Countryside and Rights of Way Bill

HL Deb 11 October 2000 vol 617 cc337-404

3.26 p.m.

Lord Whitty

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:

Baroness Byford moved Amendment No. 371: Page 62, line 26, leave out from ("authority") to ("the") in line 28.

The noble Baroness said: In moving Amendment No. 371, I shall speak also to Amendment No. 384.

We begin today where we left off on Monday night—that is, considering the difficult issue of crime in both our rural and urban areas. The Government have amended their original Bill to remove the stipulation that a right of way subject to a proposal to extinguish or divert it for the purposes of crime prevention had to be located in an urban area. At Committee stage in another place, the Minister was persuaded by the strength of argument to change the wording from "located in an urban area" in the original Bill to "a designated area" in this Bill. That is welcome—apart from the bureaucracy involved, but I shall come back to that later.

These amendments seek to remove the provisions in Sections 118B(1)(a) and 119B(a) of the Highways Act 1980 which require the Government to go through the lengthy and bureaucratic process of designating areas where the powers can be used before they can be so used. This would enable a measured and speedy response to problems and save on costs.

In any case, the Secretary of State is ill placed to determine in which areas the powers might best be used. Local highway and police authorities are surely closer to and have a far greater knowledge of their own locality. They should be able to come to their own decision as to whether or not a particular route should be closed or diverted. Each case should be treated on its merits and not depend on an arbitrary designation by central government.

Last weekend, the Sunday Times led with an article headed, Hidden explosion in rural crime revealed".

The report shows that the true level of crime in some parts of the country is up to six times higher than is indicated by the Government's published figures. A second report based on a survey undertaken by Experian of some 50,000 people, predicted the five areas where burglaries are expected to rise the fastest. They are: Dyfed/Powys—where a rise of up to 20 per cent is predicted; and a rise of between 6 and 16 per cent is forecast for North Wales, Cumbria, North Yorkshire and Cheshire. The report reveals that in Staffordshire three times as many people had experienced burglary as had reported it. In Hampshire, the figure was nearly four times as many, and the figure for Wiltshire was similar.

3.30 p.m.

Lord Harris of Greenwich

Perhaps I may ask the noble Baroness a question. Is she aware that the British Crime Survey has shown over many years that the level of actual crime is higher than the apparent figures published by local police forces? There is nothing new in the point that the noble Baroness is making.

Baroness Byford

No, indeed. But the Sunday Times article referred to both sets of figures. The noble Lord's interjection was right, but the report to which he alludes indicates smaller increases in the recorded crime figures than does the Experian survey.

The noble Lord has anticipated my remarks—namely, that many of us who live and work in the countryside have experienced what some might regard as smaller problems which are not necessarily reported to the police. I can confirm that from my own experience. At home—which I believe would fall into the new phraseology of "curtilege"—we have twice had occasion to ask people to leave the property, which they should not have been on. The first time, they left; the second time, they came back and torched the barn. Obviously, on the second occasion the fire brigade was called, but we did not report the matter to the police. I suspect that the same is true of many other farmers. So although a crime had been committed, it was not recorded by the police. The noble Lord is right: it is common knowledge that there are increases in crime.

These amendments are important because they place the responsibility of closing footpaths very much on the locality; they place it with the local highways and police authorities. I beg to move.

Earl Peel

I support my noble friend in these four amendments. Speaking first to Amendments Nos. 371 and 384, I can see no logic in the Secretary of State being involved in cases of closure or diversion of footpaths. It seems to me that either there is a problem and the most appropriate way of reducing crime is by closing or diverting the path, or there is not a problem. Frankly, I do not see why the Secretary of State should involve himself in such matters. Furthermore, these are local matters and are best dealt with by the police and the local authorities. I sincerely hope that the Government will look seriously at these two amendments.

Baroness Carnegy of Lour

I hope that the Committee will support my noble friend on this point. It sounds like a small matter, but it is in fact a rather large one. Anywhere in the country, a highway may make it more possible than it would otherwise be for crime to be committed. It could happen anywhere. It is ridiculous for the Secretary of State to have to say where that is more, rather than less, likely. Crime crops up anywhere, and highways are places where people who want to commit crimes very often gain access. The Government have an opportunity to lessen the appalling centralisation that is apparent in the Bill and to make it possible for local people to decide what should happen on their footpaths when their property is threatened by crime.

Baroness Miller of Chilthorne Domer

Given the way in which the noble Baroness, Lady Byford, explained her amendment, it sounded as though, were it to be passed, the local parish council would be able to have an enormous say in what would happen to the paths in relation to crime. But as I understand the clause as drafted, the decision would still be that of the highway authority which, in the case of many of the authorities quoted by the noble Baroness, may cover a vast rural county; and the parish council is nearly as remote from its county as is the Secretary of State. Nevertheless, I do not feel that these amendments would necessarily bring the matter much closer to the parish council.

More seriously, the noble Baroness's amendment removing the words, which would otherwise disrupt the life of the community"—

Baroness Byford

I believe that that amendment has been de-grouped. I have spoken to Amendments Nos. 371 and 384, which stand on their own. I do not think I have made a mistake.

Baroness Miller of Chilthorne Domer

I thank the noble Baroness. I shall save my comments on the matter until later. The Minister indicates that the amendment is included in the grouping.

Baroness Farrington of Ribbleton

No indication has been given that the grouping has changed. The noble Earl, Lord Peel, spoke to amendments in this group. It would perhaps be helpful to inquire as to whether any other cases of de-grouping are intended as it would make for a more orderly debate.

Baroness Byford

I apologise to the Committee. It is terrible to get matters wrong in moving the first amendment. I should have spoken to Amendments Nos. 372 and 385 at the same time. Is that correct?

Baroness Farrington of Ribbleton

Yes.

Baroness Byford

With the leave of the Committee, perhaps it would be helpful if I spoke to those amendments as well. It is my mistake.

Perhaps I may turn to Amendments Nos. 372 and 385. Proposed new Sections 118B(1)(a) and 119B(1)(a) would provide the powers to close or divert paths for the purposes of crime. However, these powers can only be used in relation to crime, which would otherwise disrupt the life of the community". In practice, that test can be viewed in only two ways. First, I suggest that it would be impossible to satisfy that test, because someone could always be found among user groups—and not necessarily those based in the community concerned—to argue that particular crimes did not disrupt the life of the community; on the other hand, the test could be set aside every time because it could be equally well argued that every crime disrupts the life of the community and it certainly disrupts the life of the person affected and makes neighbours more wary as to the possibility of crime being committed. Accordingly, the test does nothing to assist the highways authority in determining whether to exercise its powers and we suggest that the provision should be deleted. Highway authorities would then be free to exercise their discretion to decide that paths should be extinguished or diverted simply in the interests of preventing or reducing crime.

The second two amendments to which I have spoken relate to a considered value judgment. I wonder whether we should be making legislation where it is reliant on a value judgment. I commend the amendments to the Committee.

Baroness Miller of Chilthorne Domer

Perhaps I may continue with the point that I was making. It is fundamentally important that some test is put in place. Just because we are talking about footpaths and bridleways, which people may think of as minor rights of way in communities, they are no less important than the roads network. If we were to begin talking about closing roads where a local authority arbitrarily decided that it was able to do so without a rigorous test in place, there would be far more objection.

I hope that in the future the footpath network will be more widely used. We certainly wish to see car use reduced. I am afraid that this kind of amendment might result in pressure being put on councillors to start closing the footpaths network without due test, which we should strongly resist. I have been a victim of three break-ins during the past year-and-a-half. There are two footpaths situated close to my house, but I should still say that those break-ins occurred due to the proximity of the road, not the footpaths. However, if I were so minded, I could equally claim that they happened as a result of criminals walking down the footpaths, though it would be hard to prove. This debate needs to take place. I suggest that the wording in the Bill as it stands would be a good test for introducing that debate.

Earl Peel

I support my noble friend's amendment. Quite frankly, I believe that these matters are best dealt with at a local level. That is the main point. The difficulty that we have with this part of the Bill is that we are not sure how to define the term "community". Are we talking about 50 per cent of the local population or are we simply talking about one or two people? For example, if a collection of houses situated somewhat apart from a village had been subjected to a series of burglaries, would that constitute disruption to the life of the community? I do not know the answer. But, conversely, if those two houses were, say, half a mile away from the village, the inhabitants could no doubt be described as "the community". In such circumstances, it is possible that another judgment would be forthcoming. This seems to me to follow the lines of the arguments that 1 advanced in respect of Amendments Nos. 371 and 384. As my noble friend said, let us not put unreasonable conditions on this very important part of the Bill. We should allow local knowledge and common sense to prevail.

I have one question for the Minister. If there is a footpath that runs through access land, which under the Bill is open to general rights by the public, clearly it would be possible to close the footpath under these provisions. However, I do not believe that there are any provisions under either Part I or Part II of the Bill for the closure of access areas for similar matters. If that is not the case, it seems to me that that is something to which the Minister ought to give serious consideration.

Lord Renton

I should like to follow on from my noble friend's interesting point. As far as I remember, the smallest area contemplated by the law is a parish. Although some parishes are fairly large, everyone living in that parish is "a community".

3.45 p.m.

Lord Greaves

I very much regretted not being able to be present during the Committee proceedings on Monday when similar matters were discussed. There is widespread concern that many of the provisions of Part II of the Bill will reduce, rather than expand, the opportunities for people to walk on footpaths and ride on bridleways in the countryside. It is a matter of debate as to whether that is right or wrong. Indeed, the issue was debated on Monday.

Attempts such as those contained in these amendments to provide greater opportunity for restriction can only increase that concern. The question has been asked as to why the Secretary of State should be involved. I am a localist on many issues. However, if such an issue is left only to local opinion, half of the people affected by the outcome will not be involved because they are not local by definition. The rights of way network in the countryside is used by local people but it is also used by people from outside the immediate locality. If we leave this to be dealt with at a very local level, we risk a hue and cry in many places. People will seize on this part of the Bill when crime occurs. Unfortunately, crimes occur everywhere from time to time. When they do, people will immediately start petitions to close footpaths. There is a risk that that will result in the build up of campaigns in rural areas and on the fringes of urban areas for the wholesale closure of historic rights of way that have existed for many years.

It may be necessary to consider such a risk as regards certain areas. I believe that my noble friend Lady Scott put forward our concerns. Indeed, I think that we should prefer not to have this provision in the Bill. However, if it is to be included, there must be safeguards to prevent people at a local level misusing it in such a way that all the stated aims of the Bill to enhance the rights of way network in the countryside will be affected.

The single main factor in the growth of crime in rural areas as regards highways is not footpaths; it is the development of the motorway network and fast roads which allow people to travel to areas quickly, do their worst and get out again. We all know that that is the case. No one is suggesting that we should close down motorways. If we want to tackle crime, let us do so. We should not blame it on the availability of rights of way.

Lord Whitty

I am not persuaded by the arguments in favour of these amendments, largely for the reasons outlined by the noble Lord, Lord Greaves. We are talking about rights of way in both urban and rural areas. As I said during Monday's debate, our intention is that these new Sections 118B and 119B to the 1980 Act should be used sparingly to tackle serious problems of crime. They should not be used as an excuse for restricting the availability of existing and often historic rights of way.

It is not a question of the Government being soft on crime; nor are we complacent. We are concerned about the rise in crime in both rural and urban areas. But the key question is: what is the right mechanism for tackling crime? There are many ways in which crime should be more effectively tackled. Surely the closure of a highway is the measure of last resort. A right of way should be closed only when the threats posed by its availability to criminals are greater than its benefit to the public; in other words, the public interest in reducing crime has to be weighed against the public interest in losing a right of way. Indeed, many people rightly argue that in some cases the more people who use a highway or a right of way, the less likely crime is to occur.

The Government introduced these provisions because we stood by our belief that there are situations where closing or diverting a right of way could be justified. However, we do not wish to see that generalised. Indeed, we would need to find some fairly robust tests before we would resort to such a measure. The Government responded in another place to the arguments that the powers should not be confined to urban areas, as originally provided. We indicated then that there might be settlements and other places within rural areas where the use of such powers may well be necessary. Nevertheless, we regard such places as being relatively few. Therefore, these powers should be a last resort option.

Amendments Nos. 372 and 385 would remove one of the requirements that such powers should only be used when criminal activities are widespread in an area and are disrupting the local community. Unlike the noble Earl, Lord Peel, and the noble Baroness, we are not talking about relatively isolated or even sporadic criminal activity; we are talking about a systematic use of a highway, a byway or a right of way for criminal purposes. The effect of a single incident may well cause concern but it is not sufficient reason for closing a long-standing right of way. After fairly extensive debate in another place, we placed these provisions in the Bill and they were welcomed at that time. I believe that they strike the right balance.

I turn now to the query from the noble Earl, Lord Peel, about the rather different situation in relation to access land. If anyone is engaged in criminal activity on access land, criminal sanctions apply. I refer to the laws of trespass and the criminal law. Those sanctions will apply on that land. However, with regard to rights of way, we are dealing with a different situation. I do not think that the two situations are analogous. I hope that, for the reasons I have spelt out, the noble Baroness will not press the amendments.

Lord Peyton of Yeovil

I do not think that I heard the noble Lord refer to the involvement of the Secretary of State. If he did so and I missed it, I willingly give way. I belong to a legion of people who do not credit successive Secretaries of State with omniscience, or even exceptional wisdom. They are more than capable of making mistakes and, they take quite a long time in making them. It is a common habit of successive governments not to have sufficient confidence and trust in local authorities. Over a long term that has the effect of weakening local authorities when our desire should be to strengthen them. I hope that the noble Lord will at least refer to the involvement of the Secretary of State. He certainly has not as yet said anything to justify it.

Lord Whitty

I said that the use of these provisions should be subject to fairly robust criteria and procedures. The procedure in this case seems to us to require referral to the Secretary of State. I agree that Secretaries of State, with certain obvious exceptions, are not omniscient, but nor are county councils. The point made by the noble Baroness, Lady Miller, is also apposite here in that a temporary panic in relation to a particular crime or wave of crime could lead to local councils engaging in the closure of significant numbers of rights of way. That would be wrong. That is why we say that the matter should not be left simply to local decision. Rights of way should be closed for that reason only in exceptional cases. That is why we think that the Secretary of State should be involved in the matter and why we believe that the robust tests set out in the Bill would meet that point.

Baroness Carnegy of Lour

I beg the Minister to put himself in the shoes of people in a local community. If they consider that a footpath or a bridleway facilitates the commission of a series of crimes, they will discuss that matter within the local community. The valid arguments which the noble Baroness, Lady Miller, deployed will also be deployed in the local community. The incidence of crime on a footpath situated alongside a main road will be discussed. The local community may decide that they want to close a footpath. The Secretary of State, with Olympian detachment, may say that he will not allow it, as he thinks that he knows better than the local community. These are matters for the relevant localities. Of course, people from outside the immediate locality who want to use the footpath must be involved in the discussions, as the noble Lord, Lord Greaves, said. However, these are nevertheless local matters. I am surprised to hear the arguments that have been put forward by the Liberal Democrats as they invented community politics.

Baroness Miller of Chilthorne Domer

I had avoided making party political points until this moment. However, I am worried about those Conservative county councils who might use the amended provisions—if the amendments are accepted—to close the footpath network. The next group of amendments seeks to remove the words "high levels of" and "persistent" with regard to crime. If those amendments are accepted, those county councils could close the rights of way network for virtually any reason.

Baroness Byford

I am extremely surprised at the noble Baroness's final comment, which I believe she may live to regret.

I thank my noble friend Lord Peyton for his comments as he touched on the very matter that I intended to mention. The Minister's response to those comments rather suggested that the Government do not have any trust in local authorities and therefore feel that the relevant decision must be taken by the Secretary of State. I always took the view that the provisions we are discussing would be used sparingly. There is no disagreement between us on that. We realise that they are measures of last resort. However, in areas where crime is a big problem, I believe it is right to have a power of footpath closure. The noble Lord, Lord Greaves, said that such closures could affect people from outside the immediate area. I shall read Hansard carefully tomorrow, but I thought that he said he could not trust local people in this matter. That is an extraordinary statement, if he did say that. That makes the position of the Liberals on this matter even more confusing.

I thank those Members of the Committee who have spoken. I hope that the Minister has realised the strength of feeling that exists on this matter. I shall not press the amendment now but I believe that the Government would be wise to reconsider the matter. 1 beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 372 and 372A not moved.]

Baroness Byford moved Amendment No. 373: Page 63, line 3, leave out ("high levels of").

The noble Baroness said: In moving Amendment No. 373, I wish to speak also to Amendment No. 386.

The proposed new Sections 118B(3)(a) and 119B(3)(a) of the Highways Act 1980 provide that powers to close or divert paths for the purposes of crime prevention can be used only in relation to highways that are affected by high levels of crime".

The proposed amendments would remove that unnecessary test. How do the Government anticipate judging what is or is not a high level of crime as that is not spelt out?

The Government seem intent on fettering what should be flexible and responsive powers to tackle crime related to rights of way with tests which put unnecessary barriers in the way of authorities seeking to use these powers. We accept that the powers will not be used on a regular basis. The requirement to show that premises adjoining or adjacent to a highway are affected by high levels of crime is another example. How will "high" be defined? Will "high" take account of the differing geographical incidence of crime both between and within authorities? I beg to move.

Lord Renton

The expression "high levels of crime" is not defined in the Bill, so far as I am able to discover. It is a vague expression. Some people would say that more than one theft constitutes a high level of crime. Other people believe that that constitutes a murder or manslaughter. The expression is so vague and uncertain. One of the responsibilities that we all have in both Houses of Parliament is to ensure that the laws that we pass are certain in legal effect. Nothing could be more uncertain than the expression "high levels of crime".

Lord Whitty

By and large we have gone through these arguments. As I think the noble Baroness, Lady Miller of Chilthorne Domer, suggested, these amendments would remove another, even more important, part of the structure of safeguards with regard to the use of these powers. The only time that we would wish to use the powers is where there is a genuine threat to significant numbers of people which is significantly abnormal and outweighs the public interest—by and large, that is the interests of the local people—in keeping a right of way open.

The effect of Amendments Nos. 373 and 386 would be to allow a right of way to be closed even if there were only a handful of crimes committed by people using it. I appreciate the point made by the noble Lord, Lord Renton, that the word "high" is not defined. However, by definition, that is a relative term. We are talking about unusually high levels of crime. It might be helpful if I were to say a little more about the process. I think that it was slightly misunderstood in the earlier debate.

High levels of crime would in the first case be identified by local authorities on application for a designation. The designation of the area is for the Secretary of State. Introduction of orders under that designation would be a matter for the local authorities. There would he a local element of application once the area had been identified as an abnormally high risk area.

The idea that we should use these provisions frequently to close footpaths and bridleways does not seem appropriate. The vast majority of crime is committed on premises. People have access on roads and pavements. Far more villains pass down the A13 than down the average rural footpath, but I should not be in favour of giving Essex County Council the ability to close the A13. One has to be proportionate. One has to recognise the number of people likely to be affected and to make a judgment as to the likelihood and incidence of crime within that area relative to the overall community. That is why the balance is built in there. That is why the process has to be robust and vigorous before such designations and orders can be made.

As regards the point raised by the noble Baroness, Lady Miller, it should not be left entirely to county councils although they can initiate the process and make the orders under such designation. It needs a tighter control than that; otherwise significant parts of our rights of way system could be under threat for reasons which purport to relate to crime but do not. I hope that the noble Baroness will not pursue the amendment.

Lord Peyton of Yeovil

As he so often does, my noble friend Lord Renton puts his finger on the point. The Minister's reply leaves me wondering what the answer is to the question that the noble Lord should be facing. What is the point of putting words into a Bill of which no one knows the meaning?

Lord Bridges

The Countryside Agency is unaware of there being any link between rights of way and criminal activity; and the formal closure or diversion of a path would be unlikely to deter the determined criminal from pursuing his crime. What is important is that the procedure for creating or altering rights of way should be transparent, clear and open to everyone.

Lord Renton

In view of what has been said by Members of the Committee since the Minister replied to the debate, perhaps I may implore him to think again. The noble Lord must try to achieve certainty.

Lord Mishcon

I wonder whether the Committee would agree that if a tribute were paid, as it so often is, to the high level of debate in this Chamber we should have no difficulty whatsoever in agreeing to it.

Baroness Byford

I shall not be deterred. The Minister has not answered my simple question on how one judges high levels of crime. I wish to test the opinion of the Committee.

4.3 p.m.

On Question, Whether the said amendment (No. 373) shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 144.

Division No. 1
CONTENTS
Aberdare, L.	Higgins, L.
Anelay of St Johns, B.	Hogg, B.
Astor of Hever, L.	Hooper, B.
Attlee, E.	Howe, E.
Barber, L.	Howell of Guildford, L.
Beaumont of Whitley, L.	Inglewood, L.
Biffen, L.	Laird, L.
Blatch, B.	Lamont of Lerwick, L.
Boardman, L.	Lucas, L.
Brabazon of Tara, L.	Luke, L.
Bridgeman, V.	McColl of Dulwich, L.
Brightman, L.	Mackay of Ardbrecknish, L.
Buscombe, B.	Marlesford, L.
Buxton of Alsa, L.	Miller of Hendon, B.
Byford, B.	Molyneaux of Killead, L.
Caithness,. E.	Monson, L.
Campbell of Alloway, L.	Montrose, D.
Campbell of Croy, L.	Mowbray and Stourton, L.
Carnegy of Lour, B.	Murton of Lindisfame, L.
Carver, L.	Northbrook, L.
Clark of Kempston, L.	Northesk, E. [Teller]
Cobbold, L.	O'Cathain, B.
Cope of Berkeley, L.	Oxfuird, V.
Courtown, E.	Palmer, L.
Crathorne, L.	Park of Monmouth, B.
Crickhowell, L.	Peel, E.
Cumberlege, B.	Peyton of Yeovil, L.
Dixon-Smith, L.	Prior, L.
Elles, B.	Pym, L.
Elton, L.	Rawlings, B.
Fookes, B.	Reay, L.
Glenarthur, L.	Renton, L.
Glentoran, L.	Roberts of Conwy, L.
Hanham, B.	Rotherwick, L.
Hayhoe, L.	Ryder of Wensum, L.
Henley, L.[Teller]	Seccombe, B.

Selborne, E.	Swinfen, L.
Sharples, B.	Thomas of Gwydir, L.
Shaw of Northstead, L.	Trefgarne, L.
Skelmersdale, L.	Vivian, L.
	Wilcox, B.
Stodart of Leaston, L.	Willoughby de Broke, L.
Strathclyde, L.	Young, B.
NOT-CONTENTS
Acton, L.	Hollis of Heigham, B.
Addington, L.	Hooson, L.
Allenby of Megiddo, V.	Howie of Troon, L.
Alton of Liverpool, L.	Hoyle, L.
Amos, B.	Hughes of Woodside, L.
Andrews, B.	Hunt of Kings Heath, L.
Archer of Sandwell, L.	Irvine of Lairg, L. (Lord Chancellor)
Avebury, L.	Islwyn, L.
Bach, L.	Jenkins of Putney, L.
Barnett, L.	Judd, L.
Bassam of Brighton, L.	Kirkhill, L.
Bath and Wells, Bp.	Laming, L.
Berkeley, L.	Lea of Crondall, L.
Bernstein of Craigweil, L.	Lester of Herne Hill, L.
Billingham, B.	Lincoln, Bp.
Blackburn, Bp.	Linklater of Butterstone, B.
Blease, L.	Lockwood, B.
Bledisloe, V.	Lofthouse of Pontefract, L.
Borrie, L.	Macdonald of Tradeston, L.
Bradshaw, L.	McIntosh of Haringey, L. [Teller]
Bridges, L.	Maddock, B.
Brooke of Alverthorpe, L.	Mar and Kellie, E.
Bruce of Donington, L.	Marsh, L.
Burlison, L.	Mason of Barnsley, L.
Carter, L.[Teller]	Massey of Darwen, B.
Christopher, L.	Merlyn-Rees, L.
Clarke of Hampstead, L.	Miller of Chilthorne Domer, B
Cledwyn of Penrhos, L.	Milner of Leeds, L.
Clinton-Davis, L.	Mishcon, L.
Cocks of Hartcliffe, L.	Mitchell, L.
Craig of Radley, L.	Morris of Castle Morris, L.
Crawley, B.	Nicol, B.
Currie of Marylebone, L.	Northbourne, L.
Darcy de Knayth, B.	Parekh, L.
Davies of Oldham, L.	Peston, L.
Dean of Thomton-le-Fylde, B.	Pitkeathley, B.
Desai, L.	Plant of Highfield, L.
Dholakia, L.	Portsmouth, Bp.
Dixon, L.	Prys-Davies, L.
Donoughue, L.	Redesdale, L.
Dormand of Easington, L.	Rendell of Babergh, B.
Dubs, L.	Richard, L.
Evans of Temple Guiting, L.	Roll of Ipsden, L.
Evans of Watford, L.	Sandberg, L.
Ezra, L.	Sawyer, L.
Falconer of Thoroton, L.	Scotland of Asthal, B.
Farrington of Ribbleton, B.	Scott of Needham Market, B.
Faulkner of Worcester, L.	Serota, B.
Fyfe of Fairfield, L.	Sharp of Guildford, B.
Gale, B.	Shepherd, L.
Geraint, L.	Sheppard of Liverpool, L.
Gibson of Market Rasen, B.	Shore of Stepney, L.
Gladwin of Clee, L.	Simon, V.
Goldsmith, L.	Smith of Clifton, L.
Goodhart, L.	Stone of Blackheath, L.
Gould of Potternewton, B.	Strabolgi, L.
Grabiner, L.	Strange, B.
Graham of Edmonton, L.	Symons of Vernham Dean, B.
Greaves, L.	Taverne, L.
Grenfell, L.	Tenby, V.
Hardy of Wath, L.
Harris of Greenwich, L.
Harrison, L.	Thomas of Walliswood, B.
Haskel, L.	Thornton, B.
Hayman, B.	Tomlinson, L.
Hereford, Bp.	Tordoff, L.

Turner of Camden, B.	Whitty, L.
Wakefield, Bp.	Wigoder, L.
Wallace of Saltaire, L.	Williams of Crosby, B.
Walmsley, B.	Williams of Elvel, L.
Watson of Invergowrie, L.	Williamson of Horton, L
Wedderburn of Charlton, L.	Woolmer of Leeds, L.
Whitaker, B.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 374 and 374A not moved.]

4.13 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 375: Page 63, line 17, leave out ("opposed") and insert ("unopposed").

The noble Baroness said: This amendment and the others in this group are mainly technical. Amendments Nos. 378, 379, 383, 388, 390, 394 and 395 relate to local authorities' existing powers under the Highways Act 1980 to divert rights of way and to the new powers in Schedule 6 to the Bill for local highway authorities to divert rights of way to prevent crime, increase school security or protect sites of special scientific interest. In some cases when diversions have been made under current legislation, the public right of way over the existing line has been extinguished before the newly diverted route is ready for public use. The amendments will prevent that by postponing the extinguishment until the local highway authority has certified that any necessary work on the new route has been carried out.

Amendment No. 412 relates to the provisions in Schedule 6 that enable local highway authorities to close or divert rights of way to prevent crime in areas designated by the Secretary of State or the National Assembly for Wales. The areas are to be designated by order and the intention is that such orders should be made by statutory instrument subject to the negative resolution procedure. The amendment provides for that.

Amendment No. 412A makes it clear that the Secretary of State's existing powers to require applicants for closure or diversion orders to enter into an agreement with the responsible local authority about costs will be delegated to the inspector dealing with a case on appeal.

The remaining amendments in the group deal with minor technical points and small corrections to amendments tabled in another place. I beg to move.

On Question, amendment agreed to.

[Amendment No. 376 not moved.]

Lord Whitty moved Amendments Nos. 377 to 379: Page 63, line 39, leave out ("opposed") and insert ("unopposed"). Page 64, line 28, leave out ("In"). Page 64, line 28, after ("bridleways)") insert ("is amended as follows. (2) In subsection (1)(b), for "so specified" there is substituted "specified in the order or determined". (3) For subsection (3), there is substituted— (3) Where it appears to the council that work requires to be done to bring the new site of the footpath or bridleway in to a fit condition for use by the public, the council shall—

1. (a) specify a date under subsection (1)(a) above, and
2. (b) provide that so much of the order as extinguishes (in accordance with subsection (1)(b) above) a public right of way is not to come into force until the local highway authority for the new path or way certify that the work has been carried out.".

(4)").

On Question, amendments agreed to.

[Amendments Nos. 380A to 382A not moved.]

Lord Whitty moved Amendment No. 383: Page 66, line 10, at end insert— (" .—(1) Section 119A (diversion of footpaths and bridleways crossing railways) is amended as follows. (2) In subsection (2)(b), for "so specified" there is substituted "specified in the order or determined under subsection (7) below". (3) For subsection (7) there is substituted— (7) Where it appears to the council that work requires to be done to bring the new site of the footpath or bridleway into a fit condition for use by the public, the council shall—

1. (a) specify a date under subsection (2)(a) above, and
2. (b) provide that so much of the order as extinguishes (in accordance with subsection (2)(b) above) a public right of way is not to come into force until the local highway authority for the new path or way certify that the work has been carried out.".").

On Question, amendment agreed to.

[Amendments Nos. 383A to 387 not moved.]

Lord Whitty moved Amendments Nos. 388 to 390: Page 67, line 14, leave out ("so specified") and insert ("specified in the order or determined"). Page 67, line 17, leave out ("authority") and insert ("council"). Page 67, leave out lines 30 to 36 and insert— ("(8) Where it appears to the council that work requires to be done to bring the new site of the highway into a fit condition for use by the public, the council shall—

1. (a) specify a date under subsection (4)(a) above, and
2. (b) provide that so much of the order as extinguishes (in accordance with subsection (4)(b) above) a public right of way is not to come into force until the local highway authority for the new highway certify that the work has been carried out.").

On Question, amendments agreed to.

[Amendment No. 390A not moved.]

Lord Whitty moved Amendments Nos. 391 to 393: Page 67, line 44, leave out ("opposed") and insert ("unopposed"). Page 68, line 13, leave out ("opposed") and insert ("unopposed"). Page 69, line 8, leave out from ("carriage-way") to end of line 11.

The noble Lord said: I beg to move.

Baroness Byford

Is Amendment No. 393 necessary? Mechanically propelled vehicles are unable to use restricted byways, so there can be no question of providing a suitable surface. I may be mistaken. Perhaps the Minister would clarify that.

Baroness Farrington of Ribbleton

Both that amendment and Amendment No. 398 relate to the new powers to divert in the circumstances as set out. They remove provisions in proposed new Sections 119B and 119E, relieving local highway authorities of any obligation when diverting a restricted byway to provide a service on the new line which is suitable for motor vehicles. As there is no right of way for motorised vehicles on restricted byways, the noble Baroness is quite right: the provisions are otiose and therefore likely to cause confusion.

Baroness Carnegy of Lour

Is the noble Baroness proposing to put an otiose amendment to the Committee?

Baroness Farrington of Ribbleton

No, I am putting an amendment to the Committee to remove an otiose provision.

On Question, amendments agreed to.

Lord Glentoran moved Amendment No. 393A: Page 70, line 26, leave out ("subject to subsection (4) below").

The noble Lord said: There appears to be a slip in the Bill (no offence meant). It is not apparent how the exercise of the order power in proposed new Section 119D(3) of the Highways Act is subject to subsection (4). That subsection merely states that such an order is an "SSSI diversion order". It may be that the reference should be to subsection (5). However, no such "subject to" reference is contained in the equivalent provision for the crime prevention diversions of new Section 119B(4) on page 67, line 1 of the Bill. Therefore, our amendment proposes to delete that reference.

I also want to speak to Amendment No. 396A, which requires notice to be given to the owners and occupiers of land when English Nature proposes to make a diversion order for the protection of SSSIs. I do not believe that I need to make a case for that. It appears to us to be right to give people advance notice of what is happening on their land. I beg to move.

Lord Whitty

With regard to Amendment No. 393A, I believe that the noble Lord is right in relation to the cross-reference, which should be to subsection (5) rather than subsection (4). However, the substance of his amendment, which would delete that reference entirely, would have the undesirable effect of enabling an order to be made diverting a right of way so that it leads nowhere or on to a highway which is not connected with the original route. That could, in other words, create a dead end. Therefore, I accept that, with the typographical correction, the substantive move to delete that cross-reference would be undesirable.

I believe that the conservation bodies would agree that we should not extinguish rights of way in order to protect SSSIs if adequate powers for diversions are in place. The diversion orders in the Bill are modelled on the existing public path order legislation, which also prevents the creation of a cul-de-sac. However, we have recognised the special nature of SSSI diversion orders by removing two of the conditions; namely, that the confirming authority is satisfied that the diversion will not be substantially less convenient to the public and that the line of the diverted path connects with a highway at a point which is substantially as convenient to the public. Therefore, those two conditions are removed but not the general condition.

I have some sympathy with what the noble Lord said with regard to Amendment. No. 396A. It would require English Nature or the Countryside Council for Wales to give notice of their application for an SSSI diversion. Perhaps the noble Lord will give me leeway to consider that amendment. I believe that he has a point and we shall return to the matter at the next stage of the Bill.

Baroness Carnegy of Lour

That is very good news. I believe that including, the owner and occupier of any land", crossed by a highway in addition to, such persons as may be prescribed", is rather peculiar. I hope that the noble Lord will not only consider the matter but will come back with an amendment. I believe that he is quite right to agree to that.

Lord Roberts of Conwy

I am sure that the Minister is absolutely right to give further consideration to this matter. It certainly seems odd that a path or bridleway could be diverted on to land of the same or another owner, lessee or occupier for the purpose of preventing damage. It would certainly be strange if that were to happen simply by order and without a proper process of consultation with the new owner who might be affected.

Lord Glentoran

The principal intention of our Amendment No. 393A is to point out that there is probably a slip in the drafting. I thank the Minister for acknowledging that. As I understand it, the reference will now be to subsection (5) as opposed to subsection (4). The Minister nods and I accept that.

I am deeply grateful and thank the Minister for what he said about Amendment No. 396A. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendments Nos. 394 and 395: Page 70, line 40, leave out ("so specified") and insert ("specified in the order or determined"). Page 70, line 53, leave out from beginning to end of line 5 on page 71 and insert— ("(6) Where it appears to the council that work requires to be done to bring the new site of the highway into a fit condition for use by the public, the council shall—

1. (a) specify a date under subsection (3)(a) above, and
2. (b) provide that so much of the order as extinguishes (in accordance with subsection (3)(b) above) a public right of way is not to come into force until the local highway authority for the new highway certify that the work has been carried out.").

On Question, amendments agreed to.

Lord Whitty moved Amendment No. 396: Page 71, line 50, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").

The noble Lord said: I indicated at Second Reading that we proposed formally to change the name of the Nature Conservancy Council (England) to English Nature, which is the name by which the body is generally known. The Nature Conservancy Council (England) was one of the three country councils set up following the Environmental Protection Act 1990 to replace the former Nature Conservancy Council. However, since it came into existence, by and large it has been known as English Nature.

Amendments Nos. 396 and 397 relate to Schedule 6 to the Bill. The larger number of corrections in the following amendments relate to Part III of the Bill. I must confess to the Committee that one or two amendments will he needed to Part I. Unfortunately we missed them but will return to them on Report. I apologise to the Committee but hope that the principle will be accepted. I beg to move.

On Question, amendment agreed to.

[Amendment No. 396A not moved.]

Lord Farrington of Ribbleton moved Amendments Nos. 397 to 402A: Page 72, line 24, leave out ("the Nature Conservancy Council for England") and insert ("English Nature"). Page 73, line 20, leave out from ("carriage-way") to end of line 23. Page 73, line 31, after ("1") insert ("or 6"). Page 73, line 48, leave out from beginning to end of line 2 on page 74 and insert— ("(a) after "or diverted" there is inserted "or where it appears to the Secretary of State as respects a relevant highway as defined by section 118B(2), 119B(2) or 119D(2) that it is expedient as mentioned in section 118B(1)(a) or (b), 119B(1)(a) or (b) or 119D(1)(b) that the highway should be stopped up or diverted","). Page 74, line 25, leave out ("countryside") and insert ("conservation"). Page 75, line 6, leave out ("may be") and insert ("are"). Page 75, line 13, leave out ("he") and insert ("the Secretary of State").

On Question, amendments agreed to.

[Amendment No. 402B not moved.]

4.30 p.m.

Lord Luke moved Amendment No. 402C: Page 78, line 5, leave out ("three") and insert ("two").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 402D and 402E. New Section 121C allows a council to refuse to determine an application for a stopping up or diversion if a similar application has been refused by the Secretary of State during the previous three years. That provision has similarities to, and may have been inspired by, Section 70A of the Town and Country Planning Act, which allows councils to refuse to determine a planning application if a similar one has been refused by the Secretary of State in the past two years. Obviously, that is to prevent unmeritorious repeat applications grinding down local residents.

However, the planning provision referred to above is subject to a requirement that there has been no significant change in material circumstances since that decision. Such a change could justify a different decision. The Countryside and Rights of Way Bill provision does not include a "no change of circumstances" requirement. These amendments would reduce the period to two years and require a finding of no material change in circumstances. Subsection (2) would therefore become unnecessary when such an obligation was imposed and is therefore proposed to be deleted. I beg to move.

Lord McIntosh of Haringey

I am afraid that these amendments would undermine provisions in the new Section 121C which the Bill inserts into the Highways Act. Those provisions enable local authorities to decline to determine applications from land managers and local authorities for orders diverting or closing rights of way when similar ones have been refused by the Secretary of State on appeal within the previous three years.

We believe that three years is a reasonable intervening period. After all, the original application will have been thoroughly assessed by the local authority and by the Secretary of State. We do not believe either that applicants should be able to plead a change of circumstances during the three years. It really must be for applicants to try to get it right the first time. There must be some sort of balance to prevent repeat applications every time someone thinks that his circumstances have changed. Again, we believe that it is reasonable for there to be a three-year gap after an application has been refused on appeal before an authority should be required to determine a similar one.

There is nothing to prevent someone from submitting a further application within the three years and the authority would have the discretion to determine it if it wished. Having said that, we believe that there should be a slightly different approach to schools because their applications concern the safety of staff and children.

For that reason, the Bill already requires that before an authority declines to determine a similar application from a school within the three-year period it must first consider whether there has been a substantial increase in the risks to the children and staff. We do not believe that there is a case for making similar provision for applications from land managers.

Lord Luke

I thank the Minister for that reply. I am interested in what he said about schools and rather disappointed by his approach to the substance of the amendments. But in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 402D and 402E not moved.]

Baroness Scott of Needham Market moved Amendment No. 403: Page 78, line 35, at end insert— ("(5) A council may decline to determine an application under section 118ZA and 119ZA if—

1. (a) it does not have the power to make a public path extinguishment order under the provisions of section 118 above, or a public path diversion order under the provisions of section 119 above, as appropriate, in respect of the footpath or bridleway to which the application relates;
2. (b) having regard to requirement of either section 118 or 119, it also appears to the council from the information currently available that any such public path order made by the council would not be capable of being confirmed, whether by the council or by the Secretary of State.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 409, 420 and 441.

Amendment No. 403 is a small technical amendment designed to save local authorities time and money by enabling them to decline to determine an application to divert or extinguish a public right of way under proposed new Sections 118ZA and 119ZA.

Currently, the Bill gives no indication of the criteria against which those sections should be determined or the grounds for accepting or rejecting them. This amendment makes it possible for an authority to refuse an application at an early stage on the grounds that it would not, at the end of the process, be possible for it to confirm it, perhaps, for example, because it can demonstrate that the path is still needed.

Amendment No. 409 relates to the subject of ploughing. As I said before, lowland arable counties, like Suffolk, will still be relying on the public rights of way network for access to the countryside. Apart from the many difficulties already discussed in relation to getting new routes on to the definitive map and protecting the status of those already on it, users also face a whole range of obstructions. Despite the many real improvements brought about by the 1990 Act, ploughing and cropping remain serious obstacles to the enjoyment of public rights of way.

At the moment, a member of the public can take action with regard to cropping and structural obstacles but have to rely on local authorities to deal with paths which have been ploughed out. The amendment would empower individuals to take action on ploughing offences and would help many voluntary footpath workers. There would be no added burden on local authorities. Law-abiding farmers, of whom there are many, would have nothing fear from this change while walkers seeking to enjoy their lawful rights would benefit greatly.

Amendment No. 420 also relates to the question of obstructions. Currently a member of the public may use Section 56 of the Highways Act to oblige the local authority to repair it, provided it can be shown, first, that the highway is maintainable, and, secondly, that it is out of repair. That is reasonable and well understood. But under Clause 59 of the Bill, a complainant seeking the removal of an obstruction must also demonstrate that the status of the right of way is not seriously disputed and that the highway authority is unable to demonstrate that its backlog prevents it dealing with the case in a reasonable time.

I suggest that the number of disputed routes and the number of obstructions on local authority books will make it very difficult for anyone to use the provision in the Bill to seek the removal of an obstruction. The fact that someone would be expected to demonstrate that all four criteria had been met in order to be safe from the possible award of costs acts as a significant deterrent to anyone wanting to use the provision.

It would be far better if the Bill replicated the Highways Act and required the first two tests: that the route and the obstruction qualify. If those tests are satisfied, the court could make the order but allow the appropriate length of time for the local authority to deal with its own priorities and the question of disputed routes.

I should say at this point that the wide range of exemptions from the definition of obstruction is also of concern. It is very difficult to see why, for example, a caravan does not constitute an obstruction for the purposes of the Bill. To exempt anything other than a permanent dwelling will be storing up an additional batch of problems for the future.

Finally, I turn to Amendment No. 441. Under current legislation, user groups and individuals are able to bring a case of obstruction of the highway to the magistrates' court. That usually occurs where, for some reason, they have been unable to persuade the local authority to deal with the obstruction.

But it is a matter of great frustration to those bringing the case that even where the magistrates convict the perpetrator, there is still no power to remove the obstruction. The most well-known example is the van Hoogstraten case where the company was found guilty of obstruction, fined and ordered to pay costs to the Ramblers' Association. Despite that, to this day, the obstruction remains. Clause 60 helps to solve that by enabling the court to order the person to remove the obstruction. We should like to extend that by enabling courts to remove the obstruction and recover costs if the perpetrator refuses to comply. I beg to move.

Baroness Miller of Chilthorne Domer

I rise to speak to Amendment No. 441A in this group. The purpose of the amendment is to address an issue which prevents a process being streamlined, both for local authorities and the Secretary of State.

Under current law, when an authority makes an order to change a right of way it must give notice and seek representations. At present, because the law is not understood, objections are frequently made which cannot be considered in determining an order. The only factors which can be considered are whether a right exists and, if so, its route and status. Factors which give rise to objections but which cannot be taken into account are the effect on nearby properties and whether the use is appropriate.

At present, a surveying authority faced with any such objection must, unless it can secure its withdrawal, forward both the order and the objection to the Secretary of State for determination. Similarly, the department has no option but to proceed to determine the order, including, where necessary, by holding a local inquiry. That is both lengthy and costly in terms of procedure.

An inquiry or exchange of representations is required to take place. That is futile. Even if the grounds for objection are sustained, they cannot lead to a refusal to confirm the order. Alternatively, an inquiry to hear relevant objections is needlessly prolonged and may spend considerable time debating issues which are irrelevant to the eventual decision.

Guidance on this matter is currently contained in a booklet issued by the Planning Inspectorate entitled, Definitive map orders. The booklet gives advice on the main points to be taken into account by the Secretary of State or inspector. Section 5 states the only points to be considered.

When the Bill was debated in the other place, Mr Michael Meacher, the Minister for the Environment, conceded that the points raised by a Liberal Democrat Member's amendment were relevant. He stated: The new clause's primary purpose is to ensure that when there are irrelevant objections to an order, a surveying authority can go ahead and confirm the order—in other words treat it as an unopposed order".—[Official Report, Commons, 14/6/00; col. 949] That makes eminent sense. The Minister went on to say that he had a lot of sympathy with the objective of the amendment and that if the Government could overcome the difficulties, he would introduce proposals.

I hope that the Government have considered the matter seriously. The fact that they have not tabled their own amendment suggests that they still consider there are difficulties. Either the original drafting of the booklet issued by the Planning Inspectorate creates difficulties and needs to be redrafted or the Government need to place a provision on the face of the Bill. However, the time wasted and costs involved are obviously unacceptable.

4.45 p.m.

Baroness Farrington of Ribbleton

I hope to be able to reassure the noble Baroness that the first part of Amendment No. 403 is unnecessary. This element would enable a local authority to decline to determine an application by a land manager for an order under Section 118 or 119 of the Highways Act if it had no power to make the order sought in the application. Clearly, if there is no power to make an order, an authority cannot do so. For example, an authority may make an order closing a footpath or bridleway under Section 118 only if it appears to it expedient on the grounds that the way is no longer needed for public use. The right to apply for such orders under new Section 118ZA does not diminish those tests.

It is necessary for the authority to consider an application which it receives, otherwise it would have no way of judging whether or not it had the power to make an order. However, if the authority were to conclude that the grounds for making an order were not satisfied, it should refuse.

The second element appears to confuse two separate processes: the making of an order and its confirmation. An authority may make an order in good faith but should not, in every case, anticipate what objections or representations, if any, might be made which would affect the decision on whether the order should be confirmed. For example, the tests for confirming an order under Section 119 are different from those for making it.

To that extent it is difficult to see how the amendment would work in practice. However, I hope that in the light of the assurances I have given that the new right to apply for orders does not affect the grounds on which such orders may be made, the noble Baroness, Lady Miller, will feel able to withdraw the amendment.

I accept that authorities may, as the noble Baroness stated, occasionally receive applications which show little understanding of the grounds on which such an order may be made. That can happen with any consent procedure. It should be possible to filter those out through informal discussions with the applicant. If, however, an applicant insists on proceeding and the matter eventually comes to the Secretary of State on appeal, he has the power to award costs if he considers that a person has acted unreasonably.

The Bill already enables an authority to decline to consider applications in certain circumstances. Those are set out in new Section 121C in Schedule 6. They include, for example, an application which is similar to one for which the Secretary of State has refused to make or confirm an order within the previous three years.

I turn to Amendment No. 409. I listened carefully to the views put forward. I recognise the fears of those who believe the amendment would open the floodgates to unreasonable prosecutions; for example, where a farmer had missed the deadline by only a few days. However, we think that that is unlikely. Prosecutions; cost money. User groups are constantly telling the Government that they should not have to initiate proceedings when it is the responsibility of the highway authority to do so. For example, it is possible to bring private prosecutions under Section 137A of the 1980 Act which relates to crops on rights of way and which might be regarded as the counterpart to Section 134. However, the Government have not been presented with evidence of over-zealous prosecutions under Section 137A. On the other hand, where, for no good reason, highway authorities are reluctant to act, there is an argument that the public should be able to take action themselves, particularly in serious cases. That is the approach we have adopted in Clause 59 of the Bill in respect of certain kinds of obstructions on rights of way.

We resisted amendments in another place which would have brought ploughing within the ambit of Clause 59 because in legal terms a ploughed footpath is more likely to constitute a nuisance than an obstruction. Moreover, the procedures in Clause 59 are more suited to obstructions which are likely to endure for some time. On the other hand, a ploughed field can become a field with growing crops in a relatively short time.

That rather leaves ploughing out of the equation in terms of public action. I understand the motives behind Amendment No. 409. I am sure that most farmers act responsibly and meet their obligations under Section 134(3) of the Highways Act. However, it is true that the restriction on who may prosecute offences under Section 134 sits oddly with the related provisions in Section 137A, and, indeed, with the general offence of wilfully obstructing a highway under Section 137 of the Highways Act 1980. Moreover, the Bill's provisions relating to temporary diversions do not prevent offences under those provisions being prosecuted privately. I am therefore prepared to consider further the case for amending Section 134, although I can make no commitment at this stage that the Government will table amendments on Report. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Before speaking to the other amendments in this group, it may help the Committee if I explain that Clause 59 expressly applies to those obstructions whose removal highway authorities have specific powers to secure by notice, and, in the event that the obstruction is not removed, to remove it themselves, sometimes with the need of a court order, recovering their costs from whoever is responsible. I believe that that may answer one of the points raised by the noble Baroness. The types of obstruction involved are fences, gates, piles of machinery and so forth.

The Secretary of State or the National Assembly for Wales may make regulations extending the provisions to other forms of obstruction whose removal a local highway authority has power to secure. Certain kinds of obstruction are excluded from the provisions. Amendment No. 420 would lift that exclusion, bringing them within the ambit of Clause 59. I can assure the noble Baroness, Lady Miller, that the Government thought carefully about these provisions before introducing the Bill.

The main purpose of Clause 59 is to encourage local highway authorities to comply with their general duty under Section 130(3) of the Highways Act 1980 so as to prevent obstruction to their highways as far as possible. Clause 59 enables an individual to intervene in the process whereby a highway authority decides what its priorities for dealing with an individual obstruction should be; that is, which one it should deal with first. That is relatively unusual in local government decision-making. There has to be a balance between an individual's right to get priority given to an obstruction which is causing him particular concern and an authority's duty to decide what its overall priorities should be in the interests of the public as a whole.

We believe that obstructions caused by buildings, caravans, tents and the presence of people should not be matters for Clause 59. Public order issues can arise when action is taken to remove obstructions of this nature and a local highway authority is best placed to decide how and when it should act in such cases. For example, cases may arise where its own officers are put at risk.

Amendment No. 420 appears to be a replacement for new Section 130B(4) which sets out the grounds on which the court may make an order against a highway authority, although I note that the amendment does not, in fact, delete Section 130B(4). One effect of the amendment would be to remove the court's discretion to make an order if certain conditions were met. Under the Bill as currently drafted, we would expect the court to make an order if satisfied as to the matters set out in new Section 130(4) and if the statutory defence in new Section 130(5) was not met. However, there may be circumstances in which it might be appropriate for the court not to make an order if, for example, it was clear that the complainant had acted in bad faith. The court should have discretion in such cases.

The amendment would also allow for an order to be made if there was a serious dispute as to whether the way in question was a highway or even if the authority had a well-funded programme for dealing with obstructions, was working its way through it, and had added this latest one to the list.

The purpose of Clause 59 is to catch the poorly performing authorities—those who do not take seriously their responsibilities to keep rights of way open for the public. Shortage of funds would not be an excuse for taking little or no action at all. On the other hand, an authority which showed that it had committed reasonable funding and was implementing a fully prioritised strategy to deal with obstructions on rights of way in its area should be allowed to get on with it.

The noble Baroness is right that Clause 59 would not deal with another van Hoogstraten who built a barn over a right of way. But Clause 60 would. It enables a court, when convicting a person of wilfully obstructing a highway, under Section 137 of the Highways Act, to order the person concerned to remove the obstruction. Section 137 applies to all forms of unlawful obstruction.

We do not believe that this Bill is suitable for dealing with problems referred to by the noble Baroness in relation to caravans, which are best handled through the DETR/Home Office guidance to local authorities.

Finally, we are prepared to consider Amendments Nos. 441A and 538 with a view to bringing forward amendments on Report. However, we would not be able to accept the amendments in their current form because we do not believe it right that a surveying authority which is promoting an order should be entitled to decide whether or not to treat an objection as a bad objection and so avoid further public scrutiny into the merits of an order. Indeed, the amendments seem very widely drawn in that they appear to enable an authority to disregard any representation which it considered was not capable of affecting its decision of whether or not a definitive map modification order was appropriate. It could cover objections which were relevant but to which the surveying authority itself thought no weight should be attached.

If there is to be a filtering process, it should be operated by the Secretary of State or the National Assembly for Wales. It may be possible to avoid the time and expense of a public inquiry if the Secretary of State or the Assembly were entitled to refuse to hold an inquiry or hearing if the only objections or representations were irrelevant. We will look into that further. In the meantime, I hope the noble Baroness will feel able to withdraw her amendment.

I apologise to Members of the Committee for giving such a detailed reply. This is a highly technical area and to have it on the record will I hope, save the House time on Report.

Baroness Miller of Chilthorne Domer

Before my noble friend replies to her amendment, perhaps I may thank the Minister for her response on Amendment No. 441A. It is important. The DETR's estimated annual costs at the moment are around £12.5 million and the extra annual expenditure of removing obstructions is likely to be over £5 million. The time and effort put into this matter therefore is very worth while in terms of the public purse.

Baroness Scott of Needham Market

I thank the Minister for her comprehensive reply, which I shall study carefully in Hansard. I remain concerned that the significant number of obstacles to the rightful enjoyment by the public of their rights of way will not diminish as a result of the Bill. Nevertheless, I take encouragement from the Minister in terms of ploughing and the objections. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton moved Amendments Nos. 404 to 406: Page 79, line 10, leave out ("subsection (5) of section 119") and insert ("section 119(5)"). Page 79, line 12, leave out ("that subsection as applied by"). Page 79, line 48, leave out from ("public") to end of line 50.

On Question, amendments agreed to.

Baroness Byford moved Amendment No. 406A: Page 80, leave out lines 45 to 47.

The noble Baroness said: This subparagraph in the Secretary of State's regulation-making power is, in my view, a Henry VIII clause. It would enable the Secretary of State to change the appeals procedure without further recourse to Parliament. We feel that it is not in the public interest that he should be able to do so. All changes to appeals procedures should be cleared first by Parliament. I beg to move.

Lord McIntosh of Haringey

I can assure the noble Baroness, Lady Byford, that there is nothing sinister in the regulation-making power in new Section 121E which Schedule 6 inserts into the Highways Act 1980. The current procedures for making and confirming orders creating, diverting or closing rights of way under the Highways Act were not specifically designed for the kind of application and appeals process included in the Bill. It has therefore been necessary to adapt those procedures. We could not replace them with something entirely new because there is overlap between the appeals process and the process of making and confirming orders. We want a regulation-making power merely as a prudent measure to ensure that if, in practice, any procedural difficulties arise, then minor amendments to Schedule 6 may be made.

I hope the noble Baroness, Lady Byford, will be comforted by the fact that the Select Committee on Delegated Powers and Deregulation scrutinised all the regulation-making powers in the Bill. This was one of many which it did not consider required amendment. I hope that that encourages her not to press the amendment.

Baroness Byford

I fear that in this Chamber that would be a terrible thing to do! I thank the Minister for his response and believe that he will understand why concern has been expressed. I am pleased about his assurance that the amendments will be minor. Having tried to tempt him to describe what is "a high level of", perhaps I can tempt him to describe what is "minor". But perhaps that would be unkind and at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendments Nos. 407 and 408: Page 81, line 16, leave out from ("of") to ("on") in line 17 and insert ("subsection (2) of section 118ZA above (or that subsection as applied by section 118C(2) above)"). Page 81, line 26, leave out from ("of") to ("on") in line 27 and insert ("subsection (4) of section 119ZA above (or that subsection as applied by section 119C(4) above)").

On Question, amendments agreed to.

[Amendment No. 409 not moved.]

5 p.m.

Lord Glentoran moved Amendment No. 410: Page 81, line 32, leave out ("of a prescribed description") and insert ("reasonably necessary for land management which").

The noble Lord said: Schedule 6 extends the scope and length of temporary diversions. We welcome new Sections 135A and 135B, which provide a power for an occupier to divert rights of way temporarily in order to prevent danger to the public. However, restricting the right to a period of five days in any one calendar year renders it effectively useless.

In addition, the provision to prescribe the grounds on which such diversions can be made suggests that the power to divert might not in practice be as flexible as it should be in the interests of effective land management.

If an occupier wants to divert a path temporarily he must give at least 14 days' notice to the highway authority; at least seven days in advance of the diversion, publish in a local newspaper a notice that the route will be diverted; display notices during the period of the diversion; and gain consent from a neighbouring occupier if the diversion involves adjacent land. Few occupiers are likely to be willing to incur the costs involved in meeting those requirements for a diversion lasting only five days.

There is a serious need for a temporary diversion procedure but the provisions must allow land managers to divert paths for the period needed to undertake dangerous operations. Equally, the provisions should be flexible in order to accommodate varying land management needs both now and in the future. Operations where temporary diversions might facilitate land management include the thinning or felling of woodland, which may take several weeks. I can think of woodlands where many public rights of way had to be closed after the major storms in 1979 and 1987. They also include the harvesting of coppice biomass crops, which is highly mechanised; building works adjacent to rights of way; programmes of aerial spraying of bracken; harvesting operations involving the intensive use of machinery over cross-field paths or in farmyards where, for example, grain is being transported between trucks, dryers and stores; spraying out the line of cross-field paths; programmes of moor burning; repairing (for example, surfacing eroded paths); pest control (for example, culling deer in woodland); and shooting events, which are perhaps less relevant because they would not take so much time and are covered elsewhere in Part I.

The amendments would extend the provisions by increasing the period to 28 days, providing a proportionate payback in terms of the cost involved in securing diversions. Removing the reference to "prescribed activities" enables the more flexible use of the provisions to meet current and emerging land management needs which could pose a danger to people using rights of way.

We recognise that user groups may be opposed in principle to any diversion. However, provided that they are well managed, as new Sections 135A and 135B require, the alternative routes should be clear and suitable and they should be much safer, avoiding possible risks to users. I beg to move.

Lord Roberts of Conwy

I want to speak briefly to Amendment No. 411, to which I have put my name. As my noble friend said, new Section 135A limits the period of diversion to five days in one calendar year. That is for works which may pose a danger to the public using footpaths or bridleways.

The time limitation is totally unrealistic and restrictive. My noble friend gave examples of the kind of work which might be done; for example, the thinning of woodland and so forth. Five days is a very short time to carry out any significant work. I give the example of a footpath running close to a stream which has flooded and eroded the path. The stream bank may require some buttressing so that the path can be restored and the land protected.

Such work will take longer than five days to accomplish. Amendment No. 411 proposes 28 days, which may still be a short time but is more realistic. I dare say that some of my noble friends can produce examples of works which might cause a danger to the public using footpaths and bridleways and which are more apposite and better than my example.

As the prescribed works are potentially dangerous to the public, I should have thought that the persistence of the danger should be the determining factor as regards the duration of a diversion, rather than an arbitrarily fixed time laid down in statute. That is unduly binding. The five-day limit for diversion seems to be inspired by an anxiety on the part of the Government to ensure that a landowner does not abuse the provision to divert a path rather than by genuine concern about the safety of users. I believe that on this occasion the Government can set aside their obsession with wicked landlords because diversions under this provision cannot take place without the permission of an authority.

Furthermore, works of the kind envisaged here and the necessary consequential diversion cannot be embarked upon without a great deal of preparation as specified in subsections (5), (6), (7) and (8). Fourteen days' notice must be given, a notice must be placed in a local newspaper seven days in advance and notices must be displayed in prescribed places.

The preparations seem to be substantial, bearing in mind that the diversion is for only five days. I believe that the period is exceedingly short and hardly worth the effort implied in subsections (5), (6), (7) and (8) and all the requirements therein. The Government would be well advised to look again at the time constraint, otherwise the effect will be to discourage owners from doing necessary works in the vicinity of the footpaths and bridleways. That cannot be of benefit either to the landowners or users of paths and bridleways.

Lord Rotherwick

I too support the amendment. As a land manager and user I have experience of exactly this problem. I give the example of a failing 50-metre dam which needed to be taken down, not just for its improvement but because it caused danger to the users of a footpath. It took considerably longer than five days to erect that dam. I also cite examples of water pipes which are laid the length of footpaths. That is not done to be unhelpful to users but to renovate pipes in poor condition which have always been there. The diversions and closures of footpaths which must be made are probably not those preferred by the land manager, and certainly not the user; both want the works to be completed in the minimum time. Therefore, I hope that the Government will reconsider the five-day period and produce something more appropriate.

Lord Northbourne

If the Minister believes that he must retain the five-day limit for the diversion of rights of way when necessary works take place, is he prepared to include highways for vehicular traffic as well? That would be a great service to all of us.

Earl Peel

With reference to Amendment No. 410, I ask the Minister who is to define the words "prescribed description". That apart, I support what my noble friends have said. Such diversions must be based on flexibility and local experience, to which we return again. Clearly, such closures will vary considerably from region to region where there are different land management regimes. I would have thought that the words of Amendment No. 410 in the name of my noble friend Lord Glentoran would well cover the point and introduce the necessary flexibility.

As to Amendment No. 411 to which I have put my name, a five-day period is unrealistically prescriptive. As my noble friend Lord Roberts said, in many cases one is talking about diversions to help the public avoid danger and for health reasons. I have listed one or two items that I believe appropriately describe why such diversions may take place. One of the matters that jumps to mind is bracken spraying. That is a highly toxic operation which sometimes takes a number of days to achieve depending on the prevailing weather conditions. My noble friend referred to the repair of pathways and the thinning and felling of woodland. I hope that the Government will look at this matter in a more flexible and sensible light. Even if they do not accept 28 days, perhaps they will consider an amendment which contains wording such as "for whatever time is deemed necessary to conduct the work in hand", or something like that, to introduce the essential degree of flexibility which is sorely lacking in a prescriptive five-day period.

Perhaps I may make a general observation. On a number of occasions during Committee stage, and quite recently when debating another amendment, the noble Baroness, Lady Miller, appeared to be obsessed that landowners—I believe that she referred to Conservative local authorities—took every opportunity to close or divert footpaths. That is a rather disingenuous attitude. I assure the noble Baroness that, in good faith, certainly all of the amendments to which I have spoken or put my name—I am sure that I speak for other noble Lords on this side of the Committee—have been tabled for very good reason: to protect land management or safeguard the public. I ask the noble Baroness to refrain from continually suggesting that this is being done simply to try to keep out the public. Most landowners whom I know welcome footpaths and the opportunity for people to enjoy the land. Many of us are proud of what we do which the public enjoy seeing. I make that point simply because I believe that some of the comments of the noble Baroness indicate an attitude that is contrary to what happens in practice.

5.15 p.m.

Baroness Miller of Chilthorne Domer

Before the noble Earl began the last part of his contribution I was about to rise to support the Conservative amendment, which I still intend to do. I do not support it as a result of his small lecture to me but on the ground of consistency, because I believe that it is right. The noble Earl will recall that at the end of Part I the Liberal Democrat Benches moved amendments which for landowners were less prescriptive about means of access. The Government accepted that if different means of access were proposed that was reasonable. We also moved an amendment relating to the length of time, which was not accepted. Therefore, the noble Earl's remark that these Benches do not bear in mind the interests of landowners where appropriate is somewhat unfair. I refute any suggestion that we do not believe that most landowners make extremely good efforts. Perhaps we are wary of the minority who do not.

In this case we support the Conservative amendment. We believe that, from the point of view of the user, the quality of the diversion counts more than a very short period. It is more important to have a decent diversion for a longer period than to have a five-day period.

Lord McIntosh of Haringey

Amendment No. 410 would remove from the Secretary of State and the National Assembly for Wales the power to prescribe the operations to be covered by the Bill's provisions for temporary diversions. Amendment No. 411 would significantly increase the number of days a year that paths could be diverted. I have listened carefully to then argument that, for example, it is hardly worth a farmer's effort to advertise and signpost a diversion if he can do it for only five days a year.

My starting point is that diversions must be kept to a minimum. After all, when people go for a walk or ride on a public highway they have the expectation that they will not be led off what may be a familiar and much enjoyed route and taken on a roundabout journey. Therefore, it is not in the public interest to allow diversions willy-nilly. I do not say that that is what is provided for in the amendment, but that must be my starting point.

Earl Peel

Perhaps the Minister fails to realise that when a diversion is called for on most occasions one is required to go only a short distance from the existing path. I do not believe that, on the whole, the walker will be seriously inconvenienced.

Lord McIntosh of Haringey

I believe the noble Earl agrees that sometimes that is true and sometimes not. Most of the speeches have been made on the assumption that the only means to create diversions is by the temporary power provided in the Bill. That is not the case. Section 135 of the Highways Act allows for temporary diversion for engineering works for up to three months. The difference is that the Section 135 power requires prior approval by the highway authority, but even in that case for the first time in this Bill we have provided an appeal procedure. That situation has existed up until now, but the procedure has not been used to any great extent. We now make it easier for landowners by providing the appeal procedure.

The Ministry of Agriculture, Fisheries and Food has powers to deal with extreme situations like animal and plant disease. Those powers appear to be perfectly adequate for the purpose. When we come to highways, to which the noble Lord, Lord Roberts, referred, Section 14 of the Road Traffic Regulation Act 1984 empowers highway authorities temporarily to restrict or prohibit the use of any road because of works executed on or near it, or because of the likelihood of danger to the public. I sympathise with the noble Lord, Lord Northbourne, in wishing that those responsible would not do it as much as they do. But the powers exist. These temporary diversion powers—I must make this point because it has not been made—are powers that exist without the approval of the authority. These are additional new powers to the existing powers of diversion. My answer to the noble Earl, Lord Peel, is that the regulations will be made by the Secretary of State. It is necessary that these new diversion powers are viewed in the context of existing powers and that the original proposals did not include a right of appeal for Section 135 procedures.

There is no right of appeal against temporary diversions because there is no approval required from the local authority. We think that these additional powers go a long way towards providing the flexibility which land managers have been seeking.

It is right, therefore, to be cautious about the extent of further provisions which impact on the public's use of rights of way. We do not consider that temporary diversions would be appropriate for prolonged operations such as crop growing. We shall consult on the operations to be included in the regulations. But I do not want to start negotiations on that now. However, these new provisions might be appropriate for some of the items listed by the noble Lord, Lord Glentoran; for example, crop spraying, thinning woodland, moor burning and repairing eroded paths.

In almost every respect noble Lords underestimate the way in which additional flexibility and additional powers to landowners are given in the Bill. The additional flexibility has to be tempered. There has to be a balance between the needs of the land manager and the rights of the public. The requirements in the Bill for publicity and signposting are as much in the interest of the occupier of the land as the public. It will be for land managers to decide in each case whether they need to divert a path or whether they can work around it, which at the moment many of them do.

Therefore, I must resist Amendment No. 410. On the issue of the five days, I believe that 28 days is too much for this additional provision. I am willing to consider whether a modest extension to the five days provided is appropriate. I do not think I can consider having it for "as long as the works take place", as a number of noble Lords have suggested. That would be a blank cheque.

Lord Roberts of Conwy

Before the Minister sits down, perhaps I may clarify two points with him. First, I appreciate what he said about the nature of the notice to be given by anyone who proposed to act under this provision. But is he saying that when this provision requires a person to give notice of the diversion in accordance with subsection (6), that notice given does not seek permission from the authority concerned? Secondly, can he explain what the situation will be if a farmer has given notice to do work which should be completed in five days and the work continues beyond that time for reasons beyond his control, such as bad weather, snow and so on?

Lord McIntosh of Haringey

I hope I made clear that the answer to the first question is that these temporary diversion procedures do not require permission from the authority. They can be done by notice being given in the way that is described in the Bill. As to the second question, common sense must prevail. If a cliff falls in and blocks the path and it takes more than five days to clear, everyone will understand that force majeure in such circumstances must prevail. I have already said that I am willing to look at some modest increase to the five days.

Lord Glentoran

I thank the Minister for that explanation, and I thank the noble Baroness, Lady Miller, for her support on these amendments. I understand the Government's position in relation to my Amendment No. 410. I still think that increased flexibility would be advantageous to the Bill. I shall not press Amendment No. 410 or Amendment No. 411. However, I should like to speak to Amendment No. 411. I thank the Minister for giving way to some extent and accepting that there is an argument here that he will go away and look at.

Diversions under the Bill have to be a compromise. They will not normally suit everyone. I am certain that 99 per cent of land managers, once they have a right of way in place and it is used as a public highway, are content to leave it. It is a serious interference for them and the general public if the right of way has to be messed about with. They have to go to the trouble of putting the diversion in place and then they have to make arrangements on their own land or somebody else's to put in a diversion. We on this side of the Committee accept the point that diversions are expected to be of the highest quality possible.

I am grateful to the Minister for making the point about Section 135. I refer in particular to the map situation with regard to animal or plant diseases and so on and other ways of achieving diversions or closures. I should like to press the Minister. He said that 28 days is too much. I would just ask, why five days? It is a difficult area. Both sides of the Chamber agree. I accept that the Government will take the matter on board and do their best to come to a reasonable, sensible conclusion.

I have a final point. Perhaps we should mention in the Bill acts of God—a cliff falling down, as the Minister suggested; the storms to which I referred in moving the amendment; and such like.

Lord McIntosh of Haringey

I am sure that there are tonnes of paper regarding case law on force majeure. If there is anything new to be said I shall write to the noble Lord and other Members of the Committee. But I should be very surprised if there is.

Lord Glentoran

I thank the Minister. Perhaps we shall have to ask the right reverend Prelates for advice on that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 411 not moved.]

Baroness Farrington of Ribbleton moved Amendments Nos. 412 and 412A: Page 83, line 40, at end insert ("and (b) in subsection (2)(b), after "17" there is inserted "or 118B(1)(a)"."). Page 85, line 48, after ("State") insert ("including any related decision under section 120(5) of this Act").

The noble Baroness said: I spoke to these amendments with Amendment No. 375. I beg to move.

On Question, amendments agreed to.

Baroness Byford moved Amendment No. 412AA: Page 86, line 2, leave out ("(2) to") and insert ("(4) and").

The noble Baroness said: In moving Amendment No. 412AA, I should like to speak also to Amendment No. 412AB. These are clarifying amendments. Section 250(2) and (3) of the Local Government Act provide for the summonsing of witnesses and the administering of oaths in public inquiries. Those provisions are inappropriate for the informal hearings process. Legal representation, the calling of witnesses to give evidence and cross-examination are discouraged in hearings. If witnesses have to be compelled to attend or give evidence under oath, that should take place in the more formal surroundings of a public inquiry. The amendments disapply the provisions in hearings. I beg to move.

5.30 p.m.

Lord McIntosh of Haringey

I am glad that, in introducing the amendments, the noble Baroness, Lady Byford, emphasised the difference between hearings and inquiries. That is the key to the issue.

The amendments would remove from the Bill important powers which would enable an inspector to summon witnesses to a hearing into an order creating, diverting or closing a right of way under the Highways Act 1980. The powers are already available in respect of inquiries because Section 302 of the Highways Act applies Section 250 of the Local Government Act to all inquiries held under it.

The purpose of the provisions in Schedule 6 to the Bill is to apply to hearings the same powers as currently apply to inquiries. The Government's policy generally is that a public inquiry will be held unless the promoting authority and the objectors—that is, the parties—agree to a hearing. There are clearly advantages to hearings. They are less formal and less expensive; and I would imagine that they are often quicker. However, there may be occasions when, despite the agreement between the parties, it may be necessary to summon someone who is not a party to the dispute and is not in attendance at the hearing to give evidence or to call for documents in order that a properly informed decision may be made. I do not think that anyone would lose by that. The advantage is that it stays as a hearing without being upgraded to the more formal status of inquiry.

If the amendments were carried, they could require that when a hearing was being held it could be turned into an inquiry even though matters could be dealt with at a hearing more expeditiously. There is plenty of precedent for what the Government propose. There is a similar provision under Schedule 20 to the Environment Act 1995 in relation to certain appeals. Other examples may be found in the Environmental Protection Act 1990 and the Water Resources Act 1991.

I hope that, on consideration, the noble Baroness will feel that this degree of compulsion in a hearing is better than turning it into a full-blown inquiry.

Lord Renton

Will the noble Lord be so good as to explain how the Secretary of State will make regulations to modify? That may mean "amend" or it may mean "repeal". It would be helpful if we could be given some idea of what the method will be. It may be that I have not been zealous enough in tracing from other parts of the Bill how that shall be done. No doubt the Minister will have that information at his fingertips. It would be helpful if we could have an explanation of how the modifying will be done.

Lord McIntosh of Haringey

There is no reference in the part of the Bill we are discussing to modification or regulation. We are discussing paragraph (8), which states: After paragraph 2A there is inserted— 2B.—(1) Subject to sub-paragraph (2), subsections (2) to (5) of section 250 of the Local Government Act 1972 (giving of evidence at, and defraying of costs of, inquiries) apply to a hearing which the Secretary of State causes to be held". I do not know where regulation or modification comes into it.

Baroness Byford

I thank the Minister for that response. I shall not divide on the amendment but I should like to consider the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 412AB not moved.]

Baroness Farrington of Ribbleton moved Amendment No. 412B: Page 88, line 11, leave out from ("hearings") to ("as") and insert ("held under this Schedule by an appointed person").

The noble Baroness said: I spoke to this amendment with Amendment No. 375. I beg to move.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 54 [Application for path creation order for purposes of Part I]:

Lord Whitty moved Amendment No. 413: Page 33, line 38, leave out from ("any") to end of line 39 and insert ("local highway authority whose area includes land over which the proposed footpath or bridleway would be created.").

The noble Lord said: This amendment is a technical amendment. Clause 54 empowers the countryside agencies to apply to the Secretary of State or the National Assembly for Wales to make an order creating a public path enabling people to gain entry to land over which they have a right of access. Before making such a request, the agencies are required to take account of any rights of way improvement plans for the area concerned. The amendment merely makes it clear that, where the proposed new path would cross two local highway authority areas, both rights of way improvement plans are to be taken into account. I beg to move.

On Question, amendment agreed to.

Clause 54, as amended, agreed to.

Clause 55 [Effect of Part I on powers to stop up or divert highways]:

Baroness Farrington of Ribbleton moved Amendment No. 414: Page 34, leave out line 27.

On Question, amendment agreed to.

Clause 55, as amended, agreed to.

Clause 56 [Rights of way improvement plans]:

Baroness Byford moved Amendment No. 415: Page 34, line 42, at end insert— ("( ) the extent to which local rights of way meet the present and likely future needs of agriculture, forestry and the breeding and keeping of horses,").

The noble Baroness said: As the Committee will be aware, those involved in agriculture and the keeping of land continue to go through difficult times. One of the things the Government have been encouraging them to do is to diversify. Clause 56 requires local authorities to prepare rights of way improvement plans. In formulating those plans, local authorities are required to consider the extent to which local rights of way meet the present and likely future needs of the public. However, it is not clear whether that reference also includes the interests of land managers. They are indeed members of the public. I suggest that that point needs to be clarified.

Clause 56 also requires local authorities to consult various interests in preparing improvement plans, but there is no specific provision for consultation with individual land managers or with bodies representing their interests, such as the CLA, the NFU and FUW. There is merely a catch-all reference in Clause 57(1)(f) to "such other persons" as may be prescribed. There is a risk that the interests of land managers will not be effectively taken into account.

There is no dispute about the need for improvements to the network; for example, the creation of new circular paths, to which we shall be coming shortly, or links with bridleways to take horses off busy country lanes. We are simply concerned that the authorities may not bother to consult land managers or their representative bodies over their plans because they are not specifically required to do so.

The risk is a real one. As the Bill stands, authorities keen to minimise the costs associated with rights of way improvement plans could simply consult only the interests listed in or prescribed under Clause 54. Furthermore, the draft guidance prepared by the Countryside Agency for local authorities in relation to rights of way improvement plans does little to suggest that land managers will in practice be involved. The guidance makes much of the need to assess how much the rights of way network meets the current and future needs of the public, its relevance to today's society and how best to meet the needs of horseriders, cyclists and the less mobile. While the reference in the guidance to the legal obligations of the authorities to their need to have regard for the interests of agriculture and forestry is helpful, it falls short of a cast-iron assurance that those interests will be properly considered.

This amendment would put beyond doubt the need for local authorities to pay due attention to the needs of land managers when preparing their rights of way improvement plans. I beg to move.

Lord Northbourne

I rise briefly to support the amendment because I hope that the Minister will take positive note of it. My objective in the debate has been to try to minimise any friction that may occur between landowners and operators on the one hand and the needs of walkers on the other. For that reason, I believe that this amendment is essential if we are to ensure that those who take the decisions on new rights of way shall at least understand the problems of landowners.

Perhaps I may take a minute of the Committee's time to give a practical example of which I have been extremely aware in my career. Around 20 years ago, my farming enterprise moved into the area of producing salad crops. The modern way of producing such crops is to plough rows of beds longitudinally across the field. Those beds then have to be irrigated by systems which walk, as it were, across the field down the lines. One can imagine how inconceivably complicated it would become if a path was drawn diagonally across such a field. Irrigation systems are extremely expensive to install, so it would be important, in a circumstance where a right of way was to be created over a piece of land where such an operation was being undertaken, to hold discussions on what the possible future implications might be in terms of the rotation of crops which might bring into row crop production pieces of land which were resting at the time or under another form of culture. I give this example as a practical illustration of the problems we face here.

Lord Hardy of Wath

I can see the point of consultation and the case which has been made to ensure that sources of friction are avoided. To that end, I certainly do not seek to create friction with the point that I wish to make.

The reference by the noble Baroness to horses has caused me a tinge of anxiety. In my time I have seen a good number of footpaths become scarcely passable, in particular following bad weather, because people have turned those footpaths into bridleways. It will not be possible for many footpaths to accommodate the increasing number of horses which may follow the Government's policy of urging farmers to diversify into this area. Nevertheless, I would prefer to see farmers diversifying into horses rather than establishing puppy farms, which some farmers did on the advice of the previous government.

If we are to take a favourable view of an expansion in horseriding—it is a healthy activity—I trust that we shall not see any move to encourage the conversion of footpaths into bridleways, especially where footpaths are not suitable for that purpose.

Lord Addington

I rise briefly to ask whether this amendment is in any way necessary. Consultation forms a part of the process. Furthermore, what kind of local authority would not take into account genuine economic uses of land? If the amendment is accepted, I believe that we would be creating even more of a lawyer's paradise than has already been done.

Baroness Strange

I should like to support this amendment. As the noble Baroness, Lady Byford, pointed out on Monday, rights of way historically came into being between points A and B because there was a need for them. In former times they served the need to go to church, to school or to the local shop by the shortest possible route. With the coming of railways, travel by foot, pony trap and horse and carriage was superseded by train travel. Rights of way were then created which approached the nearest railway station. With the arrival of the internal combustion engine, everything changed again. Nowadays people rarely go to church, but if they do they go by car. Children travel to school by bus or use the local taxi and people go to the supermarket or even to the local shop by car. As a result, local railway stations have closed down.

Such rights of way are rather like the three boxes of string bequeathed to us by my grandmother. One contained long bits of string, one contained short bits of string, while the third box contained bits of string too short for further use. I believe that these rights of way are like the third box of string.

5.45 p.m.

Lord Whitty

I shall have to consider the point made by the noble Baroness as regards the third box of string and work out what it means. However, I do not think that the provision sought by the amendment is necessary. We are not considering individual rights of way here but rather rights of way improvement plans.

We fully accept that the needs of agriculture and other economic activities in the countryside need to be recognised by local highway authorities when developing their plans. Perhaps I may offer the noble Baroness the assurance that she seeks by saying that it is certainly our intention to ensure that all the major bodies representing land managers, users and others with an interest in the land are consulted by highway authorities during the preparation of the improvement plans. Among other things, Clause 57 empowers the Secretary of State to prescribe consultees in regulations, if that is required.

At present, local authorities are under no obligation to take a strategic overview of the quantity and quality of rights of way in their areas. That is why we have proposed improvement plans—to fill a major lacuna in extant rights of way legislation. Clause 56 aims to fulfil that.

The purpose of the clause, therefore, is to require local authorities to do a little thinking about how they wish to develop, improve and modify rights of way for the benefit of the public as a whole. Furthermore, we recognise that this applies to all local authorities, not simply those highway authorities which deal with rural areas. Land managers are members of the public—they are significant members of the public in many of the relevant areas—and their needs will have to be taken into account by authorities when drawing up their plans according to the provisions already laid down in the Bill.

Authorities will also be required to have regard to the statutory guidance, in which attention will be drawn to the importance for the local economy of a comprehensive and well managed network of rights of way. That means that they must consider the needs of local businesses, local farmers and land managers who are diversifying into tourist related activities as well as the more traditional pursuits. I believe that all this will be covered both by the clause as it stands and by the regulations that will be made under it.

As regards individual rights of way, we have of course dealt with that matter previously. It will be necessary for local authorities to be more specific about land management in particular. To that end, earlier clauses stipulate the need to have regard to the needs of agriculture, forestry and—as a result of an amendment adopted during a previous Committee sitting—the keeping and breeding of horses. But the plans themselves will also be concerned with wider issues. For that reason, if we were to prescribe land managers, it would become necessary to prescribe various other groups.

Perhaps I may assure the Committee that land managers will be covered by the consultation process. It is also the case that under Clause 57(2), having published a draft plan, authorities will be required to consider any representations made as regards the draft. Thus, both on consultation and on the basis of the draft plan, land managers will have the means to influence those decisions. I hope that, with those reassurances, the noble Baroness will not pursue her amendment.

Baroness Byford

I thank the Minister for his full response. I accept his assurances. I am grateful to him for adding that those concerned will have an opportunity to look at the improvement plans and, where necessary, to appeal against them.

I was going to thank the noble Lord, Lord Hardy, for his contribution but, given the vein of his remarks, I am not sure that I should. We missed the noble Lord on Monday when we had serious debates about the way in which some of our footpaths and bridleways are currently being spoilt. When he has an opportunity to read Hansard, he will find that we had a good debate on that issue.

I thank other noble Lords for their contributions. I should say to the noble Lord, Lord Addington, that this is not intended to be a lawyers' paradise. It is a sincere attempt to ensure that the people on whom the general public rely for their rights of access are not short-circuited when the improvement plans are brought forward.

Having had those assurances from the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 416: Page 34, line 44, at end insert— ("( ) the desirability of providing opportunities for regular exercise in the interests of public health including the availability of circular walks and cycle tracks easily accessible to residential areas,").

The noble Lord said: The amendment concerns the health of the nation. It concerns giving more people the opportunity to benefit more often from regular, health-giving walks and cycle rides. It seeks to require local authorities, when preparing their quinquennial rights of way improvement plan, to consider the desirability of providing opportunities for regular exercise in the interests of public health, including the availability of circular walks and cycle tracks easily accessible to residential areas.

The Government pride themselves on their concern for public health. If I were them, I would have put access and exercise at the very heart of the Bill. Recent research has shown that more than 70 per cent of the population take less exercise than they need for their own good. Opportunities for exercise need to be attractive to people; they need to be pleasant and they need to be accessible to the places where people live.

To make clear to the Committee the importance of exercise—and particularly walking for health—I can do no better than to quote Dr William Bird of the Sonning Common health centre, which has been seminal in addressing this subject. He is a pioneer and member of the access forum. In a recent letter to me he said, inter alia, Perhaps without realising it, this Government has the potential in this Bill to create the most important public health change since the Clean Air Act 1953. In fact, the health benefits to society and to the NHS could probably be greater. Increasing physical activity from sedentary to walking two or three times a week halves the risk of having a heart attack, a stroke or of developing diabetes. In fact, lack of exercise is as important a risk factor for heart disease as smoking, high cholesterol or blood pressure, and it affects twice as many people as all the other risk factors added together. Exercise also significantly increases the length of time an older person remains independent by reducing the risk of falling and fracturing a hip, among other things". He goes on to say, rightly or wrongly, that, There is no argument to suggest that health will somehow improve with the wording of this Bill as it is. It won't. One clause must be added to the statute book and then Britain will be the envy of every other Western nation trying to tackle the epidemic of physical inactivity".

Amendment No. 416 would place health at the heart of the Bill. It would require local authorities to consider providing opportunities for regular exercise in the interests of public health when they are preparing their rights of way improvement plans.

I believe that the Minister may say that there is no need for this amendment because authorities are already required to consider the needs of the public. With respect, I disagree. As the Bill is drafted, there is not a single mention of health. With the wording of the Bill as it is, some local highway authorities will take health into account in preparing their plans—but a considerable number will not. Indeed, those who do not want the expense and sweat involved will simply ignore the issue of public health. As far as I can see—the Minister may correct me—there is nothing in the Bill that enables the Government to prevent them from doing that. There is nothing in the Bill to persuade them or force them to take health into account in preparing their plans.

I suggest that, in view of the importance of health to the nation, to the taxpayer and to each of us, the amendment should be accepted. The desirability of amending the public rights of way to benefit the health of the nation should not be left to chance. I beg to move.

Baroness Strange

I support the amendment of my noble friend Lord Northbourne. Anyone who is the least bit interested in health—and most of us over the age of 21 are—will know that there are three essentials for a long, healthy life: a clear conscience, a healthy diet and a reasonable amount of exercise, both mental and physical. Many Members of the Committee fulfil all these criteria. In regard to the third criterion, I think the Committee will agree that there is nothing better, nicer or healthier than walking in the countryside in the open air—provided, of course, that you can do it with a clear conscience and do not destroy or spoil someone's livelihood.

Many people like circular walks because they do not need to retrace their steps through the same scenery. We should be creating circular paths for the future health of our nation.

Baroness Nicol

Many Members of the Committee are smiling kindly about the amendment. I think it is an attractive proposition. I suspect there will be very few places where this can be done, but I see no harm at all in drawing the attention of local authorities to the attractions of circular walks, so that where it is possible to create them they will at least consider the possibility of doing so.

Circular walks are attractive to many people because, as the noble Baroness said, one avoids the necessity of having to retrace one's steps, which can be very boring; or, alternatively, the necessity of having to find transport or an unmarked way back.

I hope that some thought will be given to at least putting on record the thought behind the amendment so that local authorities are reminded of the possibility.

The Lord Bishop of Blackburn

There is no doubt that the work of Dr Bird has been seminal in this area. The ideas and practicalities that he has worked out at his own health centre certainly deserve support. He has passionately pursued the issue with the Countryside Agency, the National Access Forum, the British Heart Foundation et al.

I do not have a problem with the first part of the amendment—that is, the desirability of providing opportunities for regular exercise in the interests of public health". It is important to put that on the face of the Bill. However, when it becomes prescriptive about circular walks and cycle tracks, that is one step too far—although I support the comments of the noble Baroness, Lady Nicol, about the desirability of circular walks.

When the Minister replies, I hope that he will give some encouragement for the work to continue, and an indication that a nudge of this kind may be included in the legislation.

Baroness Warnock

I support the amendment. Quite apart from the question of public health, which is important, it seems to me that the enormous majority of people who want access to the country prefer fairly short circular walks of three or four miles. In my part of the country—east Wiltshire—these walks are extremely popular, as indicated by the number of books and maps with titles such as "Six Walks Around Marlborough", or something of that kind. In fact, one does not see many people on these walks, but I think they are what people want—far more than they want access to wild parts of the country that cannot easily be reached except by using another form of transport.

I am strongly in favour of including in the Bill a provision for the creation, wherever possible, of circular, fairly short walks. Such provision would no doubt have a spin-off in terms of public health. But whether that should be the first motive, or whether it should be to satisfy what I am sure is a real desire on the part of people, I do not mind.

6 p.m.

Lord Renton

The idea that townspeople should have the advantage of the countryside is an ancient idea and principle but it has never been adequately implemented. Indeed, nearly 2,000 years ago a Roman senator pleaded that there should be rus in urbe. But we now have towns where there is no park and no easy access to the countryside. We ought to be observing that principle.

From time to time, the principle has been observed. I was delighted to hear the noble Lord, Lord Northbourne, refer to the Clean Air Act, which I took part in piloting through another place in 195:3. In London, the parks are a help to many people; but there are parts of London where there is no access to the countryside without travelling a long distance. We should conscientiously try to implement the principle put forward by the noble Lord and the noble Baroness, and this Bill offers the opportunity. Admittedly, it is a countryside Bill, but there is no reason why it should not be blended with the need to give townspeople the advantages of the countryside so far as possible.

Earl Peel

I, too, support the amendment moved by the noble Lord, Lord Northbourne. It was interesting that time and again during the consultation process representative groups and individuals commented on the need for a proper footpath system near to areas where people actually live. Circular walks received particular mention.

I am certain that opening up large tracts of open land will appeal to a certain type of person and that more people will begin to enjoy the opportunities afforded to them. But many, I am certain, will seek opportunities nearer to home, and the amendment goes some way towards addressing that need. Whether such proposals will lead to a clear conscience, as was suggested by the noble Baroness, Lady Strange, I do not know. That apart, I strongly support what the noble Lord has said.

Lord Renton of Mount Harry

I, too, support the amendment moved by the noble Lord, Lord Northbourne. It is a well-known fact that the deterioration in health in this country is in large part due to lack of exercise. Anything that can be done to encourage those who live in towns to go out into the countryside and take more exercise is for the better.

I declare an interest as chairman of the Sussex Downs Conservation Board. The board has made a strong move in recent years to develop what the noble Lord, Lord Northbourne, rightly described as circular walks. Under the heading, "Take your bus for a walk", we have put out a number of leaflets, for example, to those living in Brighton, showing how they can take a bus out of Brighton into the Sussex Downs, get off the bus, walk through the Sussex Downs for three or four miles, possibly stopping at a pub on the way in the middle of a walk—which I am sure would also be good for their health—and then return to the bus stop or another bus stop and thus return to Brighton. These have been extremely popular, and we are in the process of increasing the number of leaflets that we produce.

I follow up the point made by the noble Lord, Lord Northbourne, and the noble Baroness, Lady Strange, in introducing the amendment. I very much hope that this proposal will find favour with the Government and that some provision along these lines will be inserted in the Bill.

Baroness Masham of Mon

I hope that smooth surfaces for wheelchairs and pushchairs will be planned for circular walks if they become popular. People in wheelchairs who have disabilities have to keep themselves fit in the community, perhaps even more than those who do not have a disability.

Baroness Carnegy of Lour

There is one point in favour of the amendment which no one has mentioned—possibly because it is so obvious. Many people from towns and cities visit more remote areas, but they go there in their cars, they congregate at a picnic place, they sit down and have a picnic and may then walk 50 yards up a hill or along a road; they then go back to their car, go home and say that they have had a day in the country and have thoroughly enjoyed it. It certainly does not help their health, and they miss a lot too.

The kind of invitation suggested by my noble friend Lord Renton and the noble Baroness, Lady Warnock—an invitation possibly to choose between several circular walks, with documentation describing what can be seen there and mentioning points of interest—is an attractive one. It might induce people who visit an official picnic place and feel that they have seen everything that there is to see in the wilder countryside to expand their horizons. I hope that the Government will take this idea on board in some way and that if they do not accept this amendment they will frame one which encourages this kind of activity.

Lord Greaves

I support the amendment, with two cheers rather than three—which I shall explain shortly. Its content is positive. This clause, dealing with rights of way improvement plans, is the only provision in Part II of the Bill offering positive encouragement to walkers, riders and cyclists to believe that there is indeed an intention to improve the rights of way network rather than look for ways of restricting it, making it smaller, reducing the status of rights of way with higher rights and so on.

As I said earlier, there is a general view among many organisations and among many users of countryside rights of way that Part II of the Bill contains little for them and that its purpose is possibly to provide a sop to landowners, who will clearly have their rights over the land that they own reduced under Part I. Whether right or wrong, that view is widely held among ramblers, riders and so on. It is important that the final version of the Bill should give encouragement to people and offer a clear indication that that is not the case. The amendment provides a positive statement of the purpose of rights of way improvement plans. To that extent, it is valuable.

Circular walks have been discussed. Being slightly pedantic, one might say that they could be triangular, rectangular, rhomboidal or whatever, and it does not really matter. The point is that they do not have to be circular. They could be linear, if we are talking about areas within reasonable reach of urban areas where public transport can be provided to drop people at one end of a walk and pick them up at the other end.

My first introduction to the countryside was with my old aunt—at least, she was not old in those days—whom I would describe as a Manchester rambler. We used to get on the train at what was called "London Road Station" in Manchester and visit the Peak District. We would get off the train at one station and walk. At the end of the day we would return by train from a different station. There were special ramblers' tickets available in those days which allowed people to do so. That is an idea that local authorities and highway authorities should consider when looking at rights of way improvement plans.

Those authorities should be taking a positive view of these improvement plans; for example, they should be considering how they can improve the rights of way network, and the services associated with them, in order to provide people with the kind of open-air recreation that we are discussing. I am delighted to find that, on this issue at least, the noble Earl, Lord Peel, and I are absolutely on the same side.

The amendment also talks about "cycle tracks". I should declare an interest in that I have a bike and I use it. I can often be seen puffing miserably as I cycle up the Pennine hills and then recovering somewhat as I ride down the other side. The cycle way network in this country is abysmal. Improvements have been made recently in different places, but, in general, it is abysmal. That is true in urban areas, on the fringes of urban areas and in the rural areas. As part of the work that local authorities and highway authorities will undertake following the passage of the Bill, I hope that a much more sustained attempt will be made to improve cycle ways—not just the long-distance ones that organisations like Sustrans are considering, but also local ones.

I had my eyes opened during the summer of last year when I spent part of my holidays cycling across France, which was a fascinating experience. I was absolutely astonished by the standard and quality of cycle ways in many of the areas of France that I visited. Indeed, it really puts this country to shame. Those are the two cheers.

I should like to give the amendment a third cheer, but I shall not. That is because of the absence in it of any reference to bridleways. I am not a horse rider, although I have done enough in my life to know which end of a horse is which. However, I would not describe myself as a rider. The refrain that I am certainly getting from the horse riders to whom I have spoken about this Bill—and, indeed, from the bridleway organisations—is that there is nothing in the Bill for them. That is a constant refrain. The Government really must take this issue seriously.

The first bullet point on page 7 at paragraph 2.2 of the Government's original consultation paper, Improving Rights of Way in England and Wales (published in July last year) referred to, encouraging the creation of new routes, including more provision for cyclists and equestrians". It is not very clear where such "new routes" for equestrians are to be found in the Bill. There is a view in some quarters that horse riders are fairly well off in general; that they can look after themselves. Some people in my area consulted one of the local Members of Parliament. They were told that if they wanted to ride horses it was up to them to buy their own land.

The kind of proposals put forward by the noble Lord, Lord Northbourne, should also apply to bridleways. I say that because 25 per cent of horse riders have an annual income of £10,000 or less, 80 per cent are female and over half of them are under 25 years of age. We are talking about a very important and significant section of the population. At present, bridleways make up only 20 per cent of the network. In the mid-Pennines, my part of the world, the figure is a great deal less.

If a proper bridleway network is to be provided, the rights of way improvement plans that local authorities will develop must tackle not just circular walks and cycle-ways; they must also tackle the major problem of the creation of bridleways. There is a fear that, after this legislation is passed, many arguments will take place rather more vigorously and quickly than has hitherto been the case about the status of routes, and so on. Many people—led, perhaps, by some landowners—may try to downgrade existing bridleways and turn them into ordinary footpaths. We need to see a positive programme from the Government as regards these rights of way improvement plans in the Bill along the lines put forward by the noble Lord, Lord Northbourne. That programme should include not just footpaths and cycle-ways: it should also include bridleways.

6.15 p.m.

Lord Wright of Richmond

I should also like to express my support for the amendment. I hope that Members of the Committee will allow me to take a few minutes to commend the example set by Luxembourg, where I lived in the 1970s. At that time, Luxembourg had already published information on well over 100 circular walks that could be taken in that very small country. Such documentation showed not just the point at which one could join the walk by public transport or by car—and where there was a car park, a railway station or a bus station; nearly all of it specified picnic areas so that one could take one's picnic to a certain place and then go on a circular walk of the length of your choice. However, not content with the "exercise advantages" of a circular walk, the Luxembourgers also put in many of those walks what was known as a "fitness parcours", which is an exercise place where, if one had not taken enough exercise, one could take a little more.

Lord Hardy of Wath

I shall be brief. I was pleased to learn about Luxembourg. My local authority has been issuing circulars describing walks in its area for quite a long time; indeed, I believe that the first of these was published about 10 years ago. My concern at this stage relates to cycling. I worry about children cycling on main roads. The noble Lord, Lord Greaves, is a great deal braver than I because I would not wish to cycle on a British highway these days. Parents often buy their children bicycles, but they do not want them to ride them on main roads. Indeed, they want them to stay very close to home in the housing estates, and so on, where the neighbours complain that they are a nuisance.

However, that is not perhaps a problem for this particular Bill. We need to have areas where children can cycle safely, but that would not necessarily be in the countryside some distance from their home; or, indeed, on the major roads. A contribution towards ensuring safe cycling could be provided in this Bill, but I do not think that the sole answer to the problem lies within this legislation. We should certainly be promoting child health. As one noble Lord said, children are now less fit than they have been for many years. If they are to burn up the calories provided by junk food, we must find ways for them to exercise. This Bill can make a contribution, but other Bills must also make contributions to that effect.

Baroness Miller of Chilthorne Domer

I rise to speak to Amendment No. 443A, which has been grouped with Amendment No. 416. My amendment reflects several issues mentioned by noble Lords. I am glad to have been able to listen to the contributions to the debate. The place for such facilities is very much a matter for the Bill. My amendment is based upon the very strong requests from the Cyclists' Touring Club and the British Horse Society that this Bill should do something for them.

When we raised the issue of cycle tracks on the previous Committee day, the noble Lord, Lord McIntosh, said: A cycle track is a specific kind of right of way … In the rest of this part of the Bill we are dealing with rights that have existed back into the mists of time".—[Official Report, 9/10/00; col. 61.] He went on to suggest that that was not the right place to deal with cycle tracks. But if we are dealing with the rights of way improvements plans and a real network, we need to deal with all rights of way at the same time.

I am sure that many noble Lords are aware of this, but, for those who are not, I should remind the Committee that it was the Countryside Act 1968 that gave cyclists the right to ride on bridleways for the first time, provided that they gave way to walkers and riders. Since that time, cycling has grown apace. I am very pleased about that development. However, one of the spin-offs is that some of our bridleways are literally being tarmacked over. Moreover, the verges that many riders have used to get off the road and out of the way of cars are also disappearing under tarmac, as the verges are used for cycle ways. Yet riders frequently have no right to use those cycle ways.

The Government may say that local authorities in designating cycle tracks can specify that they are to be used by horse riders too. However, my amendment makes it absolutely plain that, where the access authority agrees—I draw the Minister's attention to that point as there will obviously be occasions when the measure is not appropriate—both riders and cyclists should have access to bridleways and cycle tracks.

One of the main tenets of Part II is to promote exercise and health, as the noble Lord, Lord Northbourne, said. People's health is improved by taking exercise on pathways that are not used by cars. That applies to pedestrians, horse riders and cyclists.

As my noble friend Lord Greaves said, there is little provision in the Bill for these groups at present. Cyclists support the view of the British Horse Society that cycle routes should be made available to horse riders. There will obviously be much discussion as to who will give way to whom. However, I hope that the Government will not use that as an excuse to do nothing about the matter. The Minister assured us that much public money will be spent on improving the rights of way network. Bridleways should be used by as many people as possible, as should cycle tracks. The fact that up until the present the latter have not been included in the legal framework of the definitive map should not mean that we perpetuate them as a completely different part of the network. The network should cater for everyone and seek to keep people off the roads.

Baroness Mallalieu

I support what others have said about circular walks. I suspect that will be the provision that affects most people. I also support Amendment No. 443A in the name of the noble Baroness, Lady Miller of Chilthorne Domer.

Our present bridleway network is painfully inadequate and is becoming more so day by day. As the noble Lord, Lord Hardy of Wath said, some riders are consequently taking to footpaths. That can lead to conflict. As we all know, recreational activity on the part of riders is a vast and growing part of the rural economy. I understand that there are now some 3 million horse riders in England and Wales, the vast majority of whom—as the noble Lord, Lord Greaves, has already said—own no land and therefore have to ride on bridleways, tracks and roads. I think that it is right to say that only 20 per cent of the current rights of way network is at present open to riders. Unfortunately, the expansion in riding has also coincided with a vast increase in road traffic, particularly on country roads, with consequent increased dangers for both animals and people. Some eight horses are killed every day on the roads, not to mention the people with them who are killed and injured. The one thing we should try to achieve in the Bill is to get those people off the roads and on to paths.

Other Members of the Committee have made my next point. I believe that many people are disappointed with the Bill, particularly in relation to its limited proposals for removing the growing number of riders and horses from the roads. The noble Baroness's amendment provides an opportunity to do that.

As I understand it, £200 million is to be spent on establishing the national cycle network. Surely the principle of value for money, which we are told should apply to government legislation, should dictate that the routes we are discussing should be used by people other than cyclists. They should also be used by walkers and riders.

I give one brief illustration of the increased difficulties which the national cycle network is causing. On the A39 which, as some Members of the Committee may be aware, runs in part from Minehead to Carhampton, there is a great deal of heavy traffic. The road comprises, for the most part, one lane in each direction. There is no alternative bridleway for a horse rider to take. The verge which was used has been turned into part of the national cycle network and tarmacked. Horse riders are no longer allowed to use that particular part of the track. The remaining part of the verge is inadequate. Therefore horse riders are effectively forced back on to the road. It cannot properly be argued—although I know that it has been by some—that horses damage tarmac but, as regards the national cycle network, sections of bridleways are being tarmacked (and rightly so) where they are to be used by cyclists.

I hope that the noble Baroness's amendment will be accepted as I believe that it would go some way to mitigate the considerable disappointment of riders if the provisions of Part II are not improved.

Baroness Carnegy of Lour

The noble Baroness made an absolutely fascinating speech on a topic that she knows so much about. She mentioned the figure—which I find astonishing—of 3 million people in England and Wales who ride horses. Does she know how many of those people hunt?

Baroness Mallalieu

I understand that something of the order of 250,000 people hunt on horseback. Of course, at least twice that number hunt on foot, bicycle or in cars.

Lord Rotherwick

I apologise for entering the discussion on the amendment at a late point. I support the amendment and all that the noble Baroness, Lady Mallalieu, said about horses. However, I do not totally agree with what she said about horses not damaging tarmac. I have certainly had tarmac badly damaged by horses wearing competition studs.

As a land manager I have observed the progress of a recently created circular walk which was highly contentious when established. However, it is of tremendous benefit to the local community. From my observations of that circular walk I believe that a proper code of practice needs to be established. I have seen galloping horses on the footpath disturbing walkers. Those horses are not meant to be on that footpath. I have also seen cyclists behaving in an undesirable fashion.

With the much needed increase in the footpath network, I hope that certain disciplines will be enforced on the people using it. If more rights are to be given to footpath walkers—we agree with that—those should also entail responsibilities. It is all very well to talk of a wonderful new footpath network, but there is a requirement for year on year funding. I am afraid that the footpath and cycle networks in this country are woefully lacking compared with those on the Continent. Our networks are especially inferior to those in the United States. I support the amendment but I am interested to know from where the year on year funding will come.

6.30 p.m.

Lord Addington

I speak to Amendment No. 416A as it relates to ground covered in this debate. I hope that that will be for the convenience of the Committee. It gives the power to create new footpaths which will link in with existing paths and ensure that certain paths are accessible to those with mobility problems—for instance, partial sight or other physical restriction.

The amendment ties in with Amendment No. 416 and relates to those who are often excluded by small changes in their physical environment. Indeed, the noble Baroness referred to improved surfaces so that someone in a wheelchair, or those pushing a child's buggy, have access. An elderly person, or someone recovering from an illness, will be able to use the facility. If those individuals wish to progress to more demanding walks such a facility would be a good first step. Amendment No. 416A ties in with the debate on Amendment No. 416 if we consider the issue in a holistic manner.

I think that the noble Lord, Lord Northbourne, has missed a trick. It would have made more sense to include this provision in the Long Title of the Bill. In this debate we seek to make new footpaths more accessible. I hope that my amendment will gain a fair wind from the Government.

Baroness Byford

I thank the noble Lord, Lord Northbourne, the noble Baroness, Lady Miller, and the noble Lord, Lord Addington, for their contributions to the debate. We have discussed the issue for nearly 40 minutes. I think that it reflects how important we consider the provision of the facility for exercise.

The noble Baroness, Lady Strange, said that all of us over the age of 21 would need such provision. I suggest that that need starts from the cradle. Good health starts when one is very young. We "oldies" should encourage those younger than ourselves. My grandchildren are taken on as many walks as possible around the countryside. It is an important issue, not just for adults, but also for children. I am not telling the noble Baroness off; I believe that it is such an important factor.

In his introduction, the noble Lord, Lord Northbourne, referred to the British Heart Foundation. I, like one or two other noble Lords who have had the unfortunate experience of having a heart attack, know how important walking is. Having left hospital, one is a little hesitant to go too far. Building up those walks is important. I walked for half a mile, a mile and then a mile and a half. It is an important issue on which the Committee will reflect.

The noble Lord, Lord Hardy, touched on cycling, which I enjoy (when we are not debating in this Chamber!). I understand the worry of some parents about the safety of their children when out riding. Wearing helmets is part of their security. That is an important issue to which we shall return.

I have to go back to square one. The original aim of the Bill was to give greater access to walkers. One of the difficulties facing the Government is that there may not be sufficient provision in the Bill for horse riders and cyclists. When the Minister responds perhaps he will cover that point. I should declare an interest as an ex-rider of horses; I am now retired from that activity. In many areas we are lucky enough to have reasonable access to rides. But close to my home is a farmer who has diversified. He now has about 50 horses. They are his main income. Those horse riders are completely dependent on the rides available. It is quite a problem. The farm is not on the main A13 but even on our country lanes some people pass at worrying speeds. We must not lose sight of that.

My noble friend Lord Peel mentioned the need for footpaths near to where people live. Members of the Committee have referred to that. Perhaps I may say to the noble Baroness, Lady Mallalieu, that many individuals are disappointed that the Bill does not contain provision for riders. But as I said, I suspect the Bill was never designed to cater for such facilities. On Second Reading, I think in another place, the Minister referred to that and suggested that at a later stage the Government would come back with some provision for horse riders and cyclists. The Minister may wish to comment on that. I agree with noble Lords that this improvement plan gives us the opportunity to look much wider. When the noble Lord winds up I hope that he will be able to do so.

I return to the question of footpaths. I remind the noble Lord, Lord Greaves—I am concerned about the narrowness of his view—that many landowners (I cited the example of my own farm) are now in negotiations with MAFF to open up new public paths.

Lord Greaves

Perhaps I may reassure the noble Baroness that my point of view is not narrow. I welcome the moves in this direction. Catering for the needs of walkers and riders in the countryside is a means by which farmers and others will be able to make a living.

Baroness Byford

I appreciate the noble Lord's interjection. It is not just the question of footpaths being restricted but the creation of new paths.

It has been an excellent debate. I thank the three noble Lords who have made it possible. I commend the amendment.

Lord Whitty

As the noble Baroness says, it has been a good and wide-ranging debate, much of which I agree with. At the end of the day I am not sure that any of these amendments are the best way to achieve noble Lords' aims.

As regards public health, I have some sympathy with what the noble Lord, Lord Northbourne, says. Indeed, my own doctor told me yesterday that I should take more regular exercise and not be stuck in the House of Lords all night! We consider that the public health dimension is covered effectively by the reference in the clause to open-air recreation. That covers this aspect of public health. Public health more broadly is not addressed by providing rights of way.

Many of the provisions in the Bill will have the effect of improving health. However, the way in which it should be addressed by individual authorities in individual cases needs to be kept reasonably flexible.

There are a number of topics. Perhaps I may address the issue of circular walks. Circular walks may or may not consist entirely of rights of way. Some of the paths which make up circular walks may well be permissive paths rather than rights of way. Clearly, the Bill already requires local authorities to consider the adequacy of existing rights of way. The question of circular paths comes into the likely future needs and therefore should be covered by the improvement plan. There is a problem in specifying circular walks and nothing else—quite apart from the geometric quibbles of the noble Lord, Lord Greaves. A number of other desirable forms of walk have been referred to: access to public transport which connects with where people live; connecting with viewpoints and other attractions; and access for the disabled, which is partly covered in the next clause. Those are all desirable types of walk. If we specify circular walks and nothing else, there is the danger of that being too restrictive.

We intend that the Secretary of State's guidance under this clause should contain clear advice that authorities should create circular walks or, where appropriate, circular routes; and there will be other provisions dealing with the other desirable types of walk. But if one limits it to that aspect, there is a slight difficulty.

We recognise that there are many factors which local authorities will have to take into account when developing their improvement plan. If one puts particular weight on circular walks, there could be a problem of exclusion of other issues.

By cycle tracks we mean highways with a right of way for pedal cycles with or without a right of way on foot. Although we focus on access by foot in the first part of the Bill, rights of way include those for horse riders, cyclists and, indeed, vehicular traffic. The issue becomes more complex in this part of the Bill.

As the Bill is currently drafted, cycle tracks, with or without a right of way, may not be covered by the definition of "local rights of way" and would therefore be excluded from the rights of way improvements plans. We want the interests of cyclists to be properly represented in the Bill. We can see the sense in making sure that cycle routes are included. We agree that other countries such as France may have a better balance, although we have made substantial improvements to our network over the past few years. We are prepared to consider an amendment to extend the definition to cover cycle tracks.

However, there is a possibility of conflict between horse riders, cyclists and walkers. I shall come back to that. The point raised by the amendment of the noble Lord, Lord Addington, and by the noble Baroness, Lady Masham of Ilton, is in part covered by Clause 56(2), which requires local highways authorities to assess the extent to which local rights of way meet the present and likely future needs of the public". Clause 57 relates particularly to the needs of people with mobility problems.

Lord Roberts of Conwy

Will the Minister say more about what the Government have in mind for people with mobility problems? I am sure that he is aware that catering properly for people with mobility problems will be very costly, with the need to remove stiles and make other changes. Do the Government have a plan?

Lord Whitty

As the noble Lord, Lord Addington, said, it will not be appropriate for all rights of way to have wheelchair access, for example, but in the overall improvement of the network of rights of way, attention must be paid to providing adequate access to rights of way that would be appropriate for disabled people who have mobility problems. The vast majority of people who suffer from other disabilities are able to use footpaths anyway, so issues such as signing are important, but wheelchair access clearly has to be taken into account, although we must recognise that it cannot be provided on all rights of way.

The noble Lord, Lord Greaves, the noble Baroness, Lady Mallalieu, and others asked about horse riders and bridleways. Local authorities have the power to create bridleways under the Highways Act 1980 and we agree that there is a case for more of them. The Bill will require authorities to take that into account in developing their rights of way strategy. Local rights of way will include bridleways. Local highways authorities are under a specific duty to consider the needs of the public. That clearly includes horse riders.

Lord Greaves

I understand that there are national targets for the length of new cycle tracks to be developed every year or every five years. Will the Government consider adopting similar targets for the creation of new bridleways?

Lord Whitty

That is rather difficult. I cannot commit myself to it. Cyclists clearly use particular tracks, but bridleways are not the only rights of way that horse riders benefit from in the countryside.

Baroness Miller of Chilthorne Domer

One of the anomalies of current legislation is that an access authority can upgrade a footpath to a cycle track under the Cycle Tracks Act 1984, but upgrading a footpath to a bridleway comes under the Wildlife and Countryside Act 1981. That is a more lengthy process that can take up to 10 years. Bridleways and horse riders lose out time after time because of the difficulty of that process.

6.45 p.m.

Lord Whitty

The rights of way improvement plans will need to address whether more bridleways are required and the appropriate powers will be used. Some aspects of that come under the Highways Act 1980, some come under this Act and some come under the Wildlife and Countryside Act 1981. The clauses require an overall approach by the local authority. On bridleways, if cyclists have a right of way they must defer to people on horses. All-purpose highways can be made available, giving equal rights to horse riders, cyclists and pedestrians, or a margin by the side of the highway can be created under the Highways Act 1980. There are many ways to make provision for horse riders, not necessarily involving local rights of way.

However, there is some conflict, as my noble friend Lord Hardy of Wath mentioned. Making all footpaths available to horse riders would be detrimental to the interests of walkers and the operation of the rights of way provisions. A balance has to be created.

Similar problems arise when we consider in detail Amendment No. 443A, tabled by the noble Baroness, Lady Miller of Chilthorne Domer. It relates to cycle racing and access to tracks by cyclists. One of its aims is to allow cycle racing on bridleways, subject to certain conditions. It would also allow racing between horses—or even, theoretically, between horses and cyclists—on any cycle track. As a quid pro quo, it would allow horse riders to use cycle tracks.

That is all very nice provided that everybody agrees, but there could be conflict. The amendment would make such permission conditional on a traffic regulation being made, which is another procedure to be gone through, but any racing would be subject to the conditions of the Road Traffic Act 1988.

There is a procedural question as to whether this Bill is the right vehicle to amend the law in respect of cycle racing, or, indeed, any sporting event. I think that the noble Baroness referred to the Government's separate procedure looking at changes in the road traffic regulation law, which has already covered cycle racing, including on bridleways. We are taking that review forward separately from the Bill. We understand that that is the preferred approach of organisations that represent horse riders, who have strong reservations about the issue being dealt with in the Bill.

A lot of cycle tracks would be unsuitable for races or trials of speed involving horses and could pose a danger to the rider and the horse. Cycle tracks are often not very wide and a race would obviously create greater stresses. The surface could be dangerous to the horse in some circumstances. I suspect that the amendment is aimed at a particular situation rather than more general circumstances. Looking at all the implications of the amendment, it would be better to deal with the issues raised in our review of the road traffic regulation laws rather than in the Bill, which could lead to substantial conflicts. Therefore, I hope that she will not pursue that amendment when we come to it.

I return to the amendment in the name of the noble Lord, Lord Northbourne, which is the first—

Lord Boardman

Can the noble Lord help me on that point? Did I gather from what he said that under the proposals in the Bill footways can be turned into bridleways without the complexities and delays that currently exist in relation to such conversions?

Lord Whitty

No, I did not say that, except in so far as the general provisions in the Bill will provide for redefinition. In relation to these clauses, the improvement plans for rights of way generally in each local authority area would identify areas where there was need for improvement. That would include the need for improvement of bridleways. However, the process by which that would normally be carried out would come under road traffic regulations rather than under the procedures in this Bill. With regard to both cycling and horse-riding, I understand that, because of the more general implications, the general view of people involved in those activities is that that is probably the better way to proceed.

However, that does not mean that the Bill and the improvement plans under these clauses should not include substantial provision in terms of planning for extending and making more accessible bridleways as well as footpaths. My other point was that clearly a number of footpaths would not be appropriate for such conversion. Therefore, the rights of walkers would also have to be protected in that regard, as I believe they are in the Bill.

We have now spent a full hour on this amendment and some interesting issues have been raised. However, I hope that the noble Lord, Lord Northbourne, will not pursue the amendment in this form. We agree about the importance of health but believe that that is reflected in the references to "open air recreation". Although we recognise the importance of circular walks, if they were specified in the Bill that would imply the downgrading of certain other desirable rights of way. I hope that the noble Lord will not pursue the amendment in that form and will therefore withdraw it.

Lord Northbourne

I am most grateful to Members of the Committee who have spoken from all sides of the Chamber. It appears that I have started something here. I did not expect to initiate such a full debate, but I am very glad that we had it because I believe that a number of important issues have arisen. The debate has highlighted the extent to which informed Members of the Committee are keen that the Bill should be seen as positive by making the rights of way network better rather than simply by niggling at points of detail. How that can be achieved at this late stage of the Bill, I do not know; probably to a large extent it cannot. However, it is sad that the Bill is not more creative so far as concerns the rights of way network.

The Minister said that he had sympathy for my concerns for public health. Both the Minister and the right reverend Prelate, who is no longer in his place, drew attention to the fact that the second half of my amendment was rather specific and possibly too limitative. I agree. Over the years I have developed a policy of trying to write amendments at Committee stage in such a way that Members can understand what they are about and then, if necessary, bringing them back in a simplified form later. Perhaps I may discuss the wording with the Minister before the next stage of the Bill. I suspect that I shall return on Report with wording which is similar to the first half of the amendment.

I do not believe that the words "open air recreation" necessarily have the same meaning as "health". Indeed, I consider that certain forms of open air recreation are thoroughly bad for the health. Some of the objectives could be covered by guidance. However, I believe that we should require strong assurances from the Minister about what such guidance would say. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Addington moved Amendment No. 416A: Page 35, line 14, at end insert— (""improved network" means a network where action has been taken to make it easier, safer and more enjoyable for people to use the network on foot or on horseback, by means that include (without prejudice to the exercise of other powers)—

1. (a) the creation of new public paths (footpaths and bridleways) to link with other rights of way in the network or to avoid walking or riding on roads;
2. (b) measures to make local rights of way more accessible to blind or partially-sighted people and others with mobility problems, including (but not limited to) the removal of stiles or their replacement by gates;
3. (c) measures to make it easier, safer and more enjoyable for people on foot or on horseback to use those carriageways which provide links between footpaths, bridleways and restricted byways, including (but not limited to) the exercise of traffic calming powers and powers to make traffic regulation orders;
4. (d) the creation of safe and convenient means for people on foot or on horseback to cross roads and railways;").

The noble Lord said: I have just realised that there was a specific point which I did not raise with the noble Lord and I apologise for that. It was in relation to making alterations to the plans in order to avoid being on public highways and having to deal with traffic. Does the noble Lord know whether under the Bill that would come under the creation of new paths or new activities? Although it is a small point, it is quite important.

Lord Hardy of Wath

I have a great deal of sympathy with the amendment of the noble Lord, Lord Addington. However, I have a reservation with regard to the replacement of stiles by gates. There may be cases when such a replacement would be appropriate. But I can think of a large number when it would not. Perhaps I may give two brief examples.

At the beginning of September my wife and I were walking down a hill and we saw a young man with a baby. It was a very happy looking baby. I said to my wife, "How old do you think that baby is?". She replied, "Well, it is certainly not more than nine months old". How long that baby will live, I do not know, because the happy baby and young man were on a quad bike. The bike was being steered by one hand and the baby held by the other. That is not an insurable prospect. I could not resist making a fairly tart observation to the man as he passed me. He slowed down until he had travelled another 200 yards and then accelerated mightily. I have seen him since in the same situation and have offered even firmer advice. That is the type of young man who would welcome a gate rather than a stile because it would enable him to continue to ride his quad bike and carry his baby.

That was not the only example. A few months ago I remember referring to the question of off-the-road motor vehicles. I said that there had been four deaths in my part of the country within a relatively short period of time. At the beginning of September there was a fifth. A girl of, I believe, 15 or 16 years of age was killed tragically on a footpath while riding a motorbike without wearing a safety helmet. We must recognise that some people are foolish and that some parents are utterly irresponsible. I believe that I have made that point before.

Last summer I saw 11 young people on an area of open ground not far from my home, all of them on motorbikes but not one wearing a helmet. I believe that the incidence of unhelmeted young motorcyclists has fallen since then because the press carried quite a lot of comment from people, including myself. However, the fact remains that stiles can save lives while gates may provide opportunity for suicide.

I give one other example. A few years ago on two very attractive footpaths near my home my local authority erected two splendid gates. One was smashed, presumably by a local car thief, who used the opportunity to dump the cars he had stolen in the space provided by the removed gate. The other handsome gate was removed in the dead of night, presumably by someone who was able to lift it off its hinges and carry it away by lorry. That left the footpath open for use by any four-wheeled vehicle.

I believe that we must be careful. I accept the need to promote opportunities for disabled people, but stiles can be and are designed to provide for that need. The replacement of a good, solidly-built stile by a gate can do a great deal of harm. I hope that my noble friend will look at that matter particularly carefully, even if he has sympathy with the other splendid proposals put forward by the noble Lord.

Baroness O'Cathain

I believe that the noble Lord has put the case for stiles versus gates very clearly from a particular point of view. However, it was not the fact that they were gates rather than stiles that caused those problems; it was man's stupidity. Therefore, I believe that one must also balance the fact that many disabled people find it difficult to get off country paths. If they have electric wheelchairs they can go through gates, whereas there is no possibility of them getting over stiles. I know—again, from anecdotal evidence—several people who are very close to me who have no prospect of getting someone who is so disabled that they cannot get out of a wheelchair into the country and along paths where there are stiles.

7 p.m.

Lord Whitty

Clearly, this is another matter where there is potential conflict between two desirable objectives. It rather underlines the case that those issues should be dealt with in guidance rather than on the face of the Bill.

We want to provide greater access for disabled people, as the noble Baroness and the noble Lord, Lord Addington, have said. But, on the other hand, there is a down-side to that in certain other situations. So we need to ensure that in drawing up their improvement plans the local authorities have regard to the needs of disabled people, which will include some of those issues. But they must have regard also to certain other aspects, including those referred to by my noble friend Lord Hardy, in the sense that we do not want to create rights of way which encourage vehicular traffic to act illegally and so on.

That will be quite a delicate job for the local authorities. It is not possible to put all those matters in detail on the face of the Bill. However, I assure the noble Lord, Lord Northbourne, who is no longer in his place, that the issue of circular walks, for example, will clearly be covered in guidance, as will the issues raised by the amendment tabled by the noble Lord, Lord Addington.

Baroness Miller of Chilthorne Domer

The Minister is placing the responsibility back on the access authorities to solve those conflicts and to create the improvements which the Government are seeking. Between now and the next stage of the Bill, is he able to write to us with a list of the areas in which the legislation prevents multiple use taking place and why that should be so?

Local authorities may wish to create the sort of multiple use of which we have heard where local residents want it. But it would be very useful for the next stage of the Bill to have a clear list of the areas in which legislation is preventing that happening.

Lord Whitty

I will do what I can. The noble Baroness asked for a "clear" list. Much of it does not instantly jump out of the page at you. There are complexities with the various pieces of legislation. However, we shall do what we can.

Lord Addington

I was trying to be helpful but this debate has merely demonstrated that the road to hell is definitely paved with good intentions.

This debate goes much further every time one thinks about it. In begging leave to withdraw the amendment, I must tell the Committee that I have every intention of bringing back amendments on Report which have been inspired by this debate. But meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 417: Page 35, line 30, leave out subsection (7).

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 [Rights of way improvement plans: supplemental]:

Baroness Byford moved Amendment No. 417ZA: Page 35, line 39, at end insert— ("( ) any conservation board for an area of outstanding natural beauty any part of which is within their area;").

The noble Baroness said: While the amendment of the noble Lord, Lord Northbourne, was very wide, this amendment is very short. The amendment provides for a highway authority to consult AONB conservation boards on its rights of way improvement plan, as it has a duty to do in relation to other bodies.

This is a necessary amendment to ensure full consultation in the light of the new provisions in this Bill regarding areas of outstanding natural beauty. I beg to move.

Baroness Miller of Chilthorne Domer

This will be a concern that I shall raise throughout the debate on AONBs. I am certainly in favour of the consultation but I am nervous that we shall create a two-tier AONB system because the AONBs which do not opt for conservation boards may become left out of the process. I merely put that down as a marker at this stage.

Lord McIntosh of Haringey

I do not think that they need be. I am sure that other ways can be found. My answer to the amendment is to say that Clause 57(1)(f) states that the highway authority shall consult, such persons as the Secretary of State … may by regulations prescribe", and subsection (6) prescribes the way in which the regulations are to be made.

We would certainly expect AONB conservation boards to be consulted on the plans, using the powers provided by Clause 57. I am willing to give an undertaking that we shall include AONB conservation boards in the regulations prepared by the Secretary of State, subject, of course, to your Lordships and the other place agreeing that they should be established.

Baroness Byford

I am extremely grateful for that response. I accept that there are many groups which look after those special areas which are not full conservation boards. It may be that my amendment was incorrect in that respect. I am happy for the Minister to take it away and think about it. I am extremely grateful for the indication that such consultation will be included in the regulations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 417A: Page 35, line 43, at end insert— ("( ) the Environment Agency; ( ) in England, English Nature;").

The noble Baroness said: Clause 57(1) sets out the bodies which local authorities are required to consult in preparing rights of way improvement plans. There is no reference to consultation with the Environment Agency. The agency has duties in relation to recreation and also in relation to fisheries, navigation, flood and coastal defence and pollution control. Those are all relevant matters in relation to the rights of way network.

Accordingly, the Environment Agency should be consulted on improvement plans. This amendment would provide for that. There is a reference in Clause 57(1)(e) to consulting the Countryside Agency in England and the Countryside Council for Wales. However, there is no reference to the need for local authorities in England to consult English Nature which fulfils the same role in relation to wildlife as the Countryside Council for Wales in Wales. The amendment will correct that omission.

It is relevant to note that the draft guidance produced on the rights of way improvement plans by the Countryside Agency failed to make any reference to the need for the Countryside Agency or English Nature to be consulted. That suggests that the Countryside Agency has failed to appreciate the importance of involving both bodies in consultation. If so, those are serious omissions, particularly in relation to English Nature in view of the provision to enable the diverting of rights of way for the protection of SSSIs under new Section 119D of the 1980 Act introduced by Schedule 6, and the provisions relating to the making of traffic regulation orders for the purposes of conserving natural beauty in Clause 62. I am looking for reassurance from the Government. I beg to move.

Lord McIntosh of Haringey

I realise that I did not make the case fully in response to the previous amendment as to what should be on the face of the Bill and what is not on the face of the Bill. I made the point that those bodies which are not on the face of the Bill can be consulted and I gave an undertaking in relation to AONB conservation boards.

The Bill provides a power for the Secretary of State or the National Assembly for Wales to make regulations prescribing bodies to be consulted. The list of consultees on the face of the Bill is mainly concerned with those who have or are likely to have some rights of way functions themselves. That is why they are on the face of the Bill rather than in the catch-all. That is why the Countryside Agency and the Countryside Council for Wales are included.

The regulation-making power is for all other bodies which, although they may have no direct rights of way functions, may, nevertheless, have an interest in how those functions are discharged. That includes such bodies as English Nature and the Environment Agency, which are the subject of the amendment. They are better left to the regulations. Otherwise, we shall be compiling a long list of additions to the Bill, which would get worse as we went through Report and Third Reading.

Baroness Carnegy of Lour

Is the noble Lord giving an undertaking that the Government will include the Environment Agency and English Nature in the regulations, as he gave an undertaking on the last amendment? He has not said so.

Lord McIntosh of Haringey

No, I did not say that. But I think I can give that undertaking, off my own bat.

Baroness Byford

I note that the noble Baroness, Lady Young of Old Scone, is smiling. I was not looking for a long list. It seemed to me to be a slight omission that the two main agencies are not on the list. However, if the Minister is committing the Government to putting them on it, I shall be happy to withdraw the amendment.

I understand why the Minister wishes to include many of the other bodies in regulations. However, it seems strange that the two main bodies, which have a great input in this matter, are not on the face of the Bill.

Baroness Young of Old Scone

Perhaps I may make one point of clarification. I must declare my interest as chairman of English Nature. I confess that my smile was a wry smile rather than a smile of welcome. English Nature has the capacity to be consulted as of right if a right of way improvement plan will impact on an SSSI. That is our primary consideration. Other provisions of the Bill make that a requirement. Being named in the regulations or guidance is to some extent a mixed blessing. It means that we shall be consulted on all rights of way improvement plans. We are slightly worried about the weight of paper which might head in our direction under that provision. However, we shall relax under that requirement if that is one to which the Minister wishes to make a commitment.

Baroness Carnegy of Lour

The noble Baroness has helped the Committee and the Minister. However, perhaps I may suggest that she will have to watch her Addison's rules.

Lord McIntosh of Haringey

I am sure that those who have been asking for this commitment will read it in the light of the comments made by the noble Baroness, Lady Young.

Baroness Byford

I shall not delay the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 417B: Page 36, line 22, after ("area,") insert— ("( ) any conservation board for an area of outstanding natural beauty any part of which is within their area,").

The noble Baroness said: Amendment No. 417B is linked to my earlier amendment. It allows a local highway authority to prepare its rights of way implementation plans jointly with any conservation board of the areas of outstanding national beauty. Perhaps I should not include "conservation board" but say that I am referring to areas of outstanding natural beauty. I beg to move.

Lord McIntosh of Haringey

These amendments would allow a local highway authority to make arrangements with any relevant conservation board to discharge jointly their functions under Clauses 56 and 57; in other words, to prepare a joint rights of way improvement plan. As we shall see when we come to debate the amendments providing for the creation of AONB conservation boards, it will become clear that we intend that an individual AONB's establishment order will transfer to it particular relevant local authority functions or provide for functions to be discharged jointly.

Perhaps I may suggest that the amendments are not necessary. This is rather awkward, as we have not yet debated AONBs. We do not yet know what the establishment orders for individual AONBs will be. We shall have plenty of opportunity to debate this issue in the right place.

Baroness Byford

I slightly smile at the Minister's last comment. I accept that this is awkward. However, the whole section regarding AONBs was added to the Bill after it had passed through the other place. I believe the Committee will realise why this is difficult. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 417C not moved.]

7.15 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 418: Page 36, line 33, after ("section") insert— (""local highway authority" has the same meaning as in the 1980 Act;").

On Question, amendment agreed to.

Clause 57, as amended, agreed to.

[Amendment No. 419 not moved.]

Clause 58 agreed to.

Clause 59 [Enforcement of duty to prevent obstruction]:

The Deputy Chairman of Committees (Viscount Allenby of Megiddo)

Before calling Amendment No. 420, I must inform the Committee that if this amendment were to be agreed, I could not call Amendments Nos. 421 to 428.

[Amendment No. 420 not moved.]

Lord McIntosh of Haringey moved Amendment No. 421: Page 37, leave out lines 26 to 31 and insert— ("(a) it is or forms part of—

1. (i) a building (whether temporary or permanent) or works for the construction of a building, or
398
2. (ii) any other structure (including a tent, caravan, vehicle or other temporary or movable structure) which is designed, adapted or used for human habitation,").

The noble Lord said: In moving Amendment No. 421, I shall speak also to Amendments Nos. 422 to 430, 432, 434 and 438 to 440.

These amendments all relate to the provisions in Clause 59 for dealing with obstructions. Certain obstructions are excluded from Clause 59 because we believe that local highway authorities should retain discretion as to how and when to take action to get them removed. Among the exclusions are buildings or any other structures, including vehicles, which it appears may be used as a dwelling. Amendment No. 421 clarifies the definition of buildings to include parts of buildings and those which are under construction. The amendments also remove a potential loophole. For example, it is arguable that an empty vehicle which is not designed to be used as a dwelling but which has been placed across a right of way to prevent the public from using the way at present would be exempt from Clause 59. That is because it is conceivable that someone could live in the vehicle.

Amendment No. 421, together with Amendment No. 434, would prevent such obstructions from being excluded from the new provisions, provided they are not being lived in at the time when a complaint is first made to the highway authority.

The remaining government amendments in this group reorder parts of Clause 59 adding two new sections: 130C and 130D. The process in Clause 59 is that a member of the public may serve a notice on a local highway authority when a right of way is obstructed. If the obstruction has not been removed after a certain period of time, the complainant may seek an order from the magistrates' court requiring the authority to take action to ensure that the obstruction is removed. The highway authority is required to inform anyone who it thinks may be responsible for an obstruction that a complaint has been made. However, as the Bill is currently drafted, those persons, as third parties, do not have a right to be heard if the case goes to court.

Amendments Nos. 422 to 430, 432 and 438 to 440 would do three things. They would give a person who is responsible for the obstruction and the owner of the obstruction, if that is someone else, a right to give evidence in the court on those matters on which it must be satisfied before it can make an order. These are set out in the Bill at present. The aim is to ensure that the court is provided with as much relevant information as possible when deciding whether to make an order. Secondly, the amendments would give the person responsible for the obstruction a right to appeal to the Crown Court against the decision of the magistrates' court. The complainant and the highway authority already have such a right under the Bill. Thirdly, the amendments introduce a number of procedural changes: for example, to ensure that persons with a right to be heard are informed of the court hearing and are allowed time for any of the parties to appeal to the Crown Court before an order made by the magistrates' court can take effect. I beg to move.

Baroness Byford

I rise to support Amendment No. 421, which makes good sense. I thank the Minister for tabling it. Perhaps I might ask one question of clarification. Does the amendment include any request, regardless of how small or whether it is reasonable? Having looked at the Bill I am not sure where the amendment kicks in. I would be grateful for clarification.

Lord McIntosh of Haringey

Amendment No. 422 does not refer to a request. Amendment No. 422 states: A person serving a notice … must include in the notice the name and address, if known to him, of any person … responsible for the obstruction".

Baroness Byford

I apologise to the Committee. I was not clear whether anybody could raise, at any stage, any objection to anything that was obstructing the highway, whether the objection was reasonable or not. If I have that in the wrong place, I apologise to the Committee.

Lord McIntosh of Haringey

Members of the public, which is anybody, can object to obstructions across rights of way.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 422 to 430: Page 37, line 35, at end insert— ("(4A) A person serving a notice under subsection (1) above must include in the notice the name and address, if known to him, of any person who it appears to him may be for the time being responsible for the obstruction."). Page 37, line 37, leave out ("by any person"). Page 37, leave out lines 39 to 41. Page 37, line 42, at beginning insert ("on every person whose name and address is, pursuant to subsection (4A) above, included in the notice and,"). Page 37, line 42, after ("every") insert ("other"). Page 37, line 46, leave out ("it") and insert ("the obstruction"). Page 37, line 47, at end insert (", and (c) on the person who served the notice under subsection (1) above, a notice containing the name and address of each person on whom notice is served under paragraph (b) above and stating what, if any, action the authority propose to take in relation to the obstruction."). Page 38, line 1, leave out from ("of") to ("may") in line 3 and insert ("this section the persons for the time being responsible for an obstruction include the owner and any other person who for the time being—

1. (a) has possession or control of it, or
2. (b)")

Page 38, leave out lines 22 to 31 and insert ("apply to a magistrates' court in accordance with section 130C below for an order under this section.").

On Question, amendments agreed to.

[Amendment No. 431 not moved.]

Lord McIntosh of Haringey moved Amendment No. 432: Page 38, line 35, at end insert— ("( ) An order under this section shall not take effect—

1. (a) until the end of the period of twenty-one days from the day on which the order is made; or
2. (b) if an appeal is brought in respect of the order within that period (whether by way of appeal to the Crown Court or by way of case stated for the opinion of the High Court), until the final determination or withdrawal of the appeal.").

On Question, amendment agreed to.

Lord Luke moved Amendment No. 433: Page 38, line 36, leave out ("subsection (5)") and insert ("subsections (5) and (5A)").

The noble Lord said: In moving Amendment No. 433, I shall speak also to Amendment No. 437. These are consequential amendments.

Clause 59 provides important new powers to tackle obstructions on rights of way. However, there is a risk that the clause could give rise to contention and undermine attempts to secure a complete and accurate definitive map. That is because the clause provides that the new powers can be exercised in relation to "any" public footpath or bridleway, whether or not such ways are shown on the definitive map. Thus someone could seek to secure the removal of an obstruction over a path whose status was disputed without also needing to clarify the path's status by seeking a definitive map modification order. Clause 59 would seem to provide a way of asserting rights by the back door.

If an authority acted on an application in relation to a way not shown on the definitive map, it would be accepting that the path sustained public rights which may well be disputed by the owner or other local people. If the authority did not subsequently make a definitive map modification order to add the path to the definitive map, contention over the status of the path could continue indefinitely.

An approach consistent with better regulation would be to clarify the status of paths before taking action to remove obstructions from them. The amendments would tackle the problem by giving the owner or occupier, in addition to the highways authority, a right to appear in the magistrates' court to dispute the grant of an order requiring an obstruction to be removed where the owner or occupier had evidence that called into serious question whether the route obstructed was indeed a public right of way. I beg to move.

Lord Bridges

I should like to raise a related point on this clause. Blockages to rights of way are not only caused by obstruction. For example, they may be caused by the removal of a plank across a dyke which makes it impossible to use that right of way. Some further addition is therefore needed to the clause in order to cover that difficulty. Perhaps the Minister will be able to give us an assurance on that point.

Lord McIntosh of Haringey

Amendment No. 437 is the substantive amendment in this group. It would widen the effect of the government amendments to which I have just spoken which relate to the right of third parties to appear before a court. A court may not make an order if it is satisfied by the local highways authority that, among other things, there is no serious dispute as to the existence of a highway of the kind to which Clause 59 applies. The government amendments provide that a person who is responsible for an obstruction would also have a right to be heard on the matter by the court and prevent an order from being made if he can satisfy the court on the existence of a highway.

The term "person responsible", as amended by the government amendments, would cover the owner of the obstruction as well as any other person who has possession or control of it or who might be required to remove it. For practical purposes that is often likely to cover a landowner. For example, the provisions under Section 54 of the Highways Act 1980 relating to overhanging vegetation allow for a notice to be served on the owner of the vegetation concerned or the occupier of the land where it is grown.

An obstruction of the highway has been defined as, something which permanently or temporarily removes the whole or part of a highway from public use altogether", as per Lord Evershed in Trevett v Lee 1955. A few examples of obstructions include a bull in a field, the construction of a house over a footpath, the display of goods by shopkeepers, meetings, processions and picketing, parked cars and overgrown vegetation. I do not want to make the law on my feet but it seems to me that, permanently or temporarily removes the whole or part of a highway from public use", would include a plank over a stream or a dyke. If I am wrong about that I shall write to the noble Lord and put a copy in the Library so that I am not accused of making law on my feet.

The principal reason why the Government introduced amendments giving such people a right to be heard by the court is that the obstruction could be their private property. For example, if the obstruction was a lawful one but that had not been drawn to the attention of the court, then a person could have his property removed without good reason.

The Government do not believe that it is necessary or desirable to widen the provisions further in this respect. At the end of the day, an order made by a magistrates' court could not have the effect of creating a highway where one does not exist. It is not at all clear why landowners should have a specific right to be heard in this instance. There never has been any suggestion that landowners should have a right to appear in every set of proceedings in which there is a question of whether or not a highway exists—for example, under Section 137 of the 1980 Act.

We believe that Clause 59, with the addition of the government amendments, is sufficiently well balanced to provide a workable means of encouraging local highway authorities to take action to prevent, as far as possible, the rights of way in their areas from being obstructed.

I am sorry that there are such extensive amendments to Clause 59. But we supplied to the Opposition Front Benches a copy of the Bill as amended by the government amendments, which I hope makes it clear what they mean. On that basis, I hope that the noble Lord, Lord Luke, will not press his amendment.

Lord Luke

I am grateful to the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 434: Page 38, line 39, at end insert ("or, in a case falling within subsection (4)(a)(ii) of that section, is one to which that section would apply but for the obstruction having become used for human habitation since service of the notice relating to it under subsection (1) of that section,").

On Question, amendment agreed to.

Baroness Scott of Needham Market moved Amendment No. 435: Page 38, line 47, at end insert ("(an entry in the definitive map and statement of a way specified in subsection (2)(b) of that section being conclusive as to its status for the purposes of this section)").

The noble Baroness said: Amendment No. 435 relates to the question of the courts making an order to clear an obstruction under Clause 59 of this Bill.

This amendment is in part designed to test the Government's thinking on an issue which over the past few days the Committee has highlighted in a number of different respects; that is, the extent to which the definitive map can truly be regarded as "definitive" and its conclusiveness in relation to landowners and members of the public. The amendment also seeks to ensure that no one can use a challenge to the definitive map as a justification for obstruction.

I can understand how the situation may arise when someone feels justified in obstructing a route which is not on the definitive map and that a court might subsequently use the "seriously disputed" provision as a reason to defer taking action on the obstruction. But the position should be quite different where the obstructed route is on the definitive map. It will have arrived there after a lengthy process, which often costs a good deal of public and private money. For someone to obstruct that route and justify it by saying that they dispute the status of the route is quite wrong.

It has become evident over the past few days that we should be seeking to find ways to strengthen the integrity of the definitive map; it is at the heart of a number of issues including, for example, the Grimsell Lane case. When we dealt with Part I of the Bill, Members of the Committee on all sides of the Chamber made great play of the fact that there should be clarity in the signing and mapping of new access areas. But that concern should apply to public rights of way.

The defence of a right of way being "seriously disputed" is to be resisted for the reason I have already given but also because it is a curiously subjective term to be found on the face of a Bill. How is "serious" to be defined and by whom? I hope that between now and Report stage the Government will give thought to ways in which the definitive map can be strengthened and preserved. I beg to move.

7.30 p.m.

Lord McIntosh of Haringey

I fully support the motives behind the amendment. It relates to the provisions in Clause 59 that the courts should not make an order if there is a serious dispute as to whether a way is a highway of the kind to which Clause 59 applies. However, I hope that I can persuade the noble Baroness, Lady Scott, that the amendment is unnecessary.

Where a highway is shown in a definitive map as a restricted byway or a byway open to all traffic, that is conclusive evidence that the way in question is a highway. It is a straightforward question of fact whether a way is shown as a restricted byway or as a byway open to all traffic. In such circumstances, there could be little prospect of a serious dispute—serious as opposed to frivolous, trivial or vexatious—over whether a way fell within subsection (2)(b) and so it seems that Amendment No. 435 is unnecessary.

Baroness Scott of Needham Market

I thank the noble Lord for that reply. I am a little disappointed that at this stage the Government are not prepared to say more about the definitive map and how it might be strengthened. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 436 and 437 not moved.]

Baroness Farrington of Ribbleton moved Amendments Nos. 438 to 440: Page 39, leave out lines 9 to 16. Page 39, line 16, at end insert— ("(6A) A highway authority against whom an order is made under this section shall, as soon as practicable after the making of the order, cause notice of the order and of the right to appeal against it to be displayed in such manner and at such places on the highway concerned as may be prescribed by regulations made by the Secretary of State, and the notice shall be in such form and contain such information as may be so prescribed."). Page 39, line 18, at end insert—

("Section 130B: procedure.

130C.—(1) A person proposing to make an application under section 130B above shall before making the application serve notice of his intention to do so on the highway authority concerned. (2) A notice under subsection (1) above shall be in such form and contain such information as may be prescribed by regulations made by the Secretary of State. (3) The notice may not be served before the end of two months beginning with the date of service on the highway authority of the notice under section 130A(1) above ("the request notice"). (4) An application in respect of which notice has been served under subsection (1) above may be made at any time—

1. (a) after the end of five days beginning with the date of service of that notice, and
2. (b) before the end of six months beginning with the date of service on the highway authority of the request notice.

(5) On making the application the applicant must give notice to the court of the names and addresses of which notice was given to the applicant under section 130A(5)(c) above. (6) On the hearing of the application any person who is, within the meaning of section 130A above, a person for the time being responsible for the obstruction to which the application relates has a right to be heard as respects the matters mentioned in section 130B(4) above. (7) Notice of the hearing, of the right to be heard under subsection (6) above and of the right to appeal against a decision on the application shall be given by the court to each person whose name and address is notified to the court under subsection (5) above.

Section 130B: costs.

130D. Where an application under section 130B above is dismissed by virtue of paragraph (a), (b) or (c) of subsection (5) of that section, the court, in determining whether and if so how to exercise its power under section 64(1) of the Magistrates' Courts Act 1980 (costs), shall have particular regard to any failure by the highway authority to give the applicant appropriate notice of, and information about, the grounds relied on by the authority under that paragraph." (2) In section 317 of the 1980 Act (appeals to the Crown Court from decisions of magistrates' courts) after subsection (2) there is inserted— "(3) Any person who, in relation to the decision of a magistrates' court on an application under section 130B above, does not fall within subsection (1) above but—

1. (a) is, within the meaning of section 130A above, a person for the time being responsible for the obstruction to which the application related, or
2. (b) when the application was heard, was such a person and was, or claimed to be, heard on the application,

may appeal to the Crown Court against the decision on any ground relating to the matters mentioned in section 130B(4) above."").

On Question, amendments agreed to.

Clause 59, as amended, agreed to.

Clause 60 [Power to order offender to remove obstruction]:

[Amendment No. 441 not moved.]

Clause 60 agreed to.

Clause 61 agreed to.

[Amendment No. 441A not moved.]

Baroness Farrington of Ribbleton

I beg to move that the House do now resume. I suggest that the Committee stage should begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.