HL Deb 16 November 2000 vol 619 cc386-410

(".—(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—

  1. (a) walking,
  2. (b) wheelchair access,
  3. (c) cycling,
  4. (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—

  1. (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;
  2. (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;
  3. 387
  4. (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—

  1. (a) the creation of a footpath or bridleway under section 25 or 26 of the 1980 Act;
  2. (b) the dedication of a highway under section 30 or 31 of the 1980 Act;
  3. (c) the stopping up or diversion of a highway under section 116. 117, 118 or 120 of the 1980 Act;
  4. (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 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 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 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 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 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 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.

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 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 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— 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 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.

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 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 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 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.

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 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 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.

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 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 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 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 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 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 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.

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.

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 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 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 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 moved Amendment No. 196: Before Clause 65, insert the following new clause—