HL Deb 09 October 2000 vol 617 cc101-48

8.46 p.m.

House again in Committee.

Clause 48 [Restricted byways: power to amend existing legislation]:

Baroness Lockwood moved Amendment No. 340: Page 29, line 7, after ("byways") insert ("or as byways open to all traffic").

The noble Baroness said: In moving Amendment No. 340, I shall speak also to Amendment No. 367. Both amendments are concerned with procedures for appeal against closures or diversions of rights of way under Section 116 of the Highways Act 1980. Amendment No. 340 is concerned with byways and restricted byways; Amendment No. 637 is concerned with footpaths and bridleways.

The background to the amendments is that every year some hundreds of changes are made to rights of way, normally on the application of landowners. This usually involves volunteer workers and volunteer organisations making a case against the application in the public interest.

Local authorities, whose responsibility it is to deal with such changes to rights of way, have two courses open to them for dealing with closures or diversions. The first is to use the standard procedure whereby an order is made and objections are determined by an inspector asking for the advice of the Secretary of State. This is the Secretary of State's preferred course, and he has so advised local authorities. The second way—which, despite the advice of the Secretary of State, is still used by some local authorities—is by way of an application for an order in the magistrates' court.

Amendment No. 367 would have immediate effect in removing footpaths and bridleways from the jurisdiction of magistrates' courts. For some considerable time, voluntary organisations such as the Ramblers' Association, the Open Spaces Society and so on, have argued against this form of dealing with appeals. They have found that volunteer workers have had difficulty in presenting their case to the magistrates' court. Moreover, the wording of Section 116 is somewhat archaic and presents difficulty not only for voluntary organisations and volunteer workers, but for the magistrates' courts as well. On occasions, voluntary bodies have had recourse to the High Court, on appeal, when the magistrates' court had difficulty in following Section 116.

Amendment No. 340 is somewhat different in that it would not have immediate effect but gives the Secretary of State powers to issue regulations or orders covering this matter at a later date. If byways and restricted byways were immediately removed from the jurisdiction of Section 116, there would be no alternative procedure for dealing with appeals. Therefore, the amendment is worded so as to give the Secretary of State time to introduce at a later date, by way of regulation, further restrictions in relation to Section 116 to cover byways and extended byways and to look at the extension of Sections 118 and 119 to ensure that byways are covered by those two sections.

As I said, Section 116 is somewhat archaic. It is an historical anomaly and should be removed. I beg to move.

Baroness Byford

I rise to seek clarification in regard to one or two points in the amendment. I understood from the noble Baroness's introductory remarks that she was concerned that volunteer workers possibly felt that they were unequally placed to cope with putting forward their arguments as to why a particular path should remain open or closed as compared with the landlord. I shall give the noble Baroness the opportunity to respond.

The noble Baroness also indicated that the local authorities would take over the responsibility from magistrates. I am trying to follow her argument correctly. Does she have examples of cases where the Ramblers' Association and the Open Spaces Society have raised these issues with the magistrates' courts and found that they were not fairly dealt with? Perhaps she can indicate the proportion of cases where people felt that they had been successful and where they felt that they had not. This matter is a little unclear to me, and the point worried me immensely. I am not a JP, but I have friends who are. Whether they deal with this particular issue, I have no idea, nor have I had a chance to talk to them about it. Is the implication that JPs are somehow inadequate or that they are not doing their job properly and the noble Baroness believes that local authorities would be better at dealing with these matters? Perhaps she will clarify the point.

Baroness Lockwood

The alternative is not the local authorities; it is the usual statutory way of the Secretary of State hearing appeals through an inspector and submissions being made to the inspector. Certainly, I am not casting doubt on the ability of magistrates' courts. It is just that this is a rather strange and archaic piece of legislation with which, I am led to understand, both volunteer workers and the magistrates' courts have some difficulty in dealing.

Baroness Byford

I am grateful for that clarification. I am sorry; I was trying to follow the noble Baroness's argument logically. owever, HowvI have no problem in following the argument; however, I am still somewhat confused in that the noble Baroness has not answered my question as to how many cases have been brought which she felt were not dealt with clearly by magistrates and where groups might have been happier had their evidence been heard by the Secretary of State in appeals—presumably because it is a slightly more informal system. I should have thought that the cases would be judged in the same way. What I am searching for is the background or the statistics that form the basis for bringing these amendments forward.

Baroness Lockwood

I do not have any statistics. As I said at the outset, a large number of changes go through the courts throughout the year. It is the view of those who are making representations against the changes that it is much simpler and more straightforward to do so in the normal way whereby the Secretary of State receives the appeals and appoints an inspector to undertake a public hearing where evidence can be submitted either in writing or orally.

Baroness Miller of Chilthorne Domer

I have enormous sympathy with the voluntary sector in everything that it tries to do on the issue of rights of way. Certainly we should have a great deal of sympathy with the kind of thing that the noble Baroness seeks to achieve with her amendment, although I am not sure that this is necessarily the way to do it. Having listened, for example, to the complexity of the exchange between my noble friend Lady Scott and the noble Lord, Lord McIntosh, earlier on our Amendment No. 322A, I can see why the voluntary sector might well feel that a simplified method is desirable. Although I am sure that the Government have their reasons, in Part II of the Bill we are still stuck with an essentially difficult process every step of the way. It seems to me that the kind of procedure used to develop local plans is much more streamlined and inclusive of the public and that it is much easier to make your case if you are from the voluntary sector.

At this stage, I should like to read the noble Baroness's remarks. As so much of the rights of way improvement work will fall on the voluntary sector, we should like to take seriously any practical suggestions to help the sector.

Lord Whitty

Perhaps I may deal first with the main part of my noble friend's Amendment No. 367. The main burden of the amendment is to remove the procedure from the magistrates' courts as an option.

The question of whether the powers under Section 116 should be removed from the magistrates' courts was covered in our consultation exercise, but the proposal was, generally speaking, not supported. It was opposed in particular by the local authorities. We concluded that there could, therefore, well be cases where the powers of the magistrates' courts, which are slightly different from those available to local authorities, under Sections 118 and 119 of the 1980 Act could still be useful.

Therefore, although the Government agree with my noble friend that, in general, local authorities should use powers under Sections 118 and 119, rather than seek an order from a magistrates' court—and we shall continue to emphasise that point in our advice to local authorities—we have been persuaded, mainly by the local authorities themselves, that it would be sensible to leave the court procedure in place for particular cases.

As my noble friend said, it is true that the role of the magistrates' court in the closure and diversion of highways is, if you like, a relic of history; indeed, it goes back a long way. However, in turn, that means that it has wider implications than the provisions contained in this part of the Bill. That may be a matter for future review of highway law generally, rather than dealing with it separately at this point. Although I understand what my noble friend is seeking to achieve, I hope that she will agree that we should not entirely exclude the magistrates' court procedure at this stage.

As I understand Amendment No. 340, my noble friend is really trying to ensure some extra flexibility for the Secretary of State. However, I am not sure that this amendment would achieve that aim, because it would apply the regulation-making powers of Clause 48 to BOATs—byways open to all traffic—as well as to restricted byways, thereby extending the powers of the Secretary of State. We do not believe that that is necessary for BOATs. They have been on the statute book for over 30 years. They carry full vehicular rights and they differ from other minor roads only in that their usefulness to walkers and horse riders requires them to be recorded as such on definitive maps.

However, restricted byways are entirely new. The only reason the Government have introduced the powers in Clause 48 is that there is not enough time to consider all the amendments to existing legislation that might be necessary in relation to restricted byways and include them in the Bill. Therefore, this is a prudent "buying time" measure to ensure that current legislation operates effectively in relation to a new kind of highway. We believe that the rules relating to BOATs are sufficient to provide the Secretary of State with the degree of flexibility that my noble friend seeks. I hope, therefore, that she will not pursue her amendment.

9 p.m.

Baroness Lockwood

I thank my noble friend for his reply. I am glad that the Secretary of State will continue to give firm advice to local authorities on the issue. However, I am not quite happy with the fact that the Government have decided to accept the view of local authorities, which want to retain the right to resort to the magistrates' court. For example, at present, the Section 116 procedure is often used to seek closure of paths for crime prevention reasons. But there are new powers under Clause 53 and Schedule 6 to the Bill to enable orders to be made to close or divert paths for similar reasons. That process would be dealt with by the Secretary of State and the inspectorate, rather than the magistrates' court. In the interests of some uniformity and simplicity, surely it would be useful to make byways and restricted byways subject to the same procedure. Nevertheless, I shall read my noble friend's response with care. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton moved Amendment No. 341: Page 29, line 11, at end insert ("or subsection (3A)(a)").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 342 to 349. These amendments relate to the powers in Clause 48, which enable the Secretary of State to make regulations amending a wide range of primary and secondary legislation to take account of the creation of restricted byways as a new category of highway. There is a large body of legislation relating to highways. It would be impossible to review all the provisions and incorporate all the necessary amendments on the face of the Bill. Because Clause 48 is a wide-ranging power, the Government initially took the view that it should be a matter for the Secretary of State alone, subject to the approval of both Houses.

However, after discussion with the National Assembly for Wales, we have reviewed our position. We now believe that the Assembly should have appropriate powers in relation to Clause 48. Amendments Nos. 343 and 347 would enable the assembly to make regulations under Clause 48 amending local and private Acts that relate only to Wales and amending any secondary legislation that the Assembly currently has the power to amend or revoke. Amendment No. 344 has three further purposes. First, it would require the Secretary of State to consult the Assembly before using his powers under Clause 48 to make provisions having effect in relation to Wales.

Secondly, the amendment would prevent the Secretary of State from using Clause 48 expressly to amend or revoke secondary legislation made by the Assembly without its consent. Thirdly, the amendment would make express provision for the Assembly to submit proposals to the Secretary of State for exercising his powers under Clause 48.

Finally, when laying regulations before Parliament, Amendment No. 349 would require the Secretary of State to lay before each House a document giving details of any consultations with the National Assembly required by Amendment No. 344 and setting out any representations received from the Assembly. Amendment No. 341, and the remaining amendments in this group, are consequential. I beg to move.

Lord Roberts of Conwy

I am delighted to hear that the Government have decided to review their original proposals, not least because I can tell the Minister, who I know is always anxious to receive information about what goes on in the Principality, that there are many people in Wales—indeed, many organisations, ranging from the National Farmers Union and the Farmers Union of Wales to the Country Landowners' Association, and so on—who are relying upon the Assembly in some way to correct anything that may be faulty as far as they are concerned in primary legislation passed by this Parliament.

The Government are absolutely right to say that they will consult the Assembly. The question arises as to what form this consultation will take. We know that devolution is a comparatively new development, that matters have not been finalised and that many developments are still open, as it were, to further development. However, there is the question of the form that the consultation will take. The Assembly is an executive body, but it has a Cabinet. It is also driven by a committee system. It is not clear to me as to who will be consulted. Will it be the Labour-led Cabinet, or the committee system, which consists of members of other parties too? Some Members of the Committee will be aware that that Cabinet may well change because there is a proposal to include the Liberals in it. That would make it into a different coalition from the system that we have had before.

This matter concerns who will be consulted. Whose views will be taken into account? We hope that a variety of views from different parties in the Assembly—I repeat that the Assembly is an executive body—will be heard and reported upon. Amendment No. 349 intrigues me. It reads: Where the Secretary of State lays before Parliament the draft of an instrument containing regulations … he shall also lay before each House of Parliament a document giving details of the consultation". I have spoken of that consultation and expressed the hope that that document will contain a variety of views as befits consultation with an executive body, which is what the National Assembly for Wales is, unlike the Scottish Parliament. As I say, we hope to see a variety of views expressed as a result of that consultation.

However, the amendment further states, and setting out any representations received from the Assembly". We know that representations can mean objections. What will happen if objections are expressed by different members of the Assembly and different political parties represented in the Assembly, which is an executive body as I have said? At the end of the day, will the Government override the consultation and the representations received from the Assembly? It seems to me that that is a crucial point. I know that it is not easy for the noble Baroness to reply immediately, but I know that she will do the best she can, which is always more than acceptable. There is a real question in my mind as to what happens if the Assembly makes representations that are not consistent with the wishes of the Government. At the end of the day, do the Government have the power to override the Assembly and, in other words, tell it what to do?

Lord Jopling

There is another aspect of this group of amendments which bothers me. My concern stems from the remarks of my noble friend Lord Roberts. These amendments give more powers to the National Assembly for Wales. Clause 48 refers to restricted byways. When there is a proposal to amend existing legislation, what happens about highways which cross the border between Wales and England? The National Assembly for Wales may well have strong views about what should be done with regard to amending existing legislation on a restricted byway on the Welsh side of the border. Nothing in this group of amendments gives a duty to those concerned on the Welsh side to consult with people on the English side where the byway may pass from Wales into England.

The Government are amending the Bill by this group of amendments. There should be provision for consultation and attempts to reach agreement between the bodies of the National Assembly for Wales which consider these matters and the relevant authorities on the English side of the border. Nothing in this group of amendments deals with that point.

It is an important matter. I understand that difficulties may arise on this point in practice. Therefore I hope that, when the Minister replies, the noble Baroness will explain what will happen with a restricted byway which crosses from Wales into England.

9.15 p.m.

Baroness Byford

I take the points raised by my noble friends Lord Roberts and Lord Jopling. One could well have two different systems along the same pathway. I am sure that that is not the Government's intention.

I have two simple questions. As regards the proposed consultation, is there any time schedule to which the Government are working? How long will the various bodies have to consult? When they have consulted, to whom do they come back? It is not clear in this clause.

My noble friend raised the question of the make-up of the National Assembly for Wales. He knows far more about it than I shall ever attempt to know. It is important that we understand who at the end of the day makes the decision on behalf of that assembly. Again, that is not clear.

Mine are simple and minor points. If one is going to consult again, how long will the consultation last? When the bodies have consulted, to whom do their conclusions come back? Who can override their views? Do their conclusions end up with the Secretary of State? These are practical issues on which we should be grateful for guidance.

The Lord Bishop of Hereford

I declare an interest as the current president of the Offa's Dyke Path Association. The noble Baroness, Lady Byford, says that there might be problems. There are considerable problems as regards who is responsible for upkeep or who takes certain financial or administrative responsibilities, as the Offa's Dyke path meanders between England and Wales. Some local authorities are more generous than others. Some have their own staff to undertake maintenance and upkeep. Others devolve responsibility to different bodies. It is confusing for the lengthmen, the archaeologists and others concerned with the upkeep of this path. I believe that the Bill will increase the number of cases where that confusion already exists. I fear that it will become worse.

Baroness Farrington of Ribbleton

Perhaps I may say to the noble Lord, Lord Jopling, and the noble Baroness, Lady Byford, that the answer about where the final decision is taken at the end of the process is, here in Parliament, through the process of affirmative orders being laid before Parliament, except in those areas where Parliament has decreed that it would be entirely compatible with the powers and remit of the National Assembly for Wales for the assembly to make those decisions.

Cross-border difficulties, including the issue that the right reverend Prelate the Bishop of Hereford raised, relate to two types of devolution: the historical devolution of powers and duties to local authorities in England and Wales; and the historical situation in Wales combined with the recent devolution to the National Assembly. There are always difficulties over whether certain features should be taken away from local government completely and transferred to a single body, cutting out local views. I am sure that among your Lordships, as elsewhere, there is a range of views, from those who argue that the contribution of local government has led to marked innovations and improvements in services—albeit on a differential basis, because different authorities have been involved—through to those who believe that the same pattern should be applied everywhere, even if it means forgoing innovation. We shall have to continue to look at that.

The noble Lord, Lord Jopling, asked about what happens when borders are crossed. The situation is very little different from that of the M4, the bridges that cross from England to Wales or the roads that cross from England to Scotland. Many decisions will have to be taken on how this wholly new category of highway should be treated under various enactments and whether particular provisions should apply. We need adequate consultation on the basic principles. Joint agreements will be needed on the policies that will apply on both sides of the border.

The Government and Parliament should retain those powers that could give rise to amendments to a wide range of legislation and those that could affect non-devolved areas, such as possible amendments to the criminal law relating to road traffic and highways.

The noble Lord, Lord Roberts of Conwy, asked about who speaks for the Assembly and kindly offered to bring to the House, and to me in particular, news of what was being said in the Principality. I am extremely grateful to him, but I assure him that I have my lines of communication and I spend quite a lot of time in the Principality. People in the Principality never hesitate to put their views across.

The Government consult the First Secretary. Tempting though the noble Lord's suggestion is that I ought to start to discuss, on behalf of the Government, how the First Secretary consults the Assembly and distils the view of the majority, I fear that this may be where angels fear to tread. The noble Lord and I agree totally that if the views of the majority of Members of the Assembly, which any First Secretary would be wise to heed when speaking for the Assembly, did not represent the views of all Members, those whose views were in a minority would not be backward in making certain that we were aware of them in looking at the orders before Parliament.

However, I believe that, in suggesting that government should become involved in assessing the minority views within the Assembly, the noble Lord, Lord Roberts, tempts me down a primrose path that leads the wrong way. I fear that he is aware of that. I am sure that he would not have raised the question in quite that way had the majority view been that of the Conservative Assembly Members. Perhaps I am wrong and malign the noble Lord.

Baroness Byford

Perhaps the noble Baroness will give way. I fear that I cannot let that pass. I believe that the question raised by my noble friend is genuine. Obviously, if the Government want consultation to take place then the First Secretary, whose responsibility we now know it will be, will have to take into account the many varying views. I know that my noble friend will speak for himself; he has never been backward at doing that. However, speaking as an amateur by comparison, I am struck by the thought that he may find himself in a dilemma. He may well find himself wanting to follow one path, whereas the majority view may want to follow another.

Baroness Farrington of Ribbleton

That is the structure of devolved government which applies in Wales. The First Secretary is accountable to other Members of the Assembly and to the people of Wales for the way in which he achieves that. It is not for us to comment on the process whereby he achieves a way of speaking for the majority view and for the Assembly in those circumstances. I believe that an attempt is being made to put forward the view that it will not be possible to achieve consensus and agreement. We do not accept that that is likely.

I was asked about time consultation. The time taken on consultation is the same as in other areas. It is impossible to lay down in legislation the type of detailed constraints on time for consultation that I believe were sought in the question. We shall try to ensure that we are fair and that common sense is used. Ultimately, it will be for Parliament to judge that adequate participation has taken place.

I believe that I have covered the points raised by Members of the Committee. If I have not, I have no doubt that they will press me further. I hope that the Committee will agree the amendment.

Lord Northbrook

Before the Minister sits down, perhaps I may seek clarification. I may have misunderstood what she said with regard to representations received from the Assembly. Did she say that she would not include the minority views or did she say that the whole ambit of views would be taken into account?

Baroness Farrington of Ribbleton

I said neither; I said that the form in which the views of the Assembly were expressed was a matter for the Assembly. However, I said that I had no doubt that, were the Assembly majority view to be expressed and for there to be an alternative minority view, my experience of politicians in Wales leads me to believe that people in both Houses would be in little doubt that a further minority view existed. I say that based simply on experience. The formal and only position that the Government can take is to listen to the First Secretary speaking for the Assembly. Does that clarify the matter?

9.30 p.m.

Lord Roberts of Conwy

I am sorry if the noble Baroness thought that I was seeking to mislead her. I was simply trying to invite her on to my open boat, which is the byway open to all traffic, when it conies to discussion of the Welsh Assembly and its future.

Baroness Farrington of Ribbleton

I fear that the noble Lord, Lord Roberts of Conwy, had his hands on both of the oars.

Lord Roberts of Conwy

I shall not pursue that line. The noble Baroness said that the ultimate decision would be taken here in Parliament. I understand that. It is shorthand for the fact that the ultimate decision lies with the Government and the Government's decision being approved by Parliament. I have no objection whatever to that.

On the matter of consultation, the Minister said that the consultation was limited to consultation within government, in effect, and with the First Secretary of the Welsh Assembly. I suggest to the Minister that that is an extremely autocratic procedure. It is hardly democratic if all that has to happen by way of consultation is for the Secretary of State to talk to his good friend the First Secretary of the Welsh Assembly. And that amounts to consultation which is then reported to Parliament! I beg to differ and say that that is a travesty of consultation.

I certainly do not want to involve the Committee in further detailed discussions of this point. But the power resides in the Assembly, which is an executive body with its own Cabinet and committee system and so on. It is rather like a super-county council. That is where the power lies. To say that consultation on the part of the Secretary of State is sufficient if it is limited to the First Secretary is, to my mind, really begging the question.

I fire this shot across the bows of our boat: there are many people in Wales, particularly in the academic world, who now believe that the Assembly is inadequately equipped and that it should have legislative power. I warn the Minister that the current position, when we say that consultation involves simply the First Secretary, is power to their elbow. I am sorry to have mixed my metaphors but what mean to say is that our boat may very well have not only a shot across the bows but also have a shot amidships if that message gets home.

I do not want to take the matter too far but the Minister will know that there has been discussion about a protocol which would govern the relationships between the Assembly and government and Parliament here at Westminster. We know that that protocol has been in draft for a number of months but it has not been finalised. The Government control the Assembly at the moment, but they may well not do for long because they will be dependent on the Liberal Democrats if their deal goes through. The Government control it now, and they should finalise that procedure whereby the Assembly is consulted by the Government and its views represented in this Parliament at Westminster.

Baroness Farrington of Ribbleton

First, the protocol governs the way the consultation occurs between the two bodies; it is not about the internal decisions. I assure the noble Lord, Lord Roberts, that I did not say that the Government simply consult the First Secretary. If I was heard to say that, perhaps I expressed myself badly. I said that the Government consult the First Secretary: it is the responsibility of the First Secretary and the Assembly to determine the way in which the views of the Assembly are expressed by the First Secretary.

The noble Lord referred to the issue of who controls the Assembly. I find the use of the term "control" slightly old-fashioned. I prefer "administer" or "govern". I do not like concepts of control. The decisions that are taken within the Assembly, such as who forms the executive, who is accountable and how people are consulted, are a matter for the First Secretary. I would certainly not advocate any First Secretary being told by Westminster how to approach that; even less the Members of the Assembly being told how they formulated their views.

The question of minority views is a matter for the procedure and process adopted for the internal consultation within the Welsh Assembly as to what their views are. That is a matter for them. The only point I made is that I believe that the least helpful way would he for us to speak from here about the way the Welsh conduct their affairs within their Assembly.

Lord Roberts of Conwy

Before the noble Baroness sits down, perhaps she could try to answer a key question which has arisen in the course of our debate. Let us suppose that the Assembly takes a quite different view from the Government in its representations which this place and the Government will receive from the Assembly. Who shall prevail?

Baroness Farrington of Ribbleton

That will depend on the circumstances and on the judgments which have to be made. Some issues on which the Assembly will be consulted are matters which are wholly reserved to Westminster. I refer, for example, to criminal law. It is possible that the Assembly will have a view on that. There will be other matters that are totally within the powers and jurisdiction of the Assembly and other matters on which there will have to be a matter of common agreement.

I refer the noble Lord, Lord Roberts, to the fact that the same applies to points of contact in the north between England and Scotland where the jurisdiction and responsibility for roads are different both sides of the border. That is a feature of devolution. Those that support it welcome it and have faith in the process. Those who wish to undermine it do not have the same view.

Perhaps I may ask the noble Lord whether all these questions would be put were it to be the vote of the people of Wales that the majority of Members of the Assembly were Conservatives.

Baroness Byford

In responding to my question on the time factor, the Minister indicated that that would be flexible. I understand that the normal procedure is a minimum of eight weeks. Perhaps the Minister could confirm that. In view of the difficulties about which the right reverend Prelate the Bishop of Hereford spoke earlier, I am slightly anxious that, should the Assembly decide to keep the time factor to a minimum, that will not be long enough. There are present ongoing problems, let alone problems which may occur in future. I wonder whether she could clarify the position.

Baroness Carnegy of Lour

Before the noble Baroness replies, it is precisely because of what might happen if the majority opinion in the Welsh Assembly was different to the majority in Parliament, that my noble friend's questions are so important. The problem arises if there is a disagreement. It seems that we are setting up a confrontational situation if the Welsh Assembly and Westminster have different political majorities. So, with great respect, the noble Baroness ought not to talk as she did.

Baroness Farrington of Ribbleton

I am sorry if the noble Baroness, Lady Carnegy of Lour, thinks that. I believe the opposite to be the case. It is important to recognise that devolution exists. It is important also to recognise that the Government and those who support devolution expect there to be reason on both sides and that people will seek to agree.

I was not implying in any way that, were the majority of the Members of the Assembly to be Conservative, it would be impossible to reach agreement with them. I find the Welsh to be reasonable, even when they unreasonably vote Conservative. It is extremely rare for the Welsh to vote Conservative but they have been known to do so.

In response to the noble Baroness, Lady Byford, with regard to the issue of time and consultation, her reference is accurate in the majority of cases and in this case it would be a formal process laid down by Parliament. As she rightly said, it has a time-scale and we want to retain enough flexibility to ensure that the First Secretary for the Assembly was satisfied that, covering a specific period of time, he had had adequate time to discuss matters within the Assembly. Therefore, we would not want to lay down an absolutely rigid time-scale because it could be during a summer period or something of that nature.

This has been an important debate. I fear that those of us who support devolution are still experiencing a gap from those who are not totally confident in the outcome.

Lord Roberts of Conwy

Perhaps I may just make the point that I am not concerned with party political banter across the Floor of this Chamber. However, I am concerned with the constitutional position. Members on the Benches opposite should be similarly concerned.

Baroness Farrington of Ribbleton

I am sorry if anything I said seems to imply that I do not take this matter seriously; I do. I merely stress that internal consultation within the Assembly is not a matter for Westminster; it is a matter for the Assembly.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendments Nos. 342 to 349: Page 29, line 12, leave out ("subsection (1)") and insert ("this section"). Page 29, line 14, at end insert— ("relevant Welsh provision" means a provision contained —

  1. (a) in a local or private Act passed before or in the same Session as this Act and relating only to areas in Wales, or
  2. (b) in any subordinate legislation which was made before the passing of this Act and which the National Assembly for Wales has power to amend or revoke as respects Wales.").
Page 29, line 14, at end insert— ("(2A) In exercising the power to make regulations under subsection (1), the Secretary of State—
  1. (a) may not make provision which has effect in relation to Wales unless he has consulted the National Assembly for Wales, and
  2. (b) may not without the consent of the National Assembly for Wales make any provision which (otherwise than merely by virtue of the amendment or repeal of a provision contained in an Act) amends or revokes subordinate legislation made by the Assembly.
 (2B) The National Assembly for Wales may submit to the Secretary of State proposals for the exercise by the Secretary of State of the power conferred by subsection (1)."). Page 29, line 15, leave out ("this section") and insert ("subsection (1)"). Page 29, line 16, leave out from beginning to ("even") and insert ("relevant provision"). Page 29, line 17, at end insert— ("(3A) As respects Wales, the National Assembly for Wales may by regulations—
  1. (a) provide for any relevant Welsh provision which relates —
    1. (i) to highways or highways of a particular description,
    2. (ii) to things done on or in connection with highways or highways of a particular description, or
    3. (iii) to the creation, stopping up or diversion of highways or highways of a particular description,
    not to apply, or to apply with or without modification, in relation to restricted byways or to ways shown in a definitive map and statement as restricted byways, and
  2. (b) make in any relevant Welsh provision such amendments, repeals or revocations as appear to the Assembly appropriate in consequence of the coming into force of sections 43 to 46 or provision made by virtue of subsection (1)(a) or paragraph (a).").
 Page 29, line 19, after ("made") insert ("by the Secretary of State"). Page 29, line 21, at end insert— ("(5) Where the Secretary of State lays before Parliament the draft of an instrument containing regulations under subsection (1) in respect of which consultation with the National Assembly for Wales is required by subsection (2A)(a), he shall also lay before each House of Parliament a document giving details of the consultation and setting out any representations received from the Assembly.").

On Question, amendments agreed to.

Clause 48, as amended, agreed to.

Clause 49 [Extinguishment of unrecorded rights of way]:

Lord McIntosh of Haringey moved Amendment No. 350: Page 29, line 30, after ("All") insert ("public").

The noble Lord said: In moving Amendment No. 350, I shall speak also to Amendments Nos. 351 to 356. These are technical amendments relating to Clause 49 which provides that footpaths and bridleways created before 1949 which have not been recorded on definitive maps by the cut-off date specified in Clause 52 shall be extinguished. Amendment No. 350 would ensure that no private rights of way—rights of way held by individuals or groups of individuals rather than the general public—are extinguished by Clause 49. It is public rights of way which definitive maps seek to record.

Amendments Nos. 351 to 354 relate to the case where a way shown on a definitive map as footpath, bridleway or restricted byway may have higher rights over it. Clause 49 also provides for the extinguishment of any such higher rights which were created before 1949 but which have not been recorded by the cut-off date. In other words, if a highway shown on a definitive map as a bridleway has pre-1949 vehicular rights over it, those vehicular rights will be extinguished on the cut-off date if the definitive map has not been modified to show the way as a byway open to all traffic. The bridleway rights would remain.

Amendments Nos. 351 to 354 deal with the situation where unrecorded higher rights exist over a highway which, although still shown on a definitive, map on the cut-off date, has been so altered as to be no longer eligible for recording as a right of way. The amendments would ensure that those higher rights would not be extinguished. For example, a highway which is, in fact, a carriageway but which is shown on a map as a bridleway may not be capable of being recorded as a byway open to all traffic because it does not meet the definition of BOAT in the Wildlife and Countryside Act. It is not the function of definitive maps to record all vehicular highways, only those which are mainly suitable for walkers and horse riders. Clauses 49 to 52 apply only to highways which are required to be recorded in definitive maps. We do not want to extinguish rights which cannot be so recorded.

Amendments Nos. 355 and 356 clarify the intention that, for the purposes of Clause 49, a footpath or bridleway which was created before 1949 shall be treated as such, even though it may have been diverted, widened or extended after that time. I beg to move.

On Question, amendment agreed to.

9.45 p.m.

Lord McIntosh of Haringey moved Amendments Nos. 351 to 357: Page 29, line 39, leave out from ("over") to ("is") and insert ("a bridleway, restricted byway or byway open to all traffic which"). Page 29, line 41, leave out from ("along") to ("is") in line 42 and insert ("a bridleway, restricted byway or byway open to all traffic which"). Page 29, line 44, leave out from ("over") to ("is") in line 45 and insert ("a restricted byway or byway open to all traffic which"). Page 30, line 1, leave out from ("over") to ("is") in line 2 and insert ("a byway open to all traffic which"). Page 30, line 7, leave out from ("whether") to ("for") in line 11 and insert ("any part of a highway was on 1st January 1949 a footpath or bridleway, or (b)") Page 30, line 12, leave out from first ("over") to ("was") and insert ("any part of a highway"). Page 30, line 25, leave out subsection (10).

On Question, amendments agreed to.

Clause 49, as amended, agreed to.

[Amendment No. 357A not moved.]

Clause 50 [Excepted highways and rights of way]:

Lord McIntosh of Haringey moved Amendment No. 358: Page 30, line 38, leave out ("not comprised in the same") and insert ("constituting or comprised in another").

The noble Lord said: In moving Amendment No. 358, I shall speak also to Amendments Nos. 359 and 360. These are technical amendments to Clause 50 which provides exceptions to the circumstances in which Clause 49 will operate to extinguish certain historic rights of way. Among these are footpaths and bridleways which run beside the carriageway.

As the Bill presently stands, it suffers from the minor ambiguity that "carriageway" may not mean a carriageway which is a highway. Amendment No. 358 is designed to put this right.

Amendment No. 360 is designed to simplify the language of Clause 50(5). Amendment No. 359 corrects a minor error in Clause 50(3)(a) where reference is made to "excluded highway". It should state "excepted highway". I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 359 and 360: Page 31, line 24, leave out ("excluded") and insert ("excepted"). Page 31, line 32, leave out ("the whole or part of a way") and insert ("land").

On Question, amendments agreed to.

Clause 50, as amended, agreed to.

Baroness Byford moved Amendment No. 360A: After Clause 50, insert the following new clause—

    cc116-48
  1. VEHICULAR RIGHTS 15,729 words, 2 divisions