1988 found in Schedule 7 to the Bill. The key
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distinction is that Section 34 of the 1988 Act is a road traffic offence. We explained on Amendment No. 191 that the power of forfeiture is available only for certain road traffic offences—broadly those that are punishable by imprisonment. I hope that my noble friend will feel that the Government have acted as he wished and that the power is available to the courts.
Lord Hardy of Wath: My Lords, I am grateful to my noble friend. I shall not press the amendment, but I shall watch with great interest over the next 10 years to see whether there is still a significant quantity of limestone pavement left in Britain. I certainly do not wish to stay late in the Lords on a Thursday night to pursue the matter without an assurance that the Government will respond positively. I beg leave to withdraw the amendment.
Baroness Farrington of Ribbleton: My Lords, before the amendment is withdrawn, I point out to my noble friend that the noble Lord, Lord Greaves, will be watching with him in North Yorkshire. He may also find my noble friend Lord Whitty there on many occasions—although I hasten to add that they will not be travelling together.
Amendment, by leave, withdrawn.
Clause 74 [Powers of entry]:
Lord Whitty Lord Whitty moved Amendment No. 219:
Page 49, line 13, after ("28P") insert ("or under byelaws made by virtue of section 28R").
On Question, amendment agreed to.
Lord Whitty Lord Whitty moved Amendment No. 220:
Page 49, line 27, at end insert—
("() to determine any question in relation to compensation under section 20(3) of the 1949 Act as applied by section 28R of this Act;").
On Question, amendment agreed to.
Clause 75 [Enforcement of wildlife legislation]:
Lord Whitty Lord Whitty moved Amendment No. 221:
Page 50, line 31, leave out from ('amendments") to ("has") in line 32 and insert ("relating to offences and enforcement powers under Part I of the 1981 Act)").
The noble Lord said: My Lords, the amendment is consequential on Amendment No. 229, which is the substantive amendment in the group. It gives police officers new powers of arrest for certain wildlife offences. Many of us are aware of the difficulties that the police have faced when dealing with people who commit wildlife offences. I have been given examples of evidence that could be crucial to the investigation being removed before the police have had a chance to see it. That has probably led to some people being prosecuted for fewer offences and has almost certainly resulted in some people escaping prosecution. Wildlife crime can have a direct impact on populations of some of our more vulnerable species. I am concerned that the police should have adequate powers to enforce the controls on those species as effectively as possible.
The Bill already contains a package of measures to strengthen wildlife law enforcement. Amendment No. 229 makes certain wildlife offences relating to species

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of conservation concern arrestable, as an exception to the provisions of Section 24(1) of the Police and Criminal Evidence Act 1984. In those circumstances only, police officers will be able to arrest anyone whom they have reasonable grounds to suspect has committed, is committing or is about to commit such offences. The amendment has the strong support of Association of Chief Police Officers, which believes that the present law is inadequate in that respect.
Amendment No. 225, tabled by the noble Baroness, Lady Miller, would introduce new powers of arrest when evidence is spirited away. We believe that our more general amendment covers that. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, the amendment that we moved in Committee and have tabled again on Report is slightly narrower than the government amendments. It would give police officers the power of arrest to prevent the destruction of evidence that might be found at another place before the authorities could get a search warrant. Government Amendment No. 229 adequately covers what we were seeking to achieve in Committee. We welcome the fact that the Government have tabled their own amendment that covers our concerns and some other eventualities.
Baroness Byford: My Lords, I support the government amendments and thank the noble Baroness, Lady Miller, for her amendment. I agree that many people in this country are extremely worried about wildlife crime. I believe that, in the past, adequate powers either have not been in place or they have been in place but have not been used. As the noble Lord, Lord Whitty, explained, it is helpful if the police have reasonable grounds for suspecting that wildlife crime has been committed. I believe that it is an issue with which we all sympathise. We welcome the amendment.
On Question, amendment agreed to.
[Amendments Nos. 222 to 224 not moved.]
Schedule 12 [Wildlife: amendments to Part I of Wildlife and Countryside Act 1981]:
[Amendment No. 225 not moved.]
Lord Buxton of Alsa Lord Buxton of Alsa moved Amendment No. 226:
Page 136, line 44, leave out ("subsection") and insert ("subsections (2) and").
The noble Lord said: My Lords, in moving this amendment, I wish to speak also to Amendments Nos. 227 and 228. I express my regret at not having moved this amendment in Committee. On the only occasion when that arose, I had to leave the House before midnight. I also declare an interest. I have had 50 years' association with English Nature, formerly the Nature Conservancy Council for England. I have been a member on various occasions and was asked to be chairman approximately 20 years ago. I also have a successful and informal arrangement with that body on my own area of wetland on the north Norfolk coast. I mention all that because I believe that this is
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the first time in 50 years that I have disagreed with English Nature. I am glad to see that the noble Baroness, Lady Young, is here and that we shall hear her views.
First, I want to make it clear that I am not suggesting any change to the present protection of birds legislation. I am concerned solely with the threat of prison for certain offenders. Therefore, it is a humanitarian and not a wildlife amendment. I believe that it involves a great point of justice.
I believe that we are agreed on all sides in supporting prison as a punishment for genuine wildlife crime. The purpose of my amendment is to exclude from the threat of prison ordinary, honest country workers—shepherds, working farmers, keepers, gardeners and wardens—all of whom make no gain from an offence. Amendments Nos. 226 and 227 identify the items in previous Acts where wildlife crimes may occur. Amendment No. 228 goes on to exempt from prison people who live and work lawfully in the countryside and who have no serious criminal or commercial intent and make no gain.
Those citizens will still be subject to the same laws as at present and can be fined severely if appropriate. The present legislation in this respect has been entirely successful and, in my view, there is no reason to change it. There is no suggestion whatever in the amendments that prison should not be available in the case of premeditated criminal activity of the kind that has been mentioned by noble Lords this evening; that is, where birds or eggs are stolen and sold, shipped abroad or locked away. There is certainly some nasty bird and animal traffic by which individuals seek to profit. We all agree on that. The noble Baroness, chairman of English Nature, and the chairman of the RSPB told me recently that that is their main concern.
A great deal has been said about SSSIs. In considering this amendment, it is important to keep in mind that they cover only 6 per cent of the country. My amendment is concerned mainly with the other 94 per cent; that is, the great mass of the country in which wildlife, especially birds, is entirely dependent on house owners, landowners, farmers, shepherds, private gardeners, wardens and keepers. It is they who protect wildlife in the country as a whole.
The main reason for ruling out prison for country workers and all the people I mentioned is that it has been proved to be unjustified and completely unnecessary. I shall come to that point. If an offence is committed occasionally, more than adequate penalties are already available. Heavy fines are an extremely painful sentence for any worker on the land. I am not suggesting that there should be a change to that. Those people are not criminals, even if one or two out of thousands once in a while may have been foolish or intemperate. They normally have slender resources and fines really hurt.
As we all know, the focus and preoccupation of these provisions is on the protection of birds of prey. I gave details on various aspects of the subject at Second Reading. It is emphatically raptors which prompted this unfortunate proposal. I shall try to

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remember to say "raptors" because one switches from one to another for birds of prey. "Raptors" shall be my word.
To introduce prison at this stage will make the Government look completely out of date. Since the introduction of earlier legislation, including the 1981 Act in which some of us took part—I moved amendments in this House—the overall population of the raptor group has increased by about 200 per cent. It is predicted to increase to 400 per cent in the not-too-distant future. Thereafter increases could be exponential depending on the food supply.
We are therefore already at the summit of a spectacular success story, looking to even more remarkable increases. That level of increase in the number of raptors occurred just as much in the 94 per cent of the country looked after privately as in the 6 per cent looked after or fostered by wildlife organisations.
The crux of the matter is this. That success was achieved without the threat of custodial sentences. Prison, or even the hint of it as a deterrent, did not exist and it therefore made absolutely no contribution at all for more than 20 years to one of the greatest bird recoveries in history. That proves that the threat of prison is completely unnecessary. The raptor recovery occurred without it ever being contemplated.
It may have been thought that birds of prey were endangered or even diminishing in number, but it is now abundantly clear that the reverse is the case. Raptors are doing very well indeed and no species are diminishing through persecution. So it looks as though the Government have been misled by a misinterpretation of the facts.
In view of those bird population statistics, which are beyond challenge, how can it conceivably make sense or be just to threaten citizens in the countryside with prison when the objective has already been achieved beyond everybody's expectations? I fear that it will be seen as vindictive activism by government and perhaps by the conservation authorities, or as an abuse of power. That will do nothing for birds and great harm to the Government's fragile image in the country.
I feel strongly about this because we succeeded with earlier legislation and to start talking about prison implies that we failed, which is manifestly absurd. Neither am I suggesting at this stage that anything should be changed in the protection of birds legislation as it stands, only that the threat of prison should not be piled on top—clearly now without any justification at all. That would be an insult to those people who have been the main contributors to the raptors' success. That increase has not been due primarily to people at base or to wildlife managements and government advisers, but to Parliament for making the law in which some of us here were personally involved and, more importantly, to the suspension of organophosphates and other chemicals. But it is due also to houseowners, landowners, keepers, gardeners and so on, across 94 per cent of the country for observing the law and allowing raptors to increase.
Let me come to the detail. In its press campaign for this Bill there was our usual RSPB press release last month concerning 153 incidents of destruction of birds of prey. Those reports are helpful and that is of course 153 cases too many. But that must be seen in its proper context. If there were 153, it would not be one person killing 153 raptors or 153 people killing one bird each. For the sake of argument, let us say that there are 20 miscreants killing perhaps eight raptors each. They could be farmers, shepherds, keepers or whoever. There are roughly 5,000 keepers, including some wives as assistants, farm workers part-timers and helpers. That means that out of 5,000 there are possibly 4,980 keepers and assistants observing the law and doing a lawful job for conservation. That is more than 99 per cent of the total force.
Now let us turn to the damage. We must check the bird numbers and be quite clear about how significant was the damage as a result of 153 casualties. My information comes from the most up-to-date and authoritative publications, including the book by Chris Mead of the British Trust for Ornithology and the report of the Government's own raptor working group. According to those publications, there are now well in excess of 100,000 raptors in this country of about a dozen species. As I explained, most species increased substantially, some even by 300 per cent and one or two by even more.
I apologise for the details but if your Lordships are not yet nodding off, perhaps I may give the figures for birds of prey in percentages: the kite, plus 150 per cent; the marsh harrier, plus 340 per cent; the hen harrier, which is always in the argument, plus 35 per cent; the goshawk, 574 per cent, which is a serious problem because the goshawk eats other birds of prey; the sparrowhawk, plus 20 per cent, which sounds low but we are getting near saturation point in any event; the buzzard, plus 10 per cent; the eagle, plus 5 per cent; the osprey, plus 572 per cent; the peregrine, plus 104 per cent. Every single one of those figures has increased. Is it surprising that things are looking fairly rosy for raptors overall?
There are two species which have not increased. One is the kestrel, but there are 50,000 pairs. There is a small decrease which is entirely due to farming and the absence of shrews and voles and nothing whatever to do with persecution. There is the Montagu's harrier, of which noble Lords may or may not have heard, in relation to which there is no change. It is a rare bird. It was a rare bird when I was small and it will always be a rare bird, as far as I can make out. But there is no question of persecution.
I must tell your Lordships that 153 is less than one-sixth of 1 per cent of the present total population of raptors. The threat of prison enforcement, therefore, becomes more and more incomprehensible and impossible to justify. If the threat of prison was ever justified, if it had ever been considered a good idea as a deterrent, we should have introduced it in 1981 or even earlier but it was not because nobody in those days thought about enforcement, only about leadership and persuasion. There were the great giants—Julian Huxley, Peter Scott, Max Nicholson and others. They

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started a huge movement which has been enormously successful but they never thought about enforcement. And they turned out to be right. A deterrent was clearly not needed; the raptors have now multiplied beyond expectations; so prison cannot possibly be justified. The threat of prison is an insult.
My great concern is that the Government will appear, by this ill-judged measure, not to understand balance. Maintaining the balance of nature in modern circumstances, already overwhelmed by the human race, is the last hope for natural biodiversity. The balance of nature is the actual meaning and purpose of conservation. That is what all those organisations are supposed to exist for. Birds of prey have no natural enemies except, in certain cases, from other birds of prey, and are therefore bound to multiply and upset the balance. Popular songbirds have been and are being decimated, probably by numerous causes but nobody is yet sure of the answers. It could be climate, winter starvation, winter wheat, the CAP, fast traffic, domestic cats or even Chernobyl, so they say, and so on. Perhaps it is a combination of them all. But what is now certain is that while popular birds decrease the raptors will still be on the increase. When there are very few popular songbirds left, the residue will easily be mopped up by birds of prey and may then never recover.
I am embarrassed that that has not been properly addressed. What is required is a conference of everyone concerned, like the 1970 conference of which Max Nicholson was director and which was presided over by the Duke of Edinburgh. That was enormously successful and produced a sea change in knowledge generally. That would be much better than looking stupid and ignorant in due course because of being completely out of date.
The serious aspect of all this for the conservation movement is that custodial sentences are being incorporated in a Bill through misleading information or perhaps even the suppression of information. Therefore, it is based on false conclusions. Inevitably, that means that if the Government persist, nobody will ever believe the department's wildlife advisers again. They will lose all credibility. Everything that they say will be suspect and there will be a shattering reverse of everything that so many of us have striven to achieve and worked for over half a century. In discussions and in various exchanges, the Minister has been helpful to me. I do not doubt that the amendment could be improved, but I sincerely urge him and the Government, in view of the false impressions now proved, to reconsider this serious injustice. I beg to move.
Lord Hardy of Wath: My Lords, I have three comments about the amendment and the speech of the noble Lord. I am not as optimistic about the continued rise in the raptor population because, as he pointed out, if the prey population falls—in many respects I believe that it is still falling—more will die of starvation.
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However, I have some sympathy with him in regard to the matter of imprisonment. Most shoots are balanced and most keepers do not destroy protected species. If a keeper is under enormous pressure to wipe out everything that competes for the game birds, in order to secure his job he may well feel that he has to break the law. In that respect I believe it would be appropriate for the owner of a shoot to go to prison rather than his employee.
At the same time I have some sympathy. A good friend of mine and a man for whom I have a high regard is a distinguished pigeon fancier. Earlier this year I walked by his lofts with him and saw three piles of feathers close by. There was a sparrow hawk in a tree which stayed for some time and every time he let his birds out the sparrow hawk pounced. He said to me, "It is taking all my best birds and I would love to shoot it but it is protected". In any case, he is keen on conservation and he knew that the sparrow hawk was probably starving because there are few small birds left in his territory.
He did not shoot it. Fortunately a pair of magpies arrived and decided to occupy the tree and made the sparrow hawk's life miserable and it went away. Whether it will return this winter, if it has survived until now, I do not know. He is hoping that it does not, otherwise he will have no pigeons left.
I do not suggest that we should shoot all the sparrow hawks, but I would like to believe that someone will carry out some research, as the RSPB did with herons when people wanted to shoot them for emptying garden ponds. The herons had worked out various rope systems protecting ponds. It would be nice if someone could identify a humane trap in which to catch the surplus sparrow hawks before the pigeon fanciers of Britain become absolutely furious and decide that they will risk imprisonment for shooting the birds that are destroying their roosts.
Lord Monson: My Lords, the noble Lord, Lord Buxton, has put the argument so well and comprehensively and with such deep knowledge of the subject that there is little I can add. At this point I declare a potential interest in Parts II and III of the Bill, although I had absolutely no interest in Part I to which I occasionally spoke.
During the 1980s and to some extent during the early 1990s, the last Conservative administration were notorious for creating new offences for which individuals could be fined or sent to prison and for increasing the maximum penalties for existing offences. The way things are going, this new Labour Administration is rapidly following suit.
What is the justification for sending decent country people to prison for two years or even for two months for an honest mistake perhaps made in driving sleet or at dusk, especially when our prisons are full to bursting? Even if they are not full to bursting, the argument would still stand. I believe I know what the Minister will say. He will say that two years is a maximum penalty that courts will impose only in exceptional circumstances. Yes, but the reality is that

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if the possibility of imprisonment exists in statute, sooner or later it will be imposed. I hope that the Government will consider seriously this compromise amendment. It is a compromise amendment because it does not apply to premeditated offences and, if the amendment cannot be accepted tonight, perhaps some compromise can be agreed before Third Reading.
11.30 p.m.
Lord Monro of Langholm: My Lords, it is a privilege to follow my noble friend Lord Buxton of Alsa. He probably knows more about wildlife and the countryside than anyone in the House or in the United Kingdom. What he said is true and his recent article in Country Illustrated, which covered some of what he said tonight, shows that he is on the right track. We must listen to science if the necessary changes are to be made, particularly in relation to raptors.
My title is "of Langholm"—unfortunately I have no financial interest in the Langholm moor—so naturally I know a great deal about it. It is in Scotland and in sight of England. One is bitter about the fact that a scientific report on the area has been ignored by SNH and the RSPB. What many years ago was the finest moor in Scotland now has no grouse of any significance. Little is being done, six keepers have been discharged and the economy of the area has seriously suffered. That I put firmly at the door of SNH and the RSPB. It is a disgrace that a scientific report has been ignored.
I was a constituency MP in Dumfries for many years and know of the pigeon racing from the south of England, up the Pennines to the Solway area. Owners were furious about the number of pigeons which were killed by raptors while flying up the Pennines. It is serious that so little has been done to find a fair balance. No one wants a complete attack on raptors but a fair balance must be struck in order that other wildlife, whether song birds, game birds or racing pigeons, have a fair opportunity.
My noble friend Lord Buxton was right to say that we should impose a severe penalty on anyone breaking the law in this regard and that we should seriously re-examine the issue. The fines exist but we appear not to be taking action as regards breaking the law on access. There appears to be no deterrent as regards such action, but here there is a massive deterrent of imprisonment, which I believe is going too far.
Lord Renton of Mount Harry: My Lords, I support what has been said by my noble friend Lord Buxton and the noble Lord, Lord Monson. The difference between the noble Lord, Lord Hardy, and myself is that the sparrowhawk ate all the pigeons. As a result of their constant presence, my wife, who was trying to breed pigeons, gave up and took the remaining ones to London. She gave them to a friend in the hope that they might better survive in London than in Sussex because of the sparrowhawks.
It seems that for some time the campaign to protect raptors has reached an absurd proportion. The figures which my noble friend quoted show that in recent
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years the number of raptors has increased hugely at the expense of song birds. Like my noble friend Lord Monro, I, too, have shot on moors, notably in the Borders, where, thanks to the increasing number of raptors, the grouse have disappeared. There it is easy for a raptor to take the young grouse out of their nests, and that marks the end of the season for the keeper, the beaters and everyone employed on the moor.
Therefore I hope that what my noble friend said tonight will highlight the problem about raptors riot only as regards imprisonment for those who shoot a sparrowhawk or a kestrel but in the wider sense—that the protection of one species of bird has gone too far at the expense of many others.
Baroness Young of Old Scone: My Lords, I regret that I must rise to speak against these amendments. I have a considerable degree of respect for the noble Lord, Lord Buxton, and everything that he has achieved in conservation on his wetland sites in Norfolk. I am saddened by some of the observations tonight. It is absolutely vital that this Bill contains a provision for custodial sentences. I describe a circumstance where only a custodial sentence will do. There is a roaring trade in exporting peregrine eggs and chicks from this country to the Middle East which can be sold for many thousands of pounds. The people who carry out those activities, which are crimes, regard a fine as simply a tax on their profits. Therefore, they are quite willing to pay those fines serially.
Lord Buxton of Alsa: My Lords, I apologise sincerely to the noble Baroness for intervening. I remind her that I have said twice that all of that is agreed. There is no question that it is a crime to make money from the sale of these birds. I refer only to people in the country who do a different job but who, unfortunately, may get into serious trouble. Heavy fines are available. However, they do not have to leave their wives and children in tiny cottages which are at the mercy of every kind of brigand.
Baroness Young of Old Scone: My Lords, if the noble Lord allows me to continue he will hear that my thesis takes that into account. This amendment creates a loophole which allows some people—it is difficult to determine who they are—to avoid custodial sentences when they have deliberately committed crimes. I am sure that the noble Lord does not intend to signal what these amendments appear to say.
The amendments provide that an offence is not imprisonable if it is carried out in the course of lawful activity and is relevant to the pursuit of that activity. For example, if a game keeper or farmer shoots a bird of prey he will not be imprisoned, but if a bird dealer or taxidermist destroys such a bird he will be. That is a strange distinction. The shooting, poisoning and trapping of birds of prey does not happen by mistake in the course of normal game keeping or other countryside activities. It is almost uniquely a premeditated criminal activity, and a person who engages in it should not be treated differently from a person who steals eggs and birds to sell. The fact that

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this is not a universal practice but is carried out only by some people makes it even more important that keepers, farmers and other country people who behave within the law and do not destroy birds of prey are not penalised by the prospect that others who flout the law are simply subject to a fine rather than serious sentences of the kind that would be imposed on others such as taxidermists and bird dealers.
The noble Lord said that some populations of birds of prey had increased, which is true. However, some of our most magnificent birds of prey continue to be persecuted quite unnecessarily. Golden eagles are being shot. Those magnificent birds, which are comparatively few in number, should not be persecuted. In England we have only 20 pairs of hen harriers, which is hardly a rash of birds of prey on the landscape. The red kite reintroduction programme in this country costs approximately £15,000 per bird, but already over 60 of those birds have been illegally destroyed by shooting, trapping and poisoning, which is a disgrace. I believe that in today's society we should not regard the persecution and killing of these magnificent birds as anything other than a serious offence. To kill birds of prey is unnecessary and against the law, and I hope that the Minister will reject these amendments.
Lord Monson: My Lords, before the noble Baroness sits down, does she accept that in bad weather conditions—fog, mist and heavy sleet—people can make an honest mistake, perhaps not with golden eagles but smaller birds of prey?
Baroness Young of Old Scone: My Lords, with respect, the noble Lord must have met some very poor gamekeepers or farmers. My experience is that most people know very well what they are shooting. Indeed, in normal game shooting, people take great pride in knowing what they are shooting.
Lord Marlesford: My Lords, I support the amendment of my noble friend Lord Buxton. I would not presume to trade between the technical expertise of my noble friend and the noble Baroness. I found my noble friend's points convincing on the technical front.
The conservation movement is a very broad church. Having been active in the conservation movement—certainly for the past 20 years—I can claim to be a part of it. It includes—I have seen it repeatedly and in many areas—some people with very extreme ideas and some people who are quite fanatical in their ideas: one has only to mention the animal rights groups. The statements of the noble Baroness, Lady Young, do not accord with what the ordinary people of this country believe to be the seriousness of the matters to which she referred. The noble Baroness's language is disproportionate to what the people feel. There is almost an echo of the 18th century in this debate. It is rather like having a debate on sheep stealing—hanging people for sheep stealing. It is staggering.
I used to say when I was on the Countryside Commission that it is a government's job to differentiate between sensible and foolish views. One
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cannot take every view that is put forward by the conservation groups within the conservation movement. It is for the Government to come to a sensible view. The amendments suggested by my noble friend are sensible and are in close accord with what the people of this country feel. When my noble friend referred to the "fragility of the Government's support in country areas", I thought that I noticed the noble Lord, Lord McIntosh, scoffing slightly—I may be wrong—at the idea that their support was fragile. In my opinion it is very fragile. Funnily enough, paradoxically perhaps, I spend much time defending the overall record of the Government to people in the country who can no longer find words condemnatory enough to say about them. If those people could find an attractive political party, many would desert new Labour in droves. Therefore, we need better balance in this matter.
Furthermore, I was rather concerned to hear the noble Baroness, Lady Young, who in many respects I greatly respect, using language more appropriate to some of the really evil crimes in our society.
11.45 p.m.
Earl Peel: My Lords, my noble friend has raised one of the most important issues facing the countryside at the moment in terms of management. I have a great deal of sympathy for what my noble friend said and I certainly have a great deal of respect for what he says. Like other noble Lords, I know much about his provenance. He is not just someone who talks about conservation. He is an active conservationist. What he has achieved on his home patch is quite remarkable.
This is a thorny question. I accept much of what the noble Baroness, Lady Young, said. But there is something wrong with her argument. It is all very well bringing in custodial sentences and severe fines—what one might term "the stick"—but if one has no carrot to balance that stick, then it is wrong and unjust. At the moment, we have no carrot.
My noble friend Lord Monro talked about the disasters of Langholm. I have to declare an interest at this point because at that time I was chairman of the Game Conservancy Trust, which was the body that carried out the research at Langholm. It demonstrated beyond any question of doubt that hen harriers can reduce grouse populations to a point where a moor can become unviable and consequently, as my noble friend rightly said, jobs are lost and a whole management structure is removed.
There is no disagreement between any of the bodies about the science. It is purely in regard to how we go forward that there is a difference between the various organisations. To date, no consensus has been reached on how we go forward successfully and how we can produce a carrot to counteract the stick.
I do not want to say much more about this subject because it is a detailed and complex one. But I shall quote from a recent paper, Raptors and Red Grouse: Conservation Conflicts and Management Solutions, produced by four very eminent scientists—Simon Thirgood of the Game Conservancy Trust, Professor

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Peter Hudson of Stirling University, Steve Redpath of the Institute of Terrestrial Ecology and, for those who are aware of his importance in these matters, Ian New ton of the Institute of Terrestrial Ecology. Ian Newton is, without doubt, the leading expert in this country on raptors. I shall go straight to the conclusions of their paper:
"Resolving the conflict between raptors and grouse remains a major challenge. Accepting the status quo of illegal persecution of raptors, declining grouse bags, and continuing loss of heather is not a sensible option".
I cannot believe that anyone could disagree with that. The paper goes on to say that,
"immediate measures are required to reduce conflicts between raptors and grouse".
Great efforts have recently been made to try to resolve the situation. I have to say that those have very largely failed. I do not believe that either the RSPB or the conservation bodies have shown a will to overcome this problem. I urge them to do so. I urge them to strive much harder to reach a solution to deal with the immediate problem; otherwise we shall see more Langholms, more management systems destroyed, more jobs destroyed and, ultimately, more wildlife destroyed.
I make this request to the Minister. I hope very much that we can set up in England and Wales a moorland working group similar to that which operates in Scotland, which is chaired by SNH in that country, so that we can have proper dialogue between the conservation bodies—the NGOs, the statutory bodies and those with an interest in these matters. Science and research will continue. Incidentally, in response to what was said by the noble Lord, Lord Hardy of Wath, work on sparrowhawks has started, but that is another matter. New issues will appear and develop as we go along. We need this forum for proper dialogue.
I have raised the matter with the Minister's right honourable friend Mr Meacher and I should be very grateful if, before too long, I could receive an answer in letter form to that specific question.
Baroness Miller of Chilthorne Domer: My Lords, I should like to speak briefly from these Benches. I agree with noble Lords who have pointed out that, on occasion, we fall behind the event when it comes to controlling species that have become far too numerous. In the case of these amendments, which deal with Schedule 1 birds, I should point out that earlier tonight we passed an amendment on biodiversity. Having done that, it will be for a number of different authorities to deal with species that are getting out of control.
Personally, I would start this process not with Schedule 1 birds, but rather to put on a ban on magpies. Furthermore, in the case of songbirds, I would look at the effect of domestic cats on their populations. However, while I understand some of the frustrations as regards those raptors that seem to be increasing in numbers—in my area it might be the buzzard—while they remain Schedule 1 birds and thus are protected, then we should regard them as such. The
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right course would be to examine whether, if they have multiplied in such numbers as to present a threat to other species, they should continue to be included, in the schedule.
Lord Glentoran: My Lords, I rise from the Front Bench to speak in this debate not in any way as an expert, but to demonstrate my support—in case the Government Front Bench thought that it might be lacking—for my noble friends from this side and, indeed, for most of those who have spoken on all sides of the House. I think that everyone would agree that this has been an extremely enlightening debate about the problems of raptors. However, it has strayed somewhat from the basic proposition in the amendment tabled by my noble friend Lord Buxton, which concerned the question of imprisonment.
Throughout the progress of this Bill, the Minister and the Government have consistently maintained that they are in the game of balance here. They have resisted sanctions of virtually every kind over large parts of the Bill. We have accepted their arguments and their rights. I strongly believe that severe sanctions are necessary against the killing or stealing of Schedule 1 birds. However, I was perhaps a little disappointed by the passion demonstrated by noble Baroness, Lady Young, though I understand exactly her arguments.
I believe that there is room for some amendment in this part of the Bill to improve its balance. I suggest that a strong case can be made to differentiate between those to whom the noble Baroness, Lady Young, was referring; namely, those who knowingly trade in and profit from the killing of birds and the stealing and sale of the eggs or chicks of such birds. But I can tell the House that there are occasions when both gamekeepers and sportsmen have the misfortune to shoot a raptor or a protected species. It can happen in bad weather, when one is operating with a limited line of sight, or it can happen at dusk. I accept, however, that it can also happen when such shooting is undertaken wrongly and with evil intent. However, the balance of the Bill as presently drafted is wrong.
I realise that the House cannot divide on this matter. However, I shall go home tonight feeling rather sour if the Minister cannot see his way to having another look at this. I said in Committee, and I have felt throughout today, that the Bill has been going along extremely well. It is developing into a first-class piece of legislation, which is supported on all sides of the House. This issue grates; it has the wrong tone and is a little out of balance. I ask the Minister to accept that and to have a re-think.
Lord Whitty: My Lords, I do not disagree that we have had an informative and enlightening debate on many aspects of these issues, but I find the conclusions of the debate bizarre. I also find the amendments brought forward by the noble Lord, Lord Buxton, very odd. To find the noble Lord, Lord Monson, for example, supporting them is very odd indeed.
No one disagrees that much of the protection of wildlife in the countryside rests in the hands of thousands of countryside workers, the vast majority of

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whom for the vast majority of time take very seriously their responsibilities in this respect. They would not knowingly endanger a rare species or the biodiversity objectives we are trying to achieve in the Bill.
But throughout our proceedings, many of your Lordships have said that we need stronger protection of wildlife, flora and fauna within the Bill. In this schedule we have provided a substantially greater sanction—not only for raptors but for all the birds and animals in Schedule 5 and for all the plants in Schedule 8. We are therefore talking about a very wide range of possible offences against often rare wildlife—plants, animals, birds, and so on. To make an issue of the position on raptors seems an incredibly narrow approach.
Almost everyone believes that the current sanctions relating to wildlife offences are not adequate. Whether we blame the courts for not imposing the maximum penalties, the police for not pursuing them, the inadequacy of the penalties themselves, or whatever, they are not working. It must be part of a wildlife Bill to make sure that the sanctions are greater and that there is a greater deterrence for people who breach the regulations and endanger significant parts of our biodiversity.
If that is agreed, it is surely illogical to say that it matters who perpetrates an offence. What seems to be behind the noble Lord's amendments is that if a rare egg is stolen, or rare plants are torn up and so on, and that is done by a worker on an estate, then the penalty that applies to somebody who comes in from outside and does exactly the same should not apply. I cannot think of any other area of crime where the occupation of the perpetrator differentiates how they will be punished.
That is not to say that there cannot be significant mitigation put before the courts. In a sense, I am doing what the noble Lord, Lord Monson, predicted. It is already a clear defence under the Wildlife and Countryside Act that if a person can show that an act he has carried out, which might otherwise be against the law, was the incidental result of lawful activity and could not have been avoided, that is a defence and an offence will not have been committed. Even if an offence has been committed, mitigation has to be taken into account by the courts.
But we cannot exempt people from the effects of increased penalties for wildlife offences—which are vital to the preservation and enhancement of our countryside and wildlife—by dint of their occupation. It is the role of the courts and the judiciary to decide whether or not people are guilty of offences, and then to judge, in the light of all the circumstances, what are the appropriate penalties. We have upped the penalties. There may be mitigating circumstances—there often will be in the kinds of cases to which noble Lords have referred. The courts must be able to judge whether to impose the full sentence or as to what lower sentence they will apply.
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We believe that it is necessary in order to deter wildlife crime—much of which is in pursuit of profit—to impose maximum sentences. We recognise that the courts will often not impose those maximum sentences. To differentiate by motivation is a matter for the courts; but effectively to differentiate by occupation would be an incredible new precept in English law. I do not believe that we should go down that road.
Arguments about whether or not raptor populations have increased are for the conservation agencies to take into account, as the noble Baroness, Lady Miller, rightly said, and they may have to alter the schedules in terms of which species fall under which schedules. However, I cannot accept the basic premise of the amendments, even though I recognise the strength of feeling on the need to ensure that countryside workers, and estate workers in particular, do not feel threatened, and the feeling that certain matters are getting out of balance in relation to raptors, and so forth. Many of the individual points are no doubt valid. But the central point of the amendments is utterly wrong; it would be a wrong principle for us to enshrine in English law.
Midnight
Lord Buxton of Alsa: My Lords, I should like to thank noble Lords on all sides of the House who have spoken in this debate. Their views were expressed with such eloquence and wisdom that I do not want to demean them by repeating anything that has been said. I look forward to reading the debate in Hansard.
However, I am deeply disappointed with the response from both the noble Baroness, Lady Young, who is an old friend, and from the Minister, who has hitherto been much more helpful in discussion. I do not want to be on record as having had a punch-up with anyone concerned with conservation. Therefore, I shall merely say that they have completely missed the point. The main point I was making was that everything has gone right without custodial sentences. Why in the name of God do they suddenly want to ratchet up the position and introduce such a provision when it has been proved to be completely unnecessary?
I should like to leave the matter there. I feel that I cannot say anything now which is not fierce and which might be wounding. It is better to leave it as it is. I should like, therefore, to withdraw the amendment—but in the certain hope that the Minister, the Government and English Nature will consider everything that has been said on all sides of the House and that they will try to find their way to fairness. Much of what I heard from both those quarters scares the daylights out of me. God knows what would happen and where I would go if my friend became Prime Minister and that sort of attitude was adopted towards perfectly good, legitimate people. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 227 and 228 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 229:
Page 137, line 29, at end insert—
("Police and Criminal Evidence Act 1984 (c. 60)
13. In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (r) there is inserted—

"(s) an offence under section 1(1) or (2) or 6 of the Wildlife and Countryside Act 1981 (taking, possessing, selling etc. of wild birds) in respect of a bird included in Schedule 1 to that Act or any part of, or anything derived from, such a bird;

(t) an offence under any of the following provisions of the Wildlife and Countryside Act 1981—

(i) section 1(5) (disturbance of wild birds),

(ii) section 9 or 13(1)(a) or (2) (taking, possessing, selling etc. of wild animals or plants),

(iii) section 14 (introduction of new species etc.)."").

On Question, amendment agreed to.
Clause 77 [Procedure for designation orders]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 230:
Page 52, line 2, at end insert (", local owner/occupier representative bodies").
The noble Lord said: My Lords, we come to the part of the Bill that deals with areas of outstanding natural beauty. This small group of amendments deals with the confirmation of orders by the Secretary of State.
Areas of outstanding natural beauty can be created by orders brought forward by the Countryside Agency or, as appropriate, the Countryside Council for Wales. They have to be approved either by the Secretary of State or, indeed, by the National Assembly for Wales. It is a moot point whether one should have this breadth of consultation at this point or whether it should be undertaken at the earlier stage by the Countryside Agency or the Countryside Council for Wales. In that regard, these amendments are somewhat imperfect and perhaps need a little more thought.
However, I ask the Minister to consider what we are raising by way of these amendments. Areas of outstanding natural beauty occur for two reasons: first, because they are fortunate in their topography; and, secondly, because they are fortunate in the people who have custody of the land within their boundaries. I refer to farmers and landowners, by and large, but also to people who live in favourable communities and take great care of them. I know of no other reasons for the existence of AONBs.
With this little group of amendments we seek to bring within the consultation process a wider group of people to represent the communities—especially those who have an interest in the creation and maintenance of those communities—than is presently provided for in the Bill. The Bill currently provides for consultation with local councils. Our amendments would bring in the representatives of landowners and occupiers. That may, perhaps, be better covered by using words like, "other relevant organisations". Indeed, local conservation bodies will have an interest in such matters and could well be consulted at this early stage.
We are dealing with a consultative process in the creation of areas of outstanding natural beauty. I find it inconceivable that the process will not take place in
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this way. I suspect that the Minister will tell me that we are in the business of dotting "i"s and crossing "t"s once again. However, as currently worded, I do not believe that the Bill is sufficiently broad. It could be improved. I hope that the Minister will consider that point.
Amendment No. 231 would apply the same consultation process to variations in the areas of outstanding natural beauty. These are quite small, sensible and unobjectionable amendments. I hope that the Minister will consider them positively, even if he cannot agree to them tonight. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, we like the idea that parish councils should be consulted, as specified in Amendment No. 230B. However, I believe that the amendment should say "and parish councils", instead of specifying "or parish councils" as an alternative. Perhaps the noble Lord would consider including parish councils in Amendment No. 231; and, indeed, in some of the other amendments that we shall be addressing at a later stage. In some of the more sparsely populated areas, I am sure that parish councils will be particularly relevant.
Lord Whitty: My Lords, I acknowledge that these amendments are intended to require wider consultation when AONBs are being designated. As I tried to explain in Committee, the Government's proposals in this area follow the legislation relating to national parks in providing for formal consultation to take place only with the local authorities. The point here is that, in practice, the designating bodies carry out much wider consultation than is provided for in the statutory requirements. We would expect that to happen here.
In practice, if further AONBs are designated—which, of course, is far from certain—parish councils and anyone else with an interest will be able to contribute their views, which will be taken fully into account. There would almost certainly be a public inquiry to allow all views to be heard. However, I am against adding to the list of formal consultees because it would complicate the process and mean that certain others, who almost certainly would be consulted, might be omitted. We would then have the usual problems in that respect.
I recognise that the noble Lord modified his approach from the rather wider definition that was previously sought. But the current amendment proposing that,
"local owner/occupier representative bodies",
should be consulted is flawed in that it does not cover seeking the views of individuals whose views might not be represented by these "representative bodies". This demonstrates again that it is better to have wide non-statutory consultation rather than attempt to lay down precisely who should be consulted. I hope that the noble Lord will agree with that approach.
Government Amendment No. 252 is included, not entirely logically, in the group we are discussing. This is merely a tidying amendment to the interpretation

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provisions in Clause 85. It provides that the definition of "natural beauty" provided in Clause 85 applies only in relation to Part IV of the Bill. This is because, where the expression "natural beauty" appears in other parts of the Bill, separate but consistent descriptions of the meaning are already provided there. I shall move that amendment when we reach it.
Lord Dixon-Smith: My Lords, I am grateful to the noble Baroness, Lady Miller of Chilthorne Domer, for her support in principle even if we are not absolutely certain whether we have the wording right. When one is in opposition one rarely has the wording right. However, when one is in government one has the staff to put the wording right. Usually between us we manage to get somewhere.
I heard what the Minister said in response to the amendment. I cannot say that I am particularly happy with it. However, I shall consider with care what he said. I doubt whether this is an issue of sufficient significance that we shall need to return to it on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 230A to 231 not moved.]
Clause 78 [Functions of certain bodies in relation to areas of outstanding natural beauty]:
Baroness Byford Baroness Byford moved Amendment No. 232:
Page 53, line 4, leave out ("planning").
The noble Baroness said: My Lords, in moving Amendment No. 232 I wish to speak also to Amendment No. 233. We consider that the word "planning" should be deleted from subsection (4) of Clause 78. The provision in that subsection should apply to the whole of a local authority. I had assumed that that would be the case.
In Committee I said that the notices we were then discussing should be held by a local planning authority and was told firmly that that was not the responsibility of a planning authority. I query the reference to a local planning authority at this point in the Bill.
Amendment No. 233 seeks to substitute the words "a duty" for the word "power" in subsection (4) of Clause 78. We believe that "a duty" would be more appropriate. I support government Amendment No. 234 in this group. I beg to move.
Lord McIntosh of Haringey: My Lords, without seeking to curtail any debate it might help the House if I now say a few words about Amendment No. 234.
When the House considered in Committee Amendment No. 453 tabled by the noble Lord, Lord Renton of Mount Harry, I indicated that we had sympathy with that amendment and would consider bringing forward an equivalent provision on Report. Amendment No. 234 is the resulting amendment. It will require public bodies when carrying out their functions so as to affect an AONB to have regard to the purpose of conserving and enhancing the natural beauty of the AONB. As discussed in Committee and reflected in Clause 76, that purpose is the reason for
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designating AONBs. It can only be right that in carrying out their functions in or so as to affect AONBs public bodies should have regard to the purpose for which AONBs have been designated.
This clause is modelled on an equivalent provision introduced by the Environment Act 1995 which already places a similar duty on public bodies in relation to national parks and their purposes. It is appropriate that while the Government want to emphasise the importance of our AONBs and the fact that their landscapes are of equivalent quality to the national parks, we should adopt this duty which reinforces exactly that point.
I point out for purposes of clarification that the requirement to have regard to the need to conserve and enhance natural beauty in AONBs will of course constitute only one of the various statutory responsibilities placed on relevant authorities and will not override all the various other duties which public bodies and statutory undertakers operate under.
I shall respond to the amendments to the amendment and to the amendments in the name of the noble Baroness, Lady Byford, at the end of the debate but I thought it helpful to state this first.
12.15 a.m.
Lord Renton of Mount Harry: My Lords, I thank the Minister for following up the promise he made to me in Committee. Amendment No. 234 provides that the public authorities concerned,
"shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty".
Having moved to areas of outstanding natural beauty, perhaps it is appropriate for me again to declare an interest to the House as chairman of the Sussex Downs Conservation Board, which is entirely within an area of outstanding natural beauty, and as a member of the executive committee of the Association of AONBs.
I am pleased that the Minister has brought forward this clause. It reflects existing legislation regarding national parks. It will help to ensure that areas of natural beauty enjoy the weight and recognition appropriate to their national importance. I cite those words from the briefing from the Council for the Protection of Rural England on the amendment. I do not always agree with the CPRE but on this occasion I strongly agree with it. With this clause in the Bill it will be easier for AONB authorities to enter into a constructive dialogue with a wide range of national bodies and statutory undertakers. I anticipate that the noble Lord, Lord Bridges, for example, will say that the words "have regard" should be substituted by the word "duty". In a sense I, too, prefer that. But I accept that the traditional wording in relation to national parks has been used. I am sure that it will reinforce the status of AONBs in a way that is thoroughly desirable. I welcome the amendment.
Lord Bridges: My Lords, it may be for the convenience of the House if I address my amendment, Amendment No. 234ZA. The noble Lord, Lord Judd,

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has put his name to the amendment. He asks me to say that he strongly supports it and greatly regrets that he is unable to be here to speak in its favour.
I fully share what I believe to be the Government's intention to make this clause more effective and clear as regards protection of AONBs. I believe that it is not as effective as it should be and in its present form is seriously defective. As the Minister recalled, the Government announced at an earlier stage—I think during t he passage of the Bill through another place—their intention to move an amendment in this House to improve the environmental protection of AONBs so as to give them a status similar to that of national parks. In its present form the amendment will not achieve its purpose for the following reasons.
As the noble Lord, Lord McIntosh, reminded us, subsection (1) of the Government's new clause is based on the legislation already in place in the Environment Act 1995 regarding national parks, with the words "national parks" removed and the word "AONB" inserted. This will not produce the required result since the national parks are their own planning authority. I refer to the recent Windermere case. All the statute need do in that regard is to recall to the national park authority the priority given on the statute to their environmental protection.
But that is not the case with the AONBs. It is the local planning authority which decides planning issues in the AONBs and the words in the Government's new clause do not bind the local planning authority. The latter is simply told to "have regard" to the purpose of the AONBs. As I shall explain in a moment, it may not regard that as a matter of priority.
Next there is a conflict between the side note in the Government's text, General duty of public bodies, and the wording of the clause itself. I take it that it was the Government's intention to create a public duty but those key words are omitted from the clause. I am advised by the Officers of the House that a side note has no legal effect. It is merely a guide to the reader of the statute. The amendment would transfer the words from the side note into the text of the new clause, rendering it more effective and apposite.
I wrote to the noble Lord, Lord Whitty, on 2nd November to inform him of my intention to table the amendment. He kindly replied in a letter dated 14th November, which was forwarded to me by fax and received here this afternoon. He writes that he cannot accept my formulation because,
"the general duty to conserve and enhance",
AONBs belongs to many government bodies and cannot be addressed to local planning authorities alone. I used the phrase "general duty" because it appears in the side note to the Minister's amendment. If he can suggest another form of words that improves on "have regard to" but goes less far than a "general duty", I shall gladly consider it. The words "have regard to" on their own are inadequate.
The Government's new clause appears, to me at least, to be in conflict with their policy planning guidance on AONBs, which rules out any major commercial development unless it meets two tests:
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national need and the absence of any alternative site. If the Government's new clause becomes law in its present form, it will be seen by some, myself included, as weakening the current position, as defined in the policy planning guidance. That would lead to confusion and would be very undesirable.
Some noble Lords, such as the noble Lord, Lord Renton of Mount Harry, who has just spoken and whose opinion I greatly respect, feel that the amendment goes too far. I accept that planning authorities come in various sizes, political hues and attitudes. Many of them may be zealous in defence of their AONBs, but not all of them are. I shall illustrate that with a current important example that has guided my approach to the issue.
At the boundary of the Suffolk coast and heaths AONB and inside its south-western frontier is an archaeological site of national importance at. Sutton Hoo. A substantial local farmer who works the fields nearby wants to build a new washing, cleaning and packaging plant for his vegetable crops, at whose cultivation he is highly proficient. He bought a small redundant military site nearby, previously used by the Royal Air Force for a ground approach radar, and made a planning application for a large new structure on it close to Sutton Hoo. The planning officers supported him. Indeed, they had suggested the site to him in the first place and commented favourably on it when it came before the planning committee. The elected councillors rejected the proposal, having been duly warned of its policy implications by the local inhabitants. Their decision is now being appealed by the applicant, whose formal grounds for appeal clearly show the support that he was given by officials in the local planning authority.
I do not expect the Minister to comment on the case and it would be improper of me to suggest that he might, but it is a serious current example of how the new clause might be interpreted by some local planning authorities, which might claim that, as well as having regard to the purposes of AONBs, they also had regard to their own priorities, including the misery of the local agricultural population and the need to provide further opportunities for an effective farmer. That is why the Government's test is dangerously weak and why I prefer my version. The Council for the Protection of Rural England, to which I have spoken recently and of whose Suffolk branch my wife and I are active members, believes my amendment to be an improvement.
It would have been better if the new clause had been before us in Committee, but it was not available then. I do not pretend that my version is the last word on the subject. No doubt expert draftsmen could produce a more refined text. If the Minister is prepared to consider my points, I shall be content to withdraw the amendment.
However, there is a significant issue here and I intend to pursue it further. I emphasise that in this context the phrase "have regard to" is too permissive. We want a form of words which calls on the local planning authority to give proper priority to the needs

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of the AONB, which this text does not do. This is a very important clause. I hope that the Government will be able to reflect again on what I have said.
Lord Marlesford: My Lords, I rise to support the noble Lord, Lord Bridges, in what he seeks to do. I certainly consider that the addition of the section on AONBs is every bit as important for the purpose of this legislation as the whole of the access section. I believe that it represents a major improvement to a Bill which, in general, I have always supported.
The AONBs owe much to my noble friend Lord Renton of Mount Harry, who gave this matter a dry run a year or so ago. I believe that government Amendment No. 234 is good so far as it goes, but it does not go far enough. I understand that the wording suggested by the noble Lord, Lord Bridges, is not quite acceptable to the Government. Amendment No. 234 states:
"In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall".
I suggest that we simply add the words, "seek to conserve and enhance". That does not mean that an authority will necessarily succeed. It does not mean that that will be the most dominant of its policies; but that it should, when it can, seek to conserve and enhance the beauty of the AONBs. The Government should return at Third Reading with slightly better wording for that amendment which, in itself, is an important addition to the Bill.
Lord Glentoran: My Lords, I have been asked by my noble friend Lord Roberts of Conwy to speak briefly to Amendment No. 234ZB, if that is in order. Briefly, he says that Amendment No. 234 requires statutory undertakers, when exercising any functions in relation to land in an AONB, to have regard to conserving and enhancing its natural beauty.
Particular concern has been expressed by holders of electricity licences under the Electricity Act 1989 over the use of the word "enhance". It implies a positive obligation on licence holders to improve the appearance of an area. In many cases, that is likely to result in claims that the licence holders should remove electric lines or plants which are in AONBs or place such lines and equipment underground. My noble friend goes on at some length to detail his views. However, I believe that the Minister has an understanding of them.
Lord McIntosh of Haringey: My Lords, I am grateful to noble Lords for explaining the amendments to my Amendment No. 234. I start with Amendment No. 234ZA. Our amendment requires relevant authorities, in exercising or performing their functions, to have regard to the need to conserve and enhance the natural beauty of AONBs. The side note, as the noble Lord, Lord Bridges, recognises, is not part of the Bill. However, it is intended to mean "a duty to have regard to". That is exactly what it means. It does not place a particular management demand on those
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bodies. It is intended to ensure that, in taking decisions or carrying out work which affects AONBs, public bodies and statutory undertakers should have regard to the fact that Parliament has provided for those areas to be designated for the conservation and enhancement of their natural beauty.
It would be unacceptable to do what Amendment No. 234ZA seeks to do by turning the duty to have regard into a general duty on relevant authorities to conserve and enhance the natural beauty of AONBs. While all Ministers of the Crown, public bodies and statutory undertakers should "have regard to" the reasons for which AONBs have been designated, they cannot all be made responsible for their active management, which is what Amendment No. 234ZA appears to propose. Those bodies all have their own existing statutory responsibilities, and they have a wide variety of degrees of influence or control over AONBs. Of course, they should have regard to the need to conserve and enhance natural beauty, but it would not be justified to give them a general duty to do so. I hope that the noble Lord, Lord Bridges, will not pursue the matter.
Amendment No. 234ZB draws attention to the legitimate concerns of statutory undertakers. We believe that we have got it right in requiring the relevant authorities, which include statutory undertakers, to have regard to conserving and enhancing natural beauty. But our amendment does not go further and require them to take particular action to do so. I have heard the concerns which come from electricity companies and they are quite legitimate. The companies are subject to various duties, including the efficient co-ordination and economic supply of power.
Government Amendment No. 234 will have the same application to electricity companies acting as statutory undertakers as it will to all the other bodies to which it will apply. That is to say, in exercising or performing their functions the bodies must have regard to the question of conserving and enhancing natural beauty.
12.30 a.m.
Lord Marlesford: My Lords, is the Minister aware that for many years now Eastern Electricity has had a programme to put wires, not of the highest voltage, underground in designated areas including national parks, conservation areas and AONBs? The sad thing is that other electricity companies have been much less enlightened and have not yet followed suit. So rather than pandering to them, would not the Minister prefer to encourage those companies to follow the example of Eastern Electricity?
Lord McIntosh of Haringey: My Lords, I would encourage any statutory undertaker to follow that example. I was very much in favour of a proposal for the Millennium Commission to spend all its money in putting cables underground. That would have made an irreversible change in favour of the natural beauty of this country. However, I am told that that would cost £100 billion, despite the substantial sums

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available to the Millennium Commission. We would like to see more cables put underground but we do not believe that it is appropriate to do that by legislation in this way.
Despite what the noble Lord, Lord Marlesford, said, our amendment does not mean—I say this to console the noble Lord, Lord Roberts, in his absence—that electricity companies will be required to place their lines underground in AONBs.
I believe I heard a general welcome for Amendment No. 234, but I believe that we have got the balance right. As regards Amendments Nos. 232 and 233, I am a little surprised to see them because they would place a duty on local authorities to take such action as appears to be expedient for the accomplishment of the purpose of conserving and enhancing natural beauty. In Committee I explained that what is now Clause 78(4) is merely a re-enactment of the provision which we have had for more than 50 years in the National Parks and Access to the Countryside Act 1949. In Committee the Opposition Front Bench wanted to remove that power altogether. Now they want to turn it from a power to a duty. That is a 180 degree U-turn.
Baroness Byford: My Lords, I am grateful to the noble Lord for giving way. I believe that during the early stages we were concerned that there would not be enough funding for some of the things that the Government hoped to do. As the Committee stage continued it became clear that that would be so. Therefore, it is better that there is someone who looks and listens. We just wish to make sure that the boards have enough strength. That is why we tabled these two amendments. I believe that the noble Lord is pulling my leg slightly.
Lord McIntosh of Haringey: My Lords, I am, of course. I entirely accept and appreciate what the noble Baroness said. What is clear is that we are moving closer together. Let us compromise on the Government's attitude, which is a consolidation position. It applies what has applied to national parks for over 50 years.
Lord Bridges: My Lords, perhaps I may say a few words before we conclude this business in reply to what the Minister said about my amendment. I believe that he has misunderstood what I was trying to do. I noticed that he used a phrase which I saw in the letter to me from the noble Lord, Lord Whitty, accusing me of saying that I was seeking to make all the public authorities responsible for active management. That is simply not the case. I am looking for a way in which we can have an effective partnership between central government and the local authorities, which the present text of the Bill does not provide. Therefore, I hope we shall hear more about this at the next stage of the Bill.
Baroness Byford: My Lords, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
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[Amendment No. 233 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 234:
After Clause 78, insert the following new clause—

Service of notices

  GENERAL DUTY OF PUBLIC BODIES ETC
  (" .—(1) In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty.
  (2) The following are relevant authorities for the purposes of this section—

  (a) any Minister of the Crown,

  (b) any public body,

  (c) any statutory undertaker,

  (d) any person holding public office.

  (3) In subsection (2)—
  "public body" includes—

  (a) a county council, county borough council, district council, parish council or community council;

  (b) a joint planning board within the meaning of section 2 of the Town and Country Planning Act 1990;

  (c) a joint committee appointed under section 102(1)(b) of the Local Government Act 1972;

  "public office" means—

  (a) an office under Her Majesty;

  (b) an office created or continued in existence by a public general Act; or

  (c) an office the remuneration in respect of which is paid out of money provided by Parliament.").

  The noble Lord said: My Lords, I beg to move.
  [Amendments Nos. 234ZA and 234ZB, as amendments to Amendment No. 234, not moved.]
  On Question, Amendment No. 234 agreed to.
  Clause 79 [Establishment of conservation boards]:
  [Amendment No. 234A had been withdrawn from the Marshalled List.]
  Earl Peel Earl Peel moved Amendment No. 234B:
  Page 53, line 30, at end insert—
  ("() No order shall be made under this section in relation to an area of outstanding natural beauty unless a majority of the local authorities whose areas consist of or include the whole or part of that area of outstanding natural beauty consent to the establishment of a conservation board.").
  The noble Earl said: My Lords, Clause 79(6) provides for local authorities in AONBs to be consulted about proposals to establish conservation boards. Local authorities in this context means a principal council within the meaning of the Local Government Act 1972. I understand that to mean a county council, district council or unitary authority.
  As the Bill stands, there is no provision requiring any of the principal councils to agree to the establishment of a conservation board. Theoretically, therefore, the Bill could allow the Secretary of State or National Assembly of Wales to establish a board where every single authority involved was actually opposed to the idea.
  Of course, I realise that it is most unlikely that the Government would establish a board in such circumstances but they could do so, and that is the point. My amendment seeks to avoid that. I have received representations from local councillors in my part of the world who are in an AONB and therefore could have a conservation board imposed upon them. Their views on this matter are very strong indeed. They believe that there should be proper local consultation.
  My amendment simply seeks to require that a majority of the local authorities concerned in any area—and there could be many in some AONBs because they traverse county and district boundaries—would have to agree to the establishment of a board following consultation before the Secretary of State or National Assembly for Wales could proceed.
  There are similar amendments to mine. One is in the names of my noble friends Lady Byford, Lord Glentoran and Lord Dixon-Smith which would require the consensus of all local authorities within the AONB, which I believe is rather an extreme way of dealing with the consultation process. Another amendment, tabled by my noble friend Lord Renton of Mount Harry, requires a broad measure of agreement. With respect to my noble friend, I regard that as perhaps being rather woolly.
  My amendment would require a clear majority of authorities to be in agreement before a board could be established. That is clear and unequivocal. It avoids the possibility of one authority vetoing a proposal supported by the others. Equally, it avoids the prospect of the Government proceeding where the authorities involved are very half-hearted about the idea.
  Furthermore, I was interested to see in the circular letter sent to many noble Lords by the chairman of the Countryside Agency, Mr Cameron, that,
  "Conservation Boards will not be imposed on AONBs. We want every AONB to have the management system which best meets its local circumstances and needs".
  The letter goes on:
  "But the new legislation as drafted is needed to make the Conservation Board model available",
  which is fine,
  "when it makes practical sense, and where it is locally supported".
  I suggest that my amendment exactly meets that criterion because it prevents conservation boards being imposed against the wishes of the majority of the local authorities within that area. I was also interested to see a letter circulated by the Local Government Association, which made the same point. It said:
  "The establishment of the Conservation Boards must be with local and national agreement".
  Again, I suggest that my amendment meets this specific proposal. So I hope that the Government will look favourably on what I may describe as the third way. I believe that it would satisfy the requirements of local authorities, that we would get a consensus view
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  and that this whole contentious matter of conservation boards would go forward in a manner acceptable to local democracy. I beg to move.
  Lord Dixon-Smith: My Lords, the noble Earl, Lord Peel, has picked up much of what I would have said on Amendments Nos. 236A and 237A, which are grouped with his amendment. Those two amendments require the agreement of all authorities. The establishment of a management board for an area of outstanding natural beauty will be a serious matter. If there is any degree of opposition to the establishment of the management board, particularly from participating local authorities that must have participated in an existing joint board, it is highly unlikely that it will work well. In some ways the wording of the amendment in the name of my noble friend is more felicitous than the wording in Amendments Nos. 236A and 237A. The fact is that if there is not agreement to the establishment of such boards, the likelihood of their succeeding is pretty remote.
  Bearing in mind that in the vast majority of cases the AONBs are in existence and working happily and well with joint boards running them, it would be dangerous to go from that situation to one in which there was an imposed management board with a considerable degree of dissent in the area. I do not believe that that would be advantageous for anyone concerned, either nationally or locally. I ask the Minister to consider the position seriously. He may not want to decide tonight, but if not perhaps he can come up with something better at Third Reading.
  Lord Renton of Mount Harry: My Lords, I want to speak to my Amendment No. 238A. It states that,
  "Before making an order to establish a conservation board",
  the Secretary of State with respect to England or the National Assembly for Wales,
  "shall be satisfied that there is a broad measure of agreement among those consulted locally that a conservation board should be established".
  The history of my amendment goes back to my Private Member's Bill of a year ago, when in the course of debating it I remember my noble friend Lord Jopling pointing out that in my original Bill there was no mention of a "broad measure of agreement" to a conservation board being established. In consequence, I put it in at Committee stage. That was before the amendment of my noble friend Lord Peel was tabled. He referred to my amendment as being "rather woolly". I would not agree with that description, but I am not in the business of having a competition with him on such an issue.
  If the Minister were to agree to my noble friend's amendment, I would gladly withdraw mine. The point that is common between us, as my noble friend Lord Dixon-Smith said, is that the conservation board should not be established unless there is a broad measure of agreement from a majority of those consulted that it should be established.

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  I fully agree with my noble friend that if the imposition of a conservation board were attempted by a Secretary of State against the wishes of most of those he consulted, it would be a great mistake. Clause 79 leaves open the possibility that a future Secretary of State may impose a conservation board against the wishes of the majority of local interests, including the local authorities concerned.
  It is precisely to ensure that such an unlikely but none the less possible scenario does not happen that I tabled my amendment. It does not undermine the powers to create a conservation board as I am not suggesting that acceptance by all local authorities is sought. I suggest that the Minister will lose nothing by accepting either my amendment or that of my noble friend Lord Peel. In either case, reassurance would be given to the sceptics that conservation boards would not be established unless there were agreement from the majority of those consulted. That might be a good thing.
  12.45 a.m.
  The Earl of Arran: My Lords, without wanting to be an adjudicator on variations on the theme, I come down strongly on the side of my noble friend Lord Peel. I believe that his amendment has the necessary strength, clarity and purpose. In my part of the world, Devon, the local councillors have expressed considerable concern that the Secretary of State has the power to impose local conservation boards against the wishes of local authorities within the AONBs. I hope that the Minister will understand the merit and good sense of my noble friend's amendment.
  Baroness Miller of Chilthorne Domer: My Lords, we on these Benches would take a different view and would prefer the amendment tabled by the noble Lord, Lord Renton of Mount Harry, which is consensual. The difficulty with the amendment tabled by the noble Earl, Lord Peel, is that if there were only two local authorities, which is the case for some AONBs, it would be impossible to produce a majority if one agreed and one disagreed.
  Furthermore, for the purposes of the conservation board too much emphasis is laid on the local authority and not enough on other interests. The concept that conservation boards will be over local authorities is wrong. It is a completely different relationship and in many cases they are fulfilling functions which are not among the primary purposes of the local authorities. I believe that the amendment tabled by the noble Lord, Lord Renton, would fulfil the kind of agreement which should rightly be sought locally. For that reason we support it.
  Lord Marlesford: My Lords, I prefer the amendment tabled by my noble friend Lord Peel. It is important to have conservation boards. To some extent, it is a matter of persuasion. I well remember the previous government setting up the Broads authority many years ago. I was a member of the Countryside Commission and was sent to Norfolk and parts of Suffolk to help to persuade the local authorities to
  496
  agree to the proposal. However, the Government's intention was to legislate to set up a Broads authority. We succeeded in getting it set up with consent and it has been a considerable success.
  The South Downs Conservation Board of my noble friend Lord Renton, is a separate animal which he inherited from the noble Lord, Lord Nathan. I understand that the local authorities, which have representatives on the board, are keen on it and supportive of it. Therefore, we need more to persuade local authorities to accept the boards than at present.
  There is a difficulty as to the exact wording. I would have been quite happy with the amendment moved by my noble friend Lord Peel. The noble Baroness said that there might be two local authorities only one of which agreed. My understanding is that that would still pass the test according to my noble friend's amendment, because the majority must agree. There must be better consultation than is presently provided for, but it must not be such as to enable people to sabotage the setting up of the board.
  Lord McIntosh of Haringey: My Lords, we agree with all those who have spoken about the objectives and shall try to find the right way to achieve them. We agree with the noble Lord, Lord Marlesford, that conservation boards are good. We also agree with Ewen Cameron of the Countryside Agency and the Local Government Association that boards should not be foisted on AONBs when they are not wanted. We expect the first moves towards the creation of conservation boards to be initiated locally. Our proposals require consultation with all affected local authorities before an order is produced to establish a conservation board. We shall take into account very seriously the views of local authorities, and the Secretary of State is bound to take reasonable decisions in the light of the consultations.
  Of the options that have been offered, we tend towards that of the noble Earl, Lord Peel. The approach based on a broad measure of agreement proposed by the noble Lord, Lord Renton, is similar to the way that the Conservative Party used to choose its leaders. That did not work very well. We believe that the all or nothing solution of the Conservative Front Bench goes too far. One may have a perfectly successful conservation board even if one local authority chooses not to take part in it. Although the exact wording of the noble Earl's amendment may not work in the circumstances to which the noble Baroness, Lady Miller, referred, his amendment based on the majority view appears to be the closest. We shall look closely at tabling an amendment at Third Reading which produces the intended effect of Amendment No. 234B.
  Lord Dixon-Smith: My Lords, before the Minister sits down, perhaps he will clarify one important matter. I believe it is inconceivable that a conservation

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  board can be created if one of the local authorities is so determined not to have it that it refuses to participate. Perhaps I have misunderstood the situation.
  Lord McIntosh of Haringey: My Lords, I do not believe that that is so. It is unlikely that there will be an AONB which involves only two local authorities.
  Earl Peel: My Lords, I am extremely grateful to the Minister for having taken such a rational view of this broad debate. I look forward with interest to how the Government deal with the matter at the next stage. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 235:
  Page 53, line 41, at end insert—
  ("(3A) Subsection (3) does not apply to functions of a local authority under Part II, III, VII or XIII of the Town and Country Planning Act 1990.").
  The noble Lord said: My Lords, I explained in Committee that it was not the intention of the Government that conservation boards should be able to be made local planning authorities. A number of noble Lords wanted that to be made clear on the face of the Bill. Amendment No. 235 achieves that by specifically ruling out the transfer or sharing of development plan and development control functions with conservation boards. Those functions will in all cases remain with the appropriate local authorities. I shall respond to Amendment No. 235A when it has been spoken to. I beg to move.
  Lord Dixon-Smith Lord Dixon-Smith moved, as an amendment to Amendment No. 235, Amendment No. 235A:
  Line 3, after ("VII") insert (", IX").
  The noble Lord said: My Lords, I rise to move Amendment No. 235A and to speak to Amendments Nos. 244 and 245. I welcome Amendment No. 235. We were very concerned in Committee that, as originally drafted, the Bill would permit the considerable transfer of planning powers to a conservation board. The Government's amendment answers that concern. I am grateful to the Government for the manner in which they have responded to what was said on this issue in Committee.
  The Minister may think that I am a completely unreasonable person and will now start carping, but it is always as well to look with care at what has been done. Part II of the Bill deals with development plans; Part III deals with control over development; and Part VII deals with enforcement. Those are the planning powers that would cause serious concern had it been possible to transfer them to AONBs.
  I find Part VIII interesting. I should like to ask the Minister whether he feels that part should be barred for transfer. Part VIII is concerned with special controls. It deals specifically with trees: planting, tree preservation orders, compensation—
  Lord McIntosh of Haringey: My Lords, Part VIII is not in the amendment.
  Lord Dixon-Smith: My Lords, I apologise. I have Part VIII down as included on my list.
  I welcome the amendments. We have tabled other amendments in the group. One is to remove Part IX because that deals with compulsory purchase. There are two other small amendments. One deals with compulsory purchase of land. The other deals with power to borrow money. There is a feeling, at the very least, that if conservation boards have powers to purchase land, they could cause vexation and antagonism locally.
  In any event, they need to raise monies if they are to purchase land. At the moment they have no certain sources of funding. They are not in the position of a local authority which has solid backing and sound financial ratings. These would be new bodies with—at best—a somewhat hesitant revenue stream, either from their participating local authority or from the Government. That would not provide a sound basis for borrowing. We have tabled two amendments to restrict both the power to borrow and the power to purchase land, which we believe are appropriate for this kind of body. Those are the amendments grouped with Amendment No. 235. They are important amendments which adjust the Bill in a small but significant way.
  Baroness Miller of Chilthorne Domer: My Lords, can the Minister confirm that as the conservation boards will be statutory consultees, and their management plans will carry weight in the development plans, members of the conservation board will have the same rules and conventions on declarations of interest applied to them as apply to other councillors in a similar position, such as parish councillors?
  Lord McIntosh of Haringey: My Lords, the answer to the noble Baroness is yes. We shall come on to the question of membership in the next group of amendments.
  Perhaps I may respond to Amendment No. 235A first. That would rule out all applications of Part IX of the Town & Country Planning Act. Part IX covers powers to acquire land by compulsory purchase. But it also covers powers to acquire land by agreement when the land is suitable for and required to carry out development, redevelopment or improvement. That is quite a wide exclusion. I would not like to rule out all these possibilities now. I would prefer to look at the matter in the establishment order for each conservation board to see what powers actually are appropriate. To take out Part IX now would be a mistake.

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  Amendment No. 244 seeks to prevent a conservation board being given powers of compulsory purchase. It is not our intention that conservation boards should be given powers of compulsory purchase. We have proposed in Schedule 14 the powers we consider conservation boards may need to acquire and dispose of land, and those are powers to purchase by agreement. Even those powers are likely to be used sparingly because we do not expect conservation boards to become major landholders. National park authorities are not. I do not believe that conservation boards need to be given compulsory purchase powers.
  I do not think that it would be helpful to extend in the Bill the list of functions which cannot be transferred to conservation boards. I have brought forward an amendment excluding the transfer of the main planning powers because there was clearly a measure of concern about that issue in Committee, even though I explained that we did not intend those functions to be transferred. I do not want to add to that. I should like to remind the House that the power this legislation will give to transfer functions is actually quite limited. It applies only to functions which are needed to achieve the purposes or exercise the functions of a conservation board.
  I turn to Amendment No. 245. Clause 80(5) of the Bill provides that the general power of a conservation board given by Clause 80(4) to do anything calculated to facilitate or conducive or incidental to accomplishing its purposes or carrying out its functions does not of itself provide a power to raise money. Conservation boards will clearly need to raise money somehow in order to be able to discharge their functions. Clause 84 allows the Secretary of State to make grants to them. The Countryside Agency will also be able to make grants, and between these two routes there is the ability to fund boards to the level affordable by central government. Conservation boards will be able to augment this income from other sources, including voluntary support from the local authorities involved in the boards. But the boards will not have levying powers. There would have to be a specific provision to do so and we have not included one in the Bill. Boards could be granted borrowing powers if that were allowed by the establishment order. There is provision, of course, for them to make charges for services. Clause 80(5)(b) is a correctly drafted provision, which incidentally is identical to Section 65(6)(b) of the Environment Act 1995 as it applies to national park authorities. To remove the words, as suggested in the amendment, might lead to doubts that conservation boards would be able to raise money at all. I hope that the amendment will not be pressed.
  Baroness Miller of Chilthorne Domer: My Lords, before the Minister sits down, can he confirm that all those methods of raising funding will equally apply to AONBs which remain with a joint advisory committee? We are concerned that there should not be a two-tier system of AONBs and that those which choose not to have conservation boards will not be financially disadvantaged.
  1 a.m
  Lord McIntosh of Haringey: My Lords, government grants and Countryside Agency grants would apply to AONBs which were not conservation boards. Voluntary grants from local authorities would still be a matter for them. But it would be possible For the boards to receive grants.
  Lord Dixon-Smith: My Lords, I listened with interest to what the Minister said. He has been very helpful in his response. I beg leave to withdraw the amendment.
  Amendment No. 235A, as an amendment to Amendment No. 235, by leave, withdrawn.
  On Question, Amendment No. 235 agreed to.
  [Amendment No. 236 had been withdrawn from the Marshalled List.]
  [Amendment No. 236A not moved.]
  [Amendment No. 237 had been withdrawn from the Marshalled List.]
  [Amendment No. 237A not moved.]
  [Amendment No. 238 had been renumbered as Amendment No. 234A.]
  Lord Renton of Mount Harry Lord Renton of Mount Harry had given notice of his intention to move Amendment No. 238A:
  After Clause 79, insert the following new clause—

  ESTABLISHMENT OF CONSERVATION BOARDS: CONSENSUS OF AGREEMENT
  (" . Before making an order to establish a conservation board, the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) shall be satisfied that there is a broad measure of agreement among those consulted locally that a conservation board should be established.").
  The noble Lord said: My Lords, in saying that I shall not be moving this amendment, perhaps I may at the same time congratulate my noble friend Lord Peel on having Amendment No. 234B accepted in principle by the Government.
  [Amendment No. 238A not moved.]
  Lord Renton of Mount Harry Lord Renton of Mount Harry moved Amendment No. 238B:
  After Clause 79, insert the following new clause—

  COMPOSITION OF CONSERVATION BOARDS
  (" .—(1) A conservation board shall consist of not more than 24 members of whom—

  (a) not less than three-quarters shall be appointed by local authorities and parish councils in the proportion of two members from the local authorities for every one member from the parish councils; and

  (b) the balance of not more than one-quarter shall be appointed by the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) from organisations whose interests and objectives are relevant to the conservation board.

  (2) In the event of a failure by local authorities and parish councils to agree appointments under subsection (1)(a) above, the matter should be referred to the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) for arbitration and decision.
  (3) A conservation board shall, after local consultation, decide whether to form an advisory council, and if such a council is formed, shall appoint members to it who shall be drawn from local organisations concerned with the objectives of the conservation board.").
  The noble Lord said: My Lords, this amendment deals with the composition of conservation boards. I believe that on this occasion I must have got it right because my noble friend Lord Peel has added his name to my amendment. That is bound to mean that it will now enjoy wholesale acceptance from all sides of the House, including the Government Front Bench.
  The purpose of my amendment is to suggest that a conservation board should not consist of more than 24 members, of whom not less than three-quarters—that is, a maximum of 18—would be appointed by local authorities and parish councils, thus in the proportion of two members from local authorities to every one member from parish councils. The balance, comprising not more than one-quarter—that is, a maximum of six—would be appointed by the Secretary of State in respect of England or the National Assembly for Wales in respect of Wales.
  The point about the size is extremely relevant. I am well aware that, for example, the Council of the University of Sussex, on which I happen to serve and which is the governing body of the University of Sussex, is under pressure from the Higher Education Funding Council. The council is thus in the process of reducing its numbers. I believe that many other universities are in exactly the same position. It has been suggested that for a university to function properly, the executive body of its council should not comprise more than around 25 members.
  I believe that exactly the same principle could apply to the new conservation boards, as and when they are established. The conservation board which I now chair has a membership of 36. If the same composition of membership were to continue at the same time as we absorb the East Hampshire joint advisory committee and become, in due course, the South Downs national park, I am told that the board membership would comprise a figure in the mid-forties. For a board to function properly, it should be kept as small as is practicable. I suggest that a maximum of 24 would be about as small as is practicable.
  When he replies, the Minister may well say that this should be dealt with in the order establishing a particular conservation board rather than be added to the primary legislation. I think that is wrong, because if it is put into primary legislation it will remove the temptation that will certainly exist, as individual conservation boards are created, to allow them to be formed at a size that will prove unmanageable in practice. However, it will be politically expedient at the time of the creation of the board. That is because it is a great deal easier to say "yes" to increasing numbers when a board is becoming formed than it is to say "no". For example, a local authority or county council may wish to put up three members rather than one. It is easier to give in to such requests. For that reason, I believe that to include a definition of maximum size in primary legislation—a size that would be as small as is practicable—makes good sense.
  The division between local authority and parish council members is a matter that has concerned many people, not least when the national parks came into being. I have therefore suggested that, when taking my maximum figure of 24, there would be 18 members, of whom 12 would come from the local authorities, six from the parish councils and the remaining six appointed by the Secretary of State to represent those organisations whose interests and objectives are relevant to conservation boards. At that point, the Secretary of State could bring in representatives from national bodies such as the NFU, the CLA, the Ramblers' Association and others.
  In subsection (3) I have added a provision that there should be an advisory council if a conservation board decides that that would be appropriate. I believe that that is the correct way in which to involve representatives of local organisations who are concerned with the objectives of the conservation board. I would much rather see them involved at the level of advisory council, which might meet two or three times a year, instead of in the composition of the board itself, for the reasons I have outlined. I have tried in this amendment to arrive at a compromise figure which balances the different factors and pressures. It is on that basis that I beg to move.
  Lord McIntosh of Haringey: My Lords, perhaps it may help the House if, as I did earlier, I say a few words about the government amendments and then, with the leave of the House—without curtailing debate—come back and talk to the other amendments.
  Perhaps I may first tell the noble Lord, Lord Renton, a little story. In the 1960s, I was a member of the Metropolitan Water Board, which had something like 100 members. It needed 100 members because the grand boardroom in New River Head had 100 seats, and it would have been awful if there were not 100 members. The majority Labour group used to meet at 1.30; the board would meet at 2.30. On the rising of the board, the water examination committee would meet in the Oak room. On the rising of the water examination committee, tea was served in the Oak room. Tea was never served later than 2.45. That was an efficient way to run a board.
  Lord Renton of Mount Harry: My Lords, perhaps I may cap the Minister's story. I have a meeting of my conservation board in nine-and-a-quarter hours' time in Lewes, Sussex. I suspect that all 36 members will be there waiting for me in order to find out how I got on tonight.
  Lord McIntosh of Haringey: My Lords, I shall speak for a shorter time than the noble Lord, Lord Renton.
  As regards Amendments Nos. 239 to 243, I explained in Committee that the Government's proposals for the membership are for at least 40 per cent—it could be more—to come from local authorities; for, in England, at least 20 per cent—again it could be more—to be parish members; and for whatever proportion is left to be appointed by the Secretary of State in order to represent all the other

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  interests that needed to be represented, such as conservation specialists, land managers and people who use their AONB for recreational purposes.
  But there were concerns expressed that the Secretary of State would be allowed to appoint up to 60 per cent of the members, and that was seen to be too great a proportion. Amendments Nos. 239 to 243 now provide that in respect of conservation boards in England, the parish members would be appointed by the parishes themselves rather than by the Secretary of State. We will provide for this by specifying in individual establishment orders how the parishes will go about making these appointments. We will consult before an establishment order is drafted with the relevant county associations of local councils—again I declare an interest as a vice-president of the National Association of Local Councils—and the affected parishes themselves as to what the order would say.
  That means in England that the Secretary of State will be able to appoint an absolute maximum of 40 per cent of the members, with the majority being democratically appointed locally. It is thoroughly appropriate that the Secretary of State should appoint some members to reflect the national interest in the AONB and the central government funding which will be provided.
  In Wales, if conservation boards are introduced—it will be a matter for the National Assembly to decide—the Assembly will decide in practice how to distribute the membership interest beyond the basic requirement for at least 40 per cent to come from the local authorities.
  Lord Dixon-Smith: My Lords, my Amendment No. 238C only makes sense now that the Minister has explained Amendments Nos. 239 to 243. I am extremely grateful to him for what he said. Under the original draft of the Bill before us in Committee, the fact that parish council members could be appointed by the Secretary of State caused concern because we felt that it gave the Secretary of State too great a power of appointment. That is now removed. It is a very welcome concession and I am grateful to the Government for it.
  Amendment No. 238C, which is grouped with these amendments, concerns those members that the Secretary of State can still appoint. It requires the Secretary of State to make those appointments from a list of nominees obtained from local conservation bodies and other relevant organisations. The Secretary of State is bound to do that because there is no point in appointing anyone other than local people to these local bodies.
  Again, I should have thought that this was another of those irresistible amendments which the Minister ought at the very least to consider seriously. I do not expect an answer from him now. However, I should have thought that he could accept those words and find the situation satisfactory from the point of view of the conservation boards in the future. I ask the Minister to consider Amendment No. 238C very seriously indeed.
  1.15 a.m.
  Baroness Miller of Chilthorne Domer: My Lords, we on these Benches feel that the government move to allow parishes to appoint their own members is very positive. It will send out a good message to parish councils about government trust in their abilities.
  Lord McIntosh of Haringey: My Lords, with the leave of the House, perhaps I may respond very briefly. Now I have said that! I hate people saying "very briefly". They never mean it—and I do not mean it.
  Let me deal first with the amendment moved by die noble Lord, Lord Renton. It is similar to the one he proposed in Committee and I have already spoken to that. I do not think that it is an improvement on I he Government's proposals. I understand the desire to keep the number of members down, but we do not see a need to tie our hands in advance.
  Under the noble Lord's proposal there would be a likely maximum of 12 local authority members, which would not allow every local authority to have even one representative in bigger AONBs such as the Chilterns or the Cotswolds where there are some 15 local authorities. I believe that this would be an obstacle to getting local authorities to participate in conservation boards. The noble Lord seems to envisage that local authorities and parish councils will come together by some mechanism to agree on the distribution of their membership. I think that our proposal to have parish councils make their own choice is better.
  Amendment No. 238C would require the Secretary of State's members of conservation boards to be appointed,
  "from a list of nominees obtained from local conservation bodies and other relevant organisations".
  That is more restrictive than our proposal. The Secretary of State will, of course, expect to make hi s appointments taking into account the nominations coming from local conservative bodies as well as from other organisations. The process will be based on the Nolan principles for public appointments—appointments on merit following the principles of independent scrutiny, equal opportunities, openness and transparency. But it would be a shame for this body, but not for any other comparable bodies, to have a restriction on who could nominate prospective candidates for membership. No restriction is imposed on the membership of national park authorities. Members of such authorities were not, of course, appointed according to the Nolan procedures. But if we now have those procedures, surely we do not need to have restricted nominating bodies.
  Lord Renton of Mount Harry: My Lords, in the light of the government amendments, which I find satisfactory, I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Schedule 13 [Areas of outstanding natural beauty: conservation boards]:
  [Amendment No. 238C not moved.]
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 239 to 243:
  Page 138, line 2, at end insert (", and
  (c) in the case of an English conservation board, such number of parish members as may be so specified.").
  Page 138, line 3, leave out sub-paragraph (2).
  Page 139, line 2, leave out from ("appointed") to end of line 3 and insert (", in accordance with the provisions of the relevant order, by—

  (a) the parish councils for parishes the whole or any part of which is comprised in the relevant area of outstanding natural beauty, and

  (b) the parish meetings of any of those parishes which do not have separate parish councils.").

  Page 139, line 33, leave out sub-paragraph (7).
  Page 140, line 7, leave out sub-paragraph (6).
  On Question, amendments agreed to.

  Clause 80 [General purposes and powers]:
  [Amendments Nos. 244 and 245 not moved.]
  Clause 81 [Orders establishing conservation boards]: [Amendment No. 246 not moved.]
  Clause 82 [Management plans]:
  Lord Glentoran Lord Glentoran moved Amendment No. 247:
  Page 57, line 15, after ("prepare") insert (", consult locally on").
  The noble Lord said: My Lords, perhaps I may follow the noble Lord, Lord McIntosh, and speak at some considerable length on Amendments Nos. 247 to 249.
  Amendments Nos. 247 and 248 are self-explanatory. Amendment No. 247 provides that conservation boards should publish plans, but that they should consult locally on them. As for Amendment No. 248, we believe that management plans should be reviewed within 12 months. This should be a priority, as boards may wish to change their initial plans. The provision in the amendment would add to their flexibility.
  Amendment No. 249 provides that the conservation board may review and adopt any plan prepared in the period before the board existed or in the subsequent two years. Under Clause 82(5)(a), the plan could have been prepared by a single authority, which need not cover the whole AONB. In fact, one could assume that it would not cover the whole. If it did, there would be no need for a conservation board. In such a circumstance there should be a statutory duty on the board to consult other local authorities wholly or partly covered by the AONB.
  Perhaps I may also speak to Amendment No. 249A, which is tabled in the name of my noble friend Lord Renton of Mount Harry. This requires a published response to every management plan within six months. That seems to me to be an extremely sensible proposition and one that I support. I beg to move.
  Lord Renton of Mount Harry: My Lords, I thank my noble friend Lord Glentoran for what he said in support of my amendment. Quite simply, the point of my amendment is to ensure that, once management
  506
  plans have been sent to the Minister and public bodies, a reply is received. Under Clause 83(2), the Secretary of State or the National Assembly for Wales may receive a copy of a management plan, but there is no requirement upon them to reply. So what is likely to happen? What will the Secretary of State do with the plan? Will he put it in a drawer, will he bin it or does he reply to it? The fact is that far too infrequently does the Secretary of State reply. Indeed, I receive comments on this from many people working for national parks. It is a matter of vexation to them and could be so for conservation boards in the future. After spending a great deal of time and effort on producing a management plan, nothing more is heard from the Minister or the department concerned.
  The amendment is directed particularly at the Ministry of Agriculture, Fisheries and Food. At the heart of this amendment is the acceptance that national parks authorities or conservation boards which prepare management plans have no direct influence upon farming management. The main influence on agricultural land management is concentrated on the activities of MAFF and the Forestry Commission. These government departments and agencies are in charge of delivering all the Government's intervention systems which influence agriculture. However—and this is the crux of the matter—there is no obligation, apart from the general duties clause, for government departments or their agents to take action in the delivery of management plan objectives.
  My amendment would not tie other government departments to take particular action. All it would do is require them to say, "We agree with this; we are getting on with it", or, "We don't agree with this, and these are the reasons why". This is a sensible amendment that I very much hope Ministers will be able to adopt. When replying to a similar amendment that I tabled in Committee, the Minister was rather off hand. I think that that is a mistake. What I am suggesting here allows room for disagreement. It would not tie the Minister's hand and oblige him to agree to do things that he does not wish to do. However, it would require him to say something in reply. I very much hope that the amendment will receive support from all sides of the House and, indeed, from the Government Front Bench.
  Baroness Miller of Chilthorne Domer: My Lords, we on these Benches support Amendment No. 249A. As the noble Lord, Lord Renton, said, there is not much point in producing a plan if the Government make no response whatever to it. Moreover, in terms of plans there are many others to which the Government do respond in one way or another; for example, local transport plans, local development plans and community strategies. Surely this plan will fit in with that pattern of response.
  Lord Whitty: My Lords, Amendments Nos. 247 and 249 appear to have as their aim to express in the legislation the need to consult locally on the preparation or review of management plans. It is the

  507
  Government's firm view that there should be widespread local consultation when management plans are prepared or reviewed.
  The position is that the Countryside Agency has begun work on guidance on the preparation of management plans, in full co-operation with those who look after AONBs, and that guidance will undoubtedly indicate a wide-ranging local consultation similar to the wide-ranging local consultation when national park management plans are prepared. That matter is best covered by guidance rather than by a measure on the face of the Bill.
  Amendment No. 248 would require a local authority or conservation board which is intending to review and adopt a non-statutory plan prepared before the passage of the Bill to review it within 12 months. However, the amendment does not appear to be consistent with, or follow through, any change as regards the timescale which is already on the face of the Bill in Clause 82. The amendment is internally inconsistent. Local authorities will have to publish such plans within three years of commencement or designation of the AONB, whichever is the sooner, and conservation boards will have to do so within two years of the establishment of a conservation board. So it is not necessary separately to require the review to happen within 12 months. Neither does it define when the 12 months would begin. I believe that the timetable in the Bill is clear. The amendment would confuse the issue.
  I was gratified to hear the noble Lord, Lord Renton of Mount Harry, say that his Amendment No. 249A constituted mainly "having a go" at MAFF rather than my department. Nevertheless I consider that it is a little misplaced. The provision he has in mind, and the noble Baroness, Lady Miller, has in mind, relates to plans which are part of the planning system; that is, the structure plan, the development plan and the community strategies to some extent. However, the management plan is in a different category. Structure plans which are generally prepared by the local planning authority at county level are very much part of the development plan system and subject to formal response from the Secretary of State. That is the general position with regard to the development plan system.
  AONB management plans are different. They are not part of the development plan system. Wherever there is a management plan there will also be a structure plan which will go through the normal process in relation to the Secretary of State. I do not see that the amendment would of itself bring about any improvement in the way in which the system of management plans operates in practice. Clearly there are occasions when the Government will wish to comment on the plan and the representatives of government will certainly want to participate in the plan, or the review of the plan, and in the work involved in delivering the plan, usually through the Countryside Agency and other bodies. This should be a continuing involvement by the Government's local agents as integral partners.
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  What we do not want to see is a system of formal responses from government, which appears to be the implication of the amendment. As occurs with the planning system on occasion, that risks developing into a confrontational situation in requiring the Government to draw up a list of ways in which their policies may conflict with the management plan. That would not be productive; it misunderstands the nature of the management plan system. If the plan has been prepared sympathetically with the participation of the agencies involved, there should be no such conflict. If the Secretary of State has to make a formal, statutory response, one gets into a situation approximating to the response to development plans, regional planning guidance and so forth. I do not think that that was the intention.
  If it would help the noble Lord, Lord Renton of Mount Harry, I assure him that the question of the involvement of the Government and their agencies in the system of management plans is one that we are determined to see dealt with firmly and clearly in the guidance which the Countryside Agency is in the process of producing.
  The noble Lord may take comfort from government Amendment No. 234 giving government departments and others a statutory duty to have regard to the purpose for which AONBs are designated. However, I would not think that the formal response which seems to be required by the amendment is sensible. I hope that he will withdraw the amendment.
  1.30 a.m.
  Lord Glentoran: My Lords, I thank the Minister for those explanations. We have come a long way. Our amendments relate to consultation and planning. I think that there is a good logic here. I accept the Minister's words that consultation will now take place, not just on this issue. I am content with that. I hope that plans will be produced after that consultation. Things happen only if you make plans to ensure that they happen and then review those plans to see what corrective action is needed. I hope that a system will be built up within the conservation boards which allows for plans to be made and reviewed on a regular basis. That is the nub of the matter. The Minister knows what we are driving at. He wants what we want. On that basis, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 248 and 249 not moved.]
  Lord Renton of Mount Harry Lord Renton of Mount Harry had given notice of his intention to move Amendment No. 249A:
  After Clause 83, insert the following new clause—

  OBLIGATION IN RESPECT OF MANAGEMENT PLANS
  (" .—(1) The Minister (as respects England) and the National Assembly for Wales (as respects Wales) shall, in respect of every management plan which they receive, publish a response within six months setting out—

  (a) the steps which the Minister or the Assembly intend to take to further the objectives in that management plan; and

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  (b) the extent to which the policies of the Minister or the Assembly may conflict with that management plan, and the steps which are to be taken to resolve that conflict.

  (2) In this section—
  "management plan" means a plan published in accordance with—

  (a) section 82, or

  (b) section 66 of the Environment Act 1995; and.

  "Minister" means the Secretary of State or the Minister of Agriculture, Fisheries and Food.").
  The noble Lord said: My Lords, I cannot say that I have quite the same satisfaction with the Minister's reply. He said that he did not see how my amendment, which provides that Ministers would have to reply to management plans within six months, would help or improve the process. I cannot believe that he really thinks that.
  An individual may have spent a lot of money and time working to improve a management plan, perhaps having consulted with the Countryside Agency, the NFU or MAFF in the process. Having finally sent the plan, he then receives a card from the Minister (as I did recently) saying, "Thank you. The contents have been noted". That is not satisfactory. That seems common sense.
  Under the circumstances, given the late hour, I do not wish to take the matter further now. However, I shall return to the issue at Third Reading.
  [Amendment No. 249A not moved.]
  Clause 84 [Grants to conservation boards]:
  [Amendments Nos. 250 to 251 not moved.]
  Clause 85 [Interpretation of Part IV and supplementary provision]:
  Lord Whitty Lord Whitty moved Amendments Nos. 252 and 253:
  Page 59, line 27, leave out ("Act") and insert ("Part"). Before Clause 87, insert the following new clause—
  ("Local access forums

  LOCAL ACCESS FORUMS
  .—(1) The appointing authority for any area shall in accordance with regulations establish for that area, or for each part of it, an advisory body to be known as a local access forum.
  (2) For the purposes of this section—

  (a) the local highway authority is the appointing authority for their area, except any part of it in a National Park, and

  (b) the National Park authority for a National Park is the appointing authority for the National Park.

  (3) A local access forum consists of members appointed by the appointing authority in accordance with regulations.
  (4) It is the function of a local access forum, as respects the area for which it is established, to advise—

  (a) the appointing authority,

  (b) any body exercising functions under Part I in relation to land in that area,

  (c) if the appointing authority is a National Park authority, the local highway authority for any part of that area, and

  (d) such other bodies as may be prescribed,

  as to the improvement of public access to land in that area for the purposes of open-air recreation and the enjoyment of the area, and as to such other matters as may be prescribed.
  (5) The bodies mentioned in paragraphs (a) to (d) of subsection (4) shall have regard, in carrying out their functions, to any relevant advice given to them by a local access forum under that subsection or any other provision of this Act.
  (6) In carrying out its functions, a local access forum shall have regard to—

  (a) the needs of land management,

  (b) the desirability of conserving the natural beauty of the area for which it is established, including the flora, fauna and geological and physiographical features of the area, and

  (c) guidance given from time to time by the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales).

  (7) Subsection (1) does not apply to the council of a London borough or to any part of their area unless the council so resolve.
  (8) The Secretary of State, as respects England, or the National Assembly for Wales, as respects Wales, if satisfied that no local access forum is required for any area or part of any area, may direct that subsection (1) is not to apply in relation to that area or part.
  (9) Before giving a direction under subsection (8) as respects an area or part of an area, the Secretary of State or the National Assembly for Wales must consult the appointing authority for the area and the appropriate countryside body.
  (10) In this section—
  "appropriate countryside body" has the same meaning as in Part I;
  "local highway authority" has the same meaning as in the 1980 Act;
  "prescribed" means prescribed by regulations;
  "regulations" means regulations made, as respects England, by the Secretary of State, and, as respects Wales, by the National Assembly for Wales.").
  On Question, amendments agreed to.
  [Amendment No. 254, as an amendment to Amendment No. 253, not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 255:
  Before Clause 87, insert the following new clause—

  LOCAL ACCESS FORUMS: SUPPLEMENTARY
  (" .—(1) Regulations under section (Local access forums) may in particular include provision—

  (a) as to the appointment as members of a local access forum of persons appearing to the appointing authority to be representative of persons of any specified description or of any specified body;

  (b) as to the establishment by appointing authorities of joint local access forums.

  (2) The regulations must provide for the appointment of persons appearing to the appointing authority to be representative of—

  (a) users of local rights of way or the right conferred by section 2(1);

  (b) owners and occupiers of access land or land over which local rights of way subsist.

  (3) In subsection (2) —
  "access land" has the same meaning as in Part I;
  "local rights of way" has the meaning given by section 57(5), but as if the references there to a local highway authority and their area were references to an appointing authority and their area.
  (4) The Secretary of State and the National Assembly for Wales, in making regulations under section (Local access forums) containing such provision as is mentioned in subsection (2), must have regard to the desirability of maintaining a reasonable balance

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  between the number of members of any local access forum appointed in accordance with paragraph (a) and in accordance with paragraph (b) of subsection (2).
  (5) Regulations under section (Local access forums) may include such supplementary or incidental provision as appears to the Secretary of State or National Assembly for Wales (as the case may be) to be necessary or expedient.
  (6) For the purposes of section (Local access forums), the Broads are to be treated as a National Park and the Broads Authority as a National Park authority.
  (7) In subsection (6) "the Broads" has the same meaning as in the Norfolk and Suffolk Broads Act 1988.
  (8) Regulations under section (Local access forums) shall be made by statutory instrument, and a statutory instrument containing such regulations made by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
  Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved, as an Amendment to Amendment No. 255, Amendment No. 256:
  Line 14, at end insert—
  ("(c) other interests especially relevant to that area").
  On Question, Amendment No. 256, as an amendment to Amendment No. 255, agreed to.
  On Question, Amendment No. 255, as amended, agreed to.
  Clause 87 [Power of countryside bodies to enter into management agreements]:
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 257:
  Page 59, line 39, after ("land),") insert—

  ("(a) in subsection (1) the words "both in the countryside and" are omitted, and

  (b)")

  The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendment No. 261. At present Section 39(1) of the Wildlife and Countryside Act 1981 allows local planning authorities to enter into management agreements with landowners which may be made binding on successors in title,
  "for the purpose of conserving or enhancing the natural beauty or amenity of any land which is both in the countryside and within their area or promoting its enjoyment by the public".
  The Countryside and Rights of Way Bill contains a provision at Clause 87 which amends Section 39 of the 1981 Act so as to allow the countryside bodies to enter into management agreements with landowners under that section. The purpose of that amendment is to allow the countryside bodies to enter into agreements to protect the status of open countryside to which access will be granted under Part I, and so ensure the permanence of the right of access.
  The noble Baroness, Lady Miller of Chilthorne Domer, tabled a similar amendment in Committee. This amendment will also give the Countryside Agency powers to provide permanent protection to millennium greens in towns. We therefore agree with the noble Baroness that it provides a useful addition to its armoury. I beg to move.
  Baroness Miller of Chilthorne Domer: My Lords, I am grateful to the Government for tabling Amendment No. 257 to deal with the concerns that we expressed in Committee. The Minister mentioned millennium greens. Is she also speaking to Amendment No. 258A?
  Baroness Farrington of Ribbleton: No.
  On Question, amendment agreed to.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 258:
  After Clause 87, insert the following new clause—
  ("Norfolk and Suffolk Broads
  . In Part IV of the Norfolk and Suffolk Broads Act 1988, before section 18 there is inserted—
  "General duty of public bodies etc.
  17A.—(1) In exercising or performing any functions in relation to, or so as to affect, land in the Broads, a relevant authority shall have regard to the purposes of—

  (a) conserving and enhancing the natural beauty of the Broads;

  (b) promoting the enjoyment of the Broads by the public; and

  (c) protecting the interests of navigation.

  (2) The following are relevant authorities for the purposes of this section—

  (a) any Minister of the Crown,

  (b) any public body,

  (c) any statutory undertaker,

  (d) any person holding public office.

  (3) In subsection (2) —
  "public body" includes—

  (a) a county council, district council or parish council;

  (b) a joint planning board within the meaning of section 2 of the Town and Country Planning Act 1990;

  (c) a joint committee appointed under section 102(1)(b) of the Local Government Act 1972;

  "public office" means—

  (a) an office under Her Majesty;

  (b) an office created or continued in existence by a public general Act; or

  (c) an office the remuneration in respect of which is paid out of money provided by Parliament."").

  The noble Baroness said: My Lords, the amendment is in response to Amendment No. 543ZC, tabled in Committee by the noble Baroness, Lady Miller of Chilthorne Domer. It will require any relevant authority, in exercising its functions in relation to or so as to affect land in the Broads, to have regard to the purposes for which the Broads have been designated under Section 2(1) of the Norfolk and Suffolk Broads Act 1988. The amendment is equivalent to Amendment No. 234, which places a similar duty on

  513
  relevant authorities to have regard to the purpose for which AONBs have been designated when doing anything that affects an AONB. It is also equivalent to the appropriate provisions relating to national parks. The arguments are the same in each case.
  The amendment will ensure that all the family of national landscape designations are similarly protected by requiring relevant authorities to have regard to their purposes of designation. I beg to move.
  Baroness Miller of Chilthorne Domer: My Lords, I know that the Broads authority is glad finally to be treated on the same footing as the other national parks. I thank the Government.
  On Question, amendment agreed to.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 258A:
  After Clause 87, insert the following new clause—
  ("Town and village greens

  REGISTRATION OF TOWN AND VILLAGE GREENS
  .—(1) Section 22 of the Commons Registration Act 1965 (interpretation) is amended as follows.
  (2) In subsection (1), in the definition of "town or village green" for the words after "lawful sports and pastimes" there is substituted "or which falls within subsection (1A) of this section.
  (3) After that subsection there is inserted—
  "(1A) Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either—

  (a) continue to do so, or

  (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.

  (1B) If regulations made for the purposes of paragraph (b) of subsection (1A) of this section provide for the period mentioned in that paragraph to come to an end unless prescribed steps are taken, the regulations may also require registration authorities to make available in accordance with the regulations, on payment of any prescribed fee, information relating to the taking of any such steps.".").
  The noble Baroness said: My Lords, the amendment honours the commitment that the Government gave in Committee to bring forward proposals on the registration of town and village greens. We understand the difficulties in registering land as a town or village green, mentioned by the noble Baroness, Lady Miller. We share her wish to clarify and update the definitions in the Commons Registration Act 1965.
  The amendment directly addresses two of the noble Baroness's concerns. It makes it clear that qualifying use must be by a significant number of people from a particular locality or neighbourhood. That removes the need for applicants to demonstrate that use is predominantly by people from the locality and means
  514
  that use by people from outside that locality will no longer have to be taken into account by registration authorities. It will be sufficient for a significant number of local people to use the site as of right for lawful recreation and pastimes.
  Secondly, the amendment addresses the problem of applications being accepted only where it can be demonstrated that users come from a discrete area, such as a village or parish. That is not easy in large built-up areas. The amendment introduces the concept of neighbourhood and provides that users should come either from a locality or from a neighbourhood within a locality.
  The final part of the equation has proved a little more difficult to resolve. The Government have difficulties with the proposal that land should remain subject to registration as a green many years after its use for lawful sports and pastimes has ceased. That would have been the effect of the amendment tabled in Committee by the noble Baroness, Lady Miller of Chilthorne Domer. That amendment provided that qualifying use had only to end after 31st July 1990. That is already 10 years ago. Such a provision could significantly interfere with planned development.
  However, the Government accept that the current interpretation of the law, which is that qualifying use must have taken place virtually up to the date of the application for registration, is onerous. It makes it difficult for applicants to bring together in time all the necessary evidence of use over a 20-year period.
  Therefore, our amendment gives the Secretary of State the power to make regulations to establish an appropriate time limit within which an application to register must be lodged. At present, we are minded to make that two years. We believe that it is an appropriate period within which it is reasonable to expect an applicant to be able to draw up the evidence necessary to support an application. If no application is lodged within that two-year period, the owner or developer will be able to take whatever steps are necessary to develop the land in the certainty that an application for registration as a green cannot be entertained.
  The Government will of course consult widely on the content of the regulations proposed under this amendment, which I hope the House will be able to accept. I beg to move.
  Baroness Miller of Chilthorne Domer: My Lords, I thank the Government for bringing forward this amendment in the short time they had available to resolve these difficult issues. In particular, I thank the Minister for explaining subsection (3)(b), which was quite difficult to interpret. There is no doubt that these smaller open spaces are important to people, and I believe that this provision will be valuable.
  Perhaps I may ask the Minister whether the Government anticipate that regulations will be made

  515
  within a fairly short time. She mentioned a timescale of two years for paragraph (b). Presumably, that is the same time that would be required for regulations to be made. I am slightly nervous about that issue because we know that greens are being lost to developers who exploit the loopholes. I wish to establish that the timescale will be adequate in order to cover that issue.
  I also appreciate the Minister's definition of what the Government have in mind in relation to the term "neighbourhood". As I understand it, the intention is to widen the definition of "locality" so that there can be no argument if people from an area generally use a green. Whether it is a locality or a neighbourhood, that is an adequate test. I thank the Government for that.
  Baroness Farrington of Ribbleton: My Lords, with regard to the noble Baroness's second question, the intention when introducing the phrase was to clarify that the area from which the users come does not have to follow an administrative boundary. I understand that the timescale is approximately the same. Therefore, I am sure that the noble Baroness will find it acceptable. Should I find that I am in error, I shall of course write to her.
  On Question, amendment agreed to.
  Schedule 16 [Repeals]:
  Lord Whitty Lord Whitty moved Amendments Nos. 259 to 261:

  Page 144, line 3, at end insert—

  ("1980 c. 66.

  The Highways Act 1980.

  Section 134(5).")

  Page 144, line 5, column 3, at end insert—

  ("In section 57(1), the words "on such scale as may be so prescribed,".")

  516

  Page 146, line 16, at end insert—

  ("PART VI OTHER

  Chapter

  Short title

  Extent of repeal

  1981 c. 69.

  The Wildlife and Countryside Act 1981.

  In section 39(1), the words "both in the countryside and".")

  On Question, amendments agreed to.
  Clause 92 [Commencement]:
  Lord Whitty Lord Whitty moved Amendments Nos. 262 to 263:
  Page 61, line 14, leave out ("and 16") and insert ("to 17"). Page 61, line 21, after ("10,") insert ("11").
  Page 61, line 22, at end insert—
  ("sections (Local access forums) and (Local access forums: supplementary).").
  On Question, amendments agreed to.
  [Amendments Nos. 264 to 264B not moved.]
  Clause 93 [Interpretation, short title and extent]:
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 265:
  Page 61, line 36, at end insert—
  (""local access forum" means a local access forum established under section (Local access forums).").
  On Question, amendment agreed to.

Transport Bill
Returned from the Commons with certain amendments disagreed to with reasons for such disagreement and with the remaining amendments agreed to; the reasons were ordered to be printed (HL Bill 131).
House adjourned at fifteen minutes before two o'clock.