Sitting of 9 October 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Mr Salman Rushdie
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
What has been the cost to the taxpayer of the provision of personal protection to Mr Salman Rushdie.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, it has long been the practice not to disclose the actual costs of protecting a particular individual. If those costs were revealed, it would be possible to estimate the scale of protection. That would prejudice the security of the individual concerned.
Lord Ahmed: My Lords, I thank my noble friend the Minister for his reply. Now that Mr Rushdie is living in Manhattan, how long will we continue to provide his personal protection in New York? Is the Minister aware that Mr Rushdie charges 1 million dollars in advance for his publications, and that he has recently signed a contract with Random House for five books? Will he be paying tax to the British Government or the American Government?
Lord Bassam of Brighton: My Lords, it would be invidious for any Minister to discuss the tax affairs of any UK national. The level of protection which will be provided to Mr Rushdie during his time in America is entirely a matter for the American authorities. Perhaps
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I should add that there is a close working liaison and relationship between the United Kingdom and United States on law enforcement. However, Mr Rushdie's treatment and level of protection in America are a matter for the American authorities.
Lord Palmer: My Lords, can the Minister tell the House what percentage of the costs for Mr Rushdie's personal protection will eventually be recouped by Her Majesty's Government?
Lord Bassam of Brighton: My Lords, again that is a question which I am unable to answer.
Lord Avebury: My Lords, can the Minister confirm that a bounty of 2.4 million dollars on the head of Mr Rushdie by the Iranian 15 Khordad Foundation exists and has not been withdrawn as a result of the conversations between Mr Cook and the Iranian Minister of Foreign Affairs, Mr Kharrazi? Can the Minister tell the House whether his right honourable friend Mr Cook has any plans to raise that matter with the Iranian authorities when he visits Tehran?
Lord Bassam of Brighton: My Lords, I am not aware of discussions of that nature.
Lord Bragg: My Lords, is the Minister aware that Mr Salman Rushdie is domiciled in London? He is a British subject and the British Government pay nothing towards his protection in New York. Is he further aware that many people in Britain are proud of the effective protection given to Salman Rushdie, as they would be of similar protection given to any British subject?
Lord Bassam of Brighton: My Lords, I agree with all three points made by the noble Lord.
Viscount Waverley: My Lords, can the Minister tell the House the last time that a real threat was made against Mr Rushdie?
Lord Bassam of Brighton: My Lords, that is an operational matter which has to be left in the knowledge and safe hands of the Commissioner of the Metropolitan Police.
Baroness Whitaker: My Lords, can the Minister confirm that when Mr Rushdie was last resident in this country he paid a high proportion of his protection costs out of his own pocket?
Lord Bassam of Brighton: My Lords, again, that is not information which I am at liberty to disclose.

Peace Promotion
2.39 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they have adopted or will adopt one or more of the Ten Ways to a Culture of Peace recommended by Labour Action for Peace.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, the Government have fully exploited the benefits of the peace dividend. They have shown their commitment to responsible arms export licensing. The United Kingdom has led the way in nuclear disarmament, both nationally and internationally. The UK supports the UN Secretary-General's "culture of prevention". The UN remains a key organisation in promoting peace. There is no conflict between our commitments to the UN and NATO, which underpin our defence and security.
Lord Jenkins of Putney: My Lords, I thank my noble friend for that answer. However, perhaps I may suggest that a pamphlet I have provides the means whereby the aims and ambitions of the Government as regards peace may be put into effect. The 10 contributors include Kofi Annan, Cilla Elworthy and many other writers of distinction. I shall arrange for copies to be placed in the Library in the next day or two. Members will then be able to decide for themselves whether the pamphlet contains important suggestions for ways in which the Government may put into effect their aims.
Baroness Scotland of Asthal: My Lords, I am grateful to my noble friend for bringing the pamphlet to the attention of the House and for his kindness in suggesting that it will be made generally available. I reassure my noble friend that the Government's commitment to nuclear disarmament remains. As a result of the recent non-proliferation treaty review conference, those aims are being progressed with greater energy.
Baroness Williams of Crosby: My Lords, can the Minister update the House on the study of more appropriate sanctions? She will recall that over recent months from time to time on these Benches we have
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raised the question of sanctions being targeted more clearly at political élites. We have asked whether that would be more appropriate than the generalised sanctions against Iraq or, until recently, the former Republic of Yugoslavia.
Baroness Scotland of Asthal: My Lords, the noble Baroness will be aware that we have tried to target sanctions to hit those who will be most affected. I refer to the people responsible, as opposed to the ordinary people. It is our view that that is the better way forward. From the way in which we are progressing on those issues, I hope that the noble Baroness will see that "smart sanctions" are the ones which find greater favour within the international community.

Euro Intervention
2.42 p.m.
Lord Blackwell Lord Blackwell asked Her Majesty's Government:
What is the value of euro reserves purchased by the Bank of England from both sale of gold reserves and other market intervention since the euro was launched, and what is the loss in sterling value of those reserves at current exchange rates.
Lord McIntosh of Haringey: My Lords, the information sought is contained in the press releases issued by the Bank of England for each auction and is available on its website. The 1.8 billion dollar proceeds from the gold auctions held to date have been reinvested in interest-bearing foreign currency assets broadly in the proportion 40 per cent dollars, 40 per cent euros and 20 per cent yen. The only intervention undertaken since the euro was launched was on 22nd September 2000 when 85 million euros was purchased against sterling. To provide a short-term snapshot of the value of those medium-term portfolio decisions would not be meaningful.
Lord Blackwell: My Lords, I thank the Minister for that informative reply. In the light of the Government's recent intervention to support the euro and press speculation over the weekend that the Government may intervene again, does the Minister stand by what he said in this House on 28th March this year when he assured us that the Government had no policy to intervene to create an artificial change in the euro-pound exchange rate? At that time he went on to explain,
"Attempts to intervene are unlikely to have the desired effect in most cases … and could create uncertainty and instability in the market".—[01ficial Report, 28/3/00; col. 729.]
Is that still the position of the Minister and of the Government as a whole?
Lord McIntosh of Haringey: My Lords, what I said on 28th March was not intended to last for the whole millennium. The noble Lord knows that perfectly well. Circumstances change and we change with them; if we did not we would be very foolish. That was a decision of the Group of Seven. The role of the

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United Kingdom is well known and I made that clear because we have a policy of transparency. However, I have seen press reports which described us as being only a "token player" in that intervention.
Lord Lea of Crondall: My Lords, would it not have been remarkable if an exercise involving the Bank of Japan, the Federal Reserve Bank and others had not involved the Bank of England? Secondly, can my noble friend comment further on the press reports and confirm that this exercise made a profit?
Lord McIntosh of Haringey: My Lords, I do not believe I should comment on that press report any more than I commented on the report referred to by the noble Lord, Lord Blackwell. However, I did see it and was interested to read what it said. We are members of G7 and have certain common interests and obligations.
Lord Watson of Richmond: My Lords, does the Minister agree that the intervention—
Lord Campbell of Alloway: My Lords, is it apparent to the Minister—
Noble Lords: Order!
Lord Watson of Richmond: My Lords, does the Minister confirm that the intervention was in the national interest, our national interest being that the euro should be strong and stable and the pound less expensive against it? Does the Minister agree also that some of the interventions on the future of the currency by members of the Conservative Party enjoy the same sort of clarity as their views on the future of cannabis?
Lord McIntosh of Haringey: My Lords, I hope that they do not change quite as rapidly; no I take that back. Some of the views expressed by members of the Conservative Front Bench I hope they change even more rapidly. Of course, the noble Lord, Lord Watson of Richmond, is right. It is in our interests to have a strong euro. The Chancellor has made that clear on more than one occasion.
Lord Campbell of Alloway: My Lords, I apologise for not giving way to the noble Lord, Lord Watson; I did not see him. But is this really a question of Liberal or Conservative policy? Is it not a question of why this Government should support the euro when they do not know whether or not the people of this country want to have it?
Lord McIntosh of Haringey: My Lords, I am not sure that the noble Lord, Lord Campbell, is making a proper connection between the view that we take about the exchange rate between the euro and the pound—we believe that the pound is over-valued in
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that regard—and the quite separate question of whether or not we should join the euro, on which our policy has not changed.
Lord Mackay of Ardbrecknish: My Lords, does not the current value of the euro justify the Minister's statement in the debate on 28th March that it is, if I may paraphrase, pretty futile to intervene in foreign exchanges? The intervention does not seem, in the long term, to have done much good to the euro. Also, are the press reports right that the Chancellor sold those holdings quite quickly, perhaps at a modest profit? If so, does that show that he has long-term confidence in the euro?
Lord McIntosh of Haringey: My Lords, as I made clear in my first Answer, it does not make good sense to provide a short-term snapshot of the value of these medium-term portfolio decisions. I do not comment on press reports on the profit. I made that clear in answer to an earlier question. And it does not seem to me that now is the time to draw final conclusions in relation to what are, in the end, medium-term portfolio decisions.
I did not say this in response to an earlier question but perhaps I should have done. I read the reports that some governments are thinking of taking advantage of public holidays in order to make further intervention. But I could not possibly comment on that.

Organic Food
2.48 p.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
What assessment they have made of the recent statement by the Food Standards Agency about organically grown food.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the Food Standards Agency, which is a non-ministerial government department, has a duty to promote consumer choice by providing independent, objective and impartial advice and information. The statement which the agency published recently on its website meets that obligation with regard to organic food.
Lord Dubs: My Lords, will my noble friend confirm that it remains the Government's policy to support the production of organic food? Do they agree that the reduced use of pesticides and fertilisers is good for both human health and the environment? Also, do they accept that increased production of organic foods would lead to economies of scale and therefore to lower prices for consumers? When all is said and done, for many of us organic foods taste better.
Lord Hunt of Kings Heath: My Lords, I agree that by increasing consumer choice and producing environmental benefits, organic farming can make an important contribution. However, no preferential

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treatment is given to organic farming as there is no evidence that organic produce is safer or healthier than produce from non-organic farms. Government support for the organic sector takes account of evidence that the organic system of farming leads to certain environmental benefits.
Lord Elton: My Lords, is the Minister aware that earlier today Radio 4 broadcast a moving dramatisation of the moment when the noble Lord, Lord Dubs, surrendered his seat as a result of a parliamentary defeat? Does he agree that this House was fortunate and that it would be a good thing if many other members of his party were to come to this House by the same route?
Lord Hunt of Kings Heath: My Lords, I cannot perceive any circumstance in which that will happen but no doubt we are all grateful to my noble friend for giving us his wisdom over a number of years in your Lordships' House.
Noble Lords: Hear, hear!
Lord Rea: My Lords, to return to the Question on the Order Paper, does my noble friend agree that the FSA's position paper on organic food is well balanced and based on scientific evidence? Does he also agree that as such it is unlikely to please people at either end of the spectrum? At one end are the enthusiasts who believe that organic food not only tastes nicer—I agree with my noble friend that it does—but also that it is more nutritious, which some do not believe. At the other end are those who want to blacken the name of organic food—perhaps those in the agrichemical industry—and who say that it is responsible for infections because of its copious use of manure.
Lord Hunt of Kings Heath: My Lords, my noble friend puts it very well. As a result of examining research data and available information, the FSA believes that there is insufficient information to be able to say that organic foods are significantly different in terms of safety and nutritional content from those produced by conventional farming. An important role of the FSA is producing advice to consumers. Consumers can then take 'hat into account and chose as they will.
Baroness Carnegy of Lour: My Lords, the Government have given the FSA an enormous amount of power. We shall hear a great deal about it and it will affect our lives greatly. I believe that in his Answer the Minister referred to the FSA as a non-government department. I do not know whether that was a slip of the tongue, but if he did say that what is it a department of?
Lord Hunt of Kings Heath: My Lords, I believe that I was right in referring to the FSA as a non-ministerial government department. It has been agreed that because of the importance of ensuring that advice in
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this crucial area is as independent as possible the agency will be accountable to Parliament through health Ministers. Yes, it occupies an important role and I believe that the calibre of its board members is high. It plays a crucial role in ensuring food safety and that the public have the correct information.
Baroness Trumpington: My Lords, first, if the Minister is so keen on organically grown food, why are not the Government doing more to ensure that prices for it are lowered in supermarkets? Secondly, does he agree that if I popped an organically grown carrot into the mouth of the noble Lord, Lord Dubs, followed by an ordinary carrot he would not be able to tell the difference?
Lord Hunt of Kings Heath: My Lords, it is clear that noble Lords have differing views on how well—or not—organic food tastes. That is why it is a matter for individual consumer choice. The noble Baroness is right in saying that the costs of the production and handling of organic food can be higher and yields generally lower than in conventional agriculture. It is also right to say that the relatively low level of production means that economies of scale are not achieved. Those factors are reflected in the price of organic food. None the less, it is an important market in this country and I am sure that consumers will continue to enjoy it.
The Lord Bishop of Hereford: My Lords, granted that the Government give much support to organic farming—that is widely welcomed because many people are appreciative of organic food—can the Minister say what precise part the Government play in adjudicating on or defining what constitutes organic food? I believe that the Soil Association is the lead body in defining what is and is not allowed and that there is some variation of interpretation. How do the Government decide what qualifies as "organic"?
Lord Hunt of Kings Heath: My Lords, organic food production and labelling are regulated by European standards. Foods may be called "organic" only if they come from registered producers, processors or importers. European Community regulations describe the inputs and practices which may be used in organic farming and growing and the inspection system which must be put in place to ensure that. The UK Register of Organic Food Standards administers the regulations in the UK. Its job is to ensure that the regulations are properly applied by the various bodies which register organic farmers and processors, including organisations such as the Soil Association.
Baroness Young: My Lords, does the Minister agree that in such matters it is most important to take scientific advice and to listen with great care to what such a committee, under a most distinguished chairman, says rather than allowing many prejudices either way to run away with the case?
Lord Hunt of Kings Heath: My Lords, I could not agree more. An important role of the FSA is to look at

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all the robust evidence and information that are available and to provide advice to Ministers and, importantly, to the general public. It is worth referring to the report of your Lordships' Select Committee which considered organic farming and the EU, published in July last year. It emphasised that the organic label certifies that a product has been produced in a particular way but that it is no guarantee that it has certain desirable qualities. In other words, the report states that organic standards are based on the method of production and not on the characteristics of the finished product. That report is consistent with advice recently given by the FSA.
Baroness Miller of Chilthorne Domer: My Lords, does the Minister agree that the same report clearly highlighted the benefits to the countryside, which is one of the reasons why the Government continue to expand their grant aiding of the organic sector, and the substantial animal welfare benefits which result from the higher standards required by organic producers?
Lord Hunt of Kings Heath: My Lords, I do not disagree. We must draw a distinction between what one might describe as the environmental factors in relation to organic farming and the issues which are the responsibility of the FSA. The FSA is concerned with safety issues and it reported on those issues.
Baroness Byford: My Lords, as the Minister said that the information available is insufficient to distinguish between conventional and non-conventional food production, what research is being undertaken and has the amount of such research been increased? Secondly, given that standards vary within the UK and between different shops, there is no clarity in our rules and regulations, so will the Government tighten up the rules relating to the conversion from conventional to organic farming because standards abroad are also different from those set by them?
Lord Hunt of Kings Heath: My Lords, the FSA has a research programme and I understand that the budget for 2000–01 is £21 million. Within that we would expect the agency to prioritise and to ensure that where the need for research is identified, such research can be commissioned and effectively delivered. The agency can also undertake literature reviews and surveys of other research, which is what it has done in this case.
Lord Jopling: My Lords, does the Minister share the anxieties of a great many people that the description "organic" as applied to imported food is, to put it politely, highly questionable?
Lord Hunt of Kings Heath: My Lords, my understanding is that all organic food production within the European Union must comply with standards laid down by the regulations to which I referred in a previous response. Countries outside the European Union can apply to be on a list of those which are judged to have standards of organic food
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production equivalent to those in the EU. Six countries are currently on that list: Australia, Argentina, Switzerland, Israel, Hungary and the Czech Republic.

Fur Farming (Prohibition) Bill
3 p.m.
Lord Carter: My Lords, on behalf of my noble friend Lady Hayman, I beg to move the Motion standing in her name on the Order Paper.
Moved, That the order of commitment of 19th July be discharged and that the Bill be committed to a Grand Committee.—(Lord Carter.)
On Question, Motion agreed to.

Countryside and Rights of Way Bill
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I beg to mow' 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.]
Lord Glentoran Lord Glentoran moved Amendment No. 301:
After Clause 38, insert the following new clause—

Countryside and Rights of Way Bill

  ACCESS LAND MANAGEMENT STRATEGY
  (".—(1) Every access authority shall, within five years after the commencement of this section prepare and publish a plan, to be known as an access land management strategy, containing—

  (a) the authority's assessment of the adequacy of the provision made in relation to each of the matters specified in subsection (2) and of any need for changes in that provision,

  (b) a statement of the action they propose to take for the management of access land in their area, and for securing that any such land is managed without detriment to that land or any person interested in that land, and

  (c) such other material as the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) may direct.

  (2) The matters referred to in subsection (1)(a) are—

  (a) fire management,

  (b) byelaws,

  (c) access points,

  (d) warden services,

  (e) regimes for closures and restrictions,

  (f) the statutory map of access land,

  (g) signs, notices and other forms of information provided in relation to access land,

  (h) public transport services in relation to access land,

  (i) any other matters that may be specified in regulations.").

  The noble Lord said: Amendment No. 301 is concerned with management. There are many issues related to the right to access which are an integral component part of managing that right. Management is the key to providing access to the public which does not unduly impose on land management interests, diminish the enjoyment of access rights by the public or damage the environment, including the flora and fauna, of access land. For management of access to work effectively for all concerned it must be proactive, not reactive. It is on that basis that successful public access to the countryside can currently be found.
  Within the Bill numerous obligations are placed on local authorities, but there is no provision to encourage a proactive approach to ensure that the responsibilities are regularly reviewed to determine the success of their application. This amendment seeks to include a requirement that an authority must prepare a review of the Bill's provisions and the overall management of access in its specific area. Much like the obligation in Clause 56 in Part II for the production of rights of way improvement plans, an access land management strategy (ALMS) aims to make local authorities responsible for the operation of the right of access and to check that the access available meets the expectations of land managers, users and the environment.
  Access land management strategies are already carried out in national parks. National park authorities see the need for access to be managed effectively and use management plans as a tool to achieve that. All local authorities should also undertake management plans where they have access land in their locality. How else will access land be managed efficiently and effectively? ALMS would be a practical tool to parallel strategic planning and review work to be undertaken in relation to rights of way.
  At this Dispatch Box I have frequently pressed the Government on management issues when speaking to various amendments to this part of the Bill. I believe that the Government have a good understanding of that. This amendment seeks to ensure that we do not end up with an excellent Bill which has the right balance but no means to guarantee that the restrictions, privileges, access or various instruments contained in the legislation are carried out. I believe that this is a sensible amendment which, if accepted by the Government, will be a valuable fallback and confidence-building measure for all concerned with access to the countryside. I beg to move.
  Earl Peel: I attach a great deal of importance to the amendment. Our deliberations on the Bill so far have shown the real possibility of major practical difficulties in trying to implement the legislation. The number of amendments that we have already debated, and the occasions on which the Government must return to unresolved issues at Report stage, are testament to that fact. The mapping process will, at the very least, provide an interesting challenge to the access authorities. I believe that that would be much more straightforward if at Report stage the Government tabled an amendment similar to that
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  moved by my noble friend Lord Caithness which placed a duty on the Countryside Agency to define moorland, heath, down and all other access areas.
  My view, which I believe is shared by many other Members of the Committee, is that the access provisions are ill-considered and there remain a number of important unresolved issues. For example, will there be access points? What information will they provide? How will the general public inform themselves about the restrictions, by-laws and regulations in existence? Will the public, landowners and managers have confidence in the system? Who knows? All of those matters must be resolved when the provisions of the legislation are implemented. I should like to know just how effective the closure orders under Clauses 21 to 24 are likely to be in protecting the management interests of those who have the responsibility for looking after the land. Furthermore, under the Bill there is no duty on an access authority to employ wardens or produce by-laws. We have yet to discover how efficient and effective the closure orders will be.
  Some access authorities may wish to escape with the bare minimum of responsibilities through either a lack of funds or, frankly, commitment. Consequently, owners and users, like access authorities, may be dissatisfied with the practical workings of Part I. I believe that this amendment, which would place a duty on each access authority to publish an access land management strategy, makes complete sense and should be welcomed by all interested parties. There is no doubt that the provisions of Part I will have enormous implications for many people and the land in question. Under Part II there is a requirement on local authorities to prepare rights of way improvement plans. Therefore, it is quite logical that a parallel duty should be placed on access authorities under Part I.
  This Bill enters new territory and it is inevitable that there will be difficulties and teething problems. Opportunities for access authorities formally to get together and learn from their experience will be helpful. If my noble friend's amendment is accepted, it will provide a real opportunity for managers of land and those who exercise the new rights of access to express their views and determine whether the legislation works effectively. This amendment makes total sense and I sincerely hope that the Government will give it serious consideration.
  Lord Williamson of Horton: At least I have come back refreshed after a weekend in the countryside. I should like to support the amendment. It is common ground that we need good information, not only about the new opportunities that are being opened up for walkers, which I support, but also about the management of the new arrangements, bearing in mind the interests of owners, tenants and other interests.
  It is quite reasonable that within five years the access authorities should produce documents which set out conclusions on the adequacy of those arrangements. It is the spirit of the age that we continually have to

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  account for everything. I do not see why the access authorities should not account for the adequacy of the arrangements in operation in their area.
  Furthermore, it would be useful for the public to see those documents because they cover matters of considerable interest to the public, including, for example, public transport arrangements and other matters not referred to elsewhere in the Bill. I believe that it would be sensible to include this provision in the Bill.
  Lord Bridges: I have sympathy for and understanding of the purposes which lie behind the amendment. There is one matter which I should like clarified. That is the possibility of an undesirable overlap of responsibilities already exercised by the national parks and—under another part of the Bill—those relating to areas of outstanding natural beauty. I presume the intention is that the amendment refers to access land outside those two areas. It would be helpful if that could be clarified, possibly at a later stage, with a further amendment.
  Baroness Miller of Chilthorne Domer: I have some sympathy with the reasoning behind the amendment and with the point touched on by the Members of the Committee on the Conservative Benches that it is important that the public and landowners should know how the matter will be managed. However, I cannot support the amendment because I feel that it moves away from what local authorities have to do, which is produce community plans.
  The noble Lord, Lord Williamson, touched on a local transport plan which would have to be tied in. The community plan would encompass the national park plans and the AONB plans. It would show how the access authorities' plans accorded with those plans. I should be very unhappy to see us adding yet another plan to the 40 statutory plans local authorities already have to produce. It would mean officers spending all their time writing plans—as the amendment says, preparing and publishing plans—and actually not doing very much, often those same officers who are supposed to be out in the countryside.
  However, I would ask the Government to consider that the way an access authority's performance is measured in relation to the management of land—indeed in relation to Part II, to which we shall come—by the Audit Commission should be reviewed. I am happy for the Minister to respond at a later stage. At the moment the Audit Commission's performance indicators are very much geared to other statutory duties such as social services, education and so on. The matters covered in the Bill are new duties. These new duties will urgently need to be considered as areas equally worthy of being measured. Every authority is conscious of the fact that it needs to succeed in its performance indicator measurements. That area needs to be given sufficient weight by the Audit Commission. It would be more constructive than requiring authorities to produce yet another plan.
  Lord Jopling: I hope very much that the amendment will be accepted. It is very positive and helpful.
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  The only point I want to make is that if, as I hope, the Government are prepared to accept the amendment it may be possible to amend it at Report stage. The matters referred to in subsection (2), which follow from subsection (1)(a), miss out one particularly important point. That is with regard to the emergency services.
  I know that there is reference in subsection (2)(a) to fire management. However, in a clause like this it is very important that the information should include the position of the nearest telephone. Not everyone on access land will have a mobile telephone. In the event of someone having a mobile telephone, it is very important to provide the information with regard to the number for the emergency services.
  Presumably subsection (2)(a)—fire management—will include a telephone number for local fire services; for example, if someone is hurt. We discussed that last week when talking about the mountain rescue services. All these matters ought to be taken care of when producing and publishing a plan. Therefore, when people see a plan for a certain access area it should include at the first possible stage details with regard to all the emergency services so that people who read the plan before they go on the land will be able to take note of telephone numbers and the position of the nearest telephone. A good moment to start that kind of publicity would be at the time the plan is prepared and published.
  3.15 p.m.
  Lord McIntosh of Haringey: The new clause in the amendment would place a duty on access authorities to publish "access land management strategies", setting out how they intend to manage access on land in their area, with specific reference to a number of matters. I do not deny that access authorities will play an important role in the implementation of the new statutory right. They will have powers to make by-laws, to appoint wardens and to secure and maintain means of access. But they will not have statutory involvement in a number of other matters mentioned in the amendment, such as, for example, fire management, provisions for closures and restrictions and the mapping of access land. All of these are the responsibility of the relevant authorities—the Countryside Agency, the Countryside Council for Wales and the national parks authorities rather than the local access authorities. The noble Lord, Lord Bridges, made that point. We expect them to contribute to the consultation process, but that is not their responsibility.
  We share the view that access authorities will have a key role in helping to ensure that access is properly managed so that users know where they may exercise their right and what their rights actually are. That is why we have given them the various powers to make by-laws where they are made aware of particular activities which may cause problems; to appoint wardens over access land to ensure that users are aware of their rights and enforce the restrictions on the land

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  where necessary; and to assess whether there is adequate means of access to the land, and take action where necessary.
  Surely these powers are best exercised in response to individual situations and needs rather than through a statutory plan. For example, it may not be possible for an access authority to determine in advance where a means of access is likely to be needed. It will need to find out where the public are most likely to wish to go, the level of use and how they wish to get there. I suggest that that argument applies in particular to the point made by the noble Lord, Lord Jopling. I do not think that we would wish emergency telephones to be set up according to some bureaucratic statutory plan, rather than according to the way that we propose it in the Bill, which is, as necessary. One cannot determine these matters in advance. They need to be targeted according to what actually happens on the ground. The same applies to by-laws and to the appointment of wardens.
  We do not believe that it would be a good use of public money to require authorities to prepare access land management strategies. It is true, as the noble Earl, Lord Peel, said, that under Part II of the Bill local highway authorities are under a duty to provide rights of way improvement plans. That is because, unlike in Part I, local highway authorities have wider-ranging responsibilities in relation to rights of way. They are not shared with the countryside bodies in the same way as responsibilities under Part I.
  The noble Baroness, Lady Miller, made a telling point when she referred to the number of plans and strategies which local authorities are already required to draw up. My list has 37 statutory duties. The noble Baroness's list has 40. I should be glad to know what her extra three are. Examples are the best value regime, air quality management plans, waste recycling plans, community care plans, health improvement programmes, pipeline safety plans, and so on. I am not suggesting that these duties are unnecessary, but we should think carefully before imposing further duties on local authorities, particularly ones which do not offer value for money.
  We simply do not believe that it is necessary to place such a duty on access authorities. I agree that authorities will need to assess the access available in their area and ensure that they are making the best use of the powers in the Bill. But that is no more than we would expect of any local authority, all of which have a range of discretionary powers which they must exercise as they see appropriate. In this connection I respond to the point made by the noble Baroness, Lady Miller, about the remit of the Audit Commission and reviews carried out by the Audit Commission. We are looking positively at that point.
  We must bear in mind that the new right will be a limited one—primarily for walking. The activities which the Bill will enable will not have a significant impact on the countryside. It would not be appropriate for local authorities to have to draw up detailed plans and assessments of such a limited right. We have given the authorities powers to manage the new right and we
  16
  expect them to use those powers. We do not think that access land management strategies would be appropriate.
  Baroness O'Cathain: Of course we do not want to overload authorities. We are already producing far too many plans and strategies. But I believe that there is a case for accepting the amendment. Furthermore, I believe that subsection (2) should include the ambulance service, as my noble friend Lord Jopling suggested. If the amendment is not accepted, walkers and ramblers—many councillors are walkers and ramblers—will ask for a list as long as one's arm. At least the amendment would limit it, which would be eminently practicable.
  Lord McIntosh of Haringey: What would the list as long as the noble Baroness's arm look like? I cannot conceive of what it would look like.
  Baroness O'Cathain: I can. I have just had a quick word with my noble friend Lord Peel. In the extreme case, it might include the whereabouts of the nearest tea shop or where one could get water. Some of the questions one is asked when one is out walking are quite extreme. I can assure the noble Lord that some people would want "kitchen sinks" and the lot in the list.
  Lord McIntosh of Haringey: That would be much more likely to happen if they went to their local authority and said, "I want this on the access land management plan". We have to get this in proportion. If one flies over the country once the provisions of the Act are fully in force, it will look the same. All we are doing is opening up land for not much more than walking purposes.
  Earl Peel: The Minister is right. No one is suggesting that the Bill will have a major impact on the land itself. But he has failed to realise—the Government have failed to realise it time and again—the impact it may have on land management practices. That is the point.
  Perhaps I may return to the amendment. Does the Minister envisage the possibility of some form of duty on the Countryside Agency to review after a period of time how the Act is working? That would give the agency an opportunity to discuss with access groups and owners all the management implications in order to see whether the Act is working effectively and whether ways and means of streamlining it and ironing out some of the difficulties, which are bound to arise, can be found.
  Lord McIntosh of Haringey: The amendment is concerned with access authorities. I have already agreed with the noble Baroness, Lady Miller, that the role of the Audit Commission is relevant. It will have a remit in relation to access land and will be carrying out reviews. That is entirely welcome. The relevant authorities—the Countryside Agency, the Countryside Council for Wales and the national park authorities—will be carrying out reviews and will cover the points of concern here.
  Lord Glentoran: I thank the Minister for that explanation. I am not totally satisfied. The amendment is about ensuring that all the restrictions and all the provisions of the Bill are properly and correctly carried out. I am surprised by the Minister saying, "After all, it is only a limited right. It is not really a very big thing". It is a very big thing. It is an unrestricted right over huge acreages of ground for a good many people in a way that has never been tried before. I suggest that the Bill really is a big deal. Noble Lords on all sides of the Committee are putting a great deal of work into trying to get the Bill right. It has been said time and again that, if the right management is in place, everyone will have fun, there will be no aggro and everything will be as everyone would like it to be.
  I hear what the noble Baroness, Lady Miller, says about local authorities already being overloaded. But if they are already asked to make 40 strategic plans, is the Bill so unimportant that it is less necessary for them to take seriously a public strategy on how they wish the Bill to operate in their area?
  I confess that I have little knowledge of the workings of local authorities in this country, although I have a good deal of knowledge of how they work in Northern Ireland. The Minister said that the Audit Commission will have a remit to carry out reviews. That is of some comfort. The noble Baroness, Lady Miller, said that other organisations have to produce strategies which will be built into the community plan. How will access to the countryside be built into the plan? Who will write or produce the strategy which the local authority will incorporate into the community plan?
  Many valuable comments have been made. I have heard what the Minister has said. However, I believe that we should take the matter further at Report stage. I hope that the Government will clarify that local authorities will be required to take seriously their responsibilities in relation to the Act. We know that many good local authorities will leap to it. We also know that others may be a little slow to move.
  Lord McIntosh of Haringey: I certainly do not want to give any impression that we are not determined that local authorities should take their responsibilities seriously. I hope that nothing I have said has given that impression. But that does not mean that we support a plan. It would not really matter if the amendment were changed in order to remove some of its absurdities. The idea of a plan is fundamentally unacceptable.
  Baroness Miller of Chilthorne Domer: I presume that the question directed to me by the noble Lord, Lord Glentoran, was not entirely rhetorical. Perhaps I may say simply that, because of the way local access forums have been constructed by the Bill, I believe that they will play a fundamental role in feeding into any community plan drawn up by the access authority. I hope that the mechanism will work well.
  Lord Glentoran: I thank the noble Baroness for that response. However, I understand that at present there is no hardline guarantee that access authorities will be set up; any more than there is a hardline guarantee that
  18
  wardens will be appointed; and any more than we have been given details of the regional production schedules for regimes of restrictions and closures. These points have not been put on to the face of the Bill.
  Having heard what the Minister said, I understand the Government's determination not to have anything to do with the amendment. Furthermore, I sense that the Government feel strongly that no requirement should be put on to local authorities to produce plans. We feel the opposite. We shall return on Report with a different form of words. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  3.30 p.m.
  Lord Renton Lord Renton moved Amendment No. 302:
  After Clause 38, insert the following new clause—

  INDEMNITY FOR COSTS ARISING FROM THE RIGHT OF ACCESS
  (".—(1) Any person with an interest in land shall be entitled to be indemnified for any additional costs and expenses reasonably incurred as a result of the right conferred by section 2(1) or for any increased liability or loss arising therefrom.
  (2) Regulations shall make provision for the form and procedure by which such amounts may be recovered.").
  The noble Lord said: In the absence of my noble friend Lord Brittan of Spennithorne, I trust that it will be in order for me to move Amendment No. 302 and speak to Amendment No. 303 standing in his name. It is not surprising that he is absent. I have just motored 70 miles in the most appalling weather conditions and it is clear that many noble Lords will suffer delays.
  These two amendments are self-explanatory and, I should have thought, extremely necessary. We cannot assume that the right of access will never cause any damage or difficulty on private land. It may well do so. For that reason, I hope that the Government will consider the desirability of dealing with such matters in the way expressed in these two amendments.
  The first amendment is clear. We need only refer to Clause 2(1) of the Bill, which grants the right of access. Amendment No. 303 makes the useful suggestion that any rights of compensation which may arise from trouble caused by access to land should be dealt with in the way that it is already dealt with under the National Parks and Access to the Countryside Act 1949. That legislation has worked very smoothly.
  With those simple suggestions, I hope that the Government will look favourably on both amendments. I beg to move.
  Baroness Mallalieu: Many of us who heard the noble Lord, Lord Brittan of Spennithorne, before the start of the Committee stage were troubled by what he had to say as regards the Bill and how it will comply with the European convention. I support the amendments just moved by the noble Lord, Lord Renton.
  Quite apart from the position in law, it is surely a question of simple fairness and of natural justice that if the law is changed to give more rights to the population in general over private land, then the

  19
  owner of that property should not be required to shoulder the cost of the new legislation himself—where there is a cost.
  As we all know, the Bill will extend the right of access on private access land to everyone. Surely, therefore, it would be unfair if the reasonable costs that necessarily must be incurred had to be borne by the owner. Why should the owner pay for what the rest of us will in due course enjoy? Equally, if the value of that land can be shown to have suffered as a result of the new access arrangements, fairness surely demands that the owner should receive some compensation for his loss.
  I am aware of the view of Mr Michael Meacher which appeared in Hansard in March last year when, in a Written Answer, he stated that the cost benefit analysis study undertaken by the Government,
  "supports the view that landowners will not suffer significant losses or costs".—[Official Report, Commons, 17/3/00; col. WA 670.]
  That may be so, but many people believe otherwise. If the Government are right in their view and there are no significant costs or losses then there can be no valid claims to compensation. However, the Bill should contain provisions to meet valid claims, should they arise, and of course to meet our obligations under the provisions of the Human Rights Act 1998. For that reason, I support the noble Lord's amendment.
  Lord Williamson of Horton: I must be doubly refreshed from my weekend in the countryside because I am intervening for the second time this afternoon.
  I should like to comment on this amendment because it is important. We are making a decision—it is an important decision—to put in place a substantial change in the conditions surrounding the ownership of access land. To that end, the noble Lord, Lord Brittan, made a strong intervention at an earlier stage as regards this change and questioned whether the Bill is compatible with the European Convention on Human Rights. That is a question which no doubt will be tested in the courts before too long.
  In any event, it seems to me, as it has seemed to others who have spoken in the debate, that it is intrinsically reasonable that the financial consequences for owners and tenants, if clearly identified, should not be ignored and that where additional costs and expenses are incurred, they should be indemnified.
  I shall speak only to Amendment No. 302, which is quite specific. Costs and expenses have to be identified and they must result from the consequences of the Bill. The amendment is therefore important and should be seriously considered for inclusion in the Bill.
  Lord Peyton of Yeovil: I think we should all be grateful to my noble friend Lord Renton for stepping in and moving such very sensible amendments.
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  The noble Lord has every ground to be grateful to the noble Baroness, Lady Mallalieu, because she has spared him from a very long speech from me. Indeed, she put the case better than anyone else could have done, I am most grateful to her.
  When the noble Lord responded to an earlier amendment on behalf of the Government, he somewhat gave the game away. He minimised the changes which are intended by the provisions of the Bill by commenting lightheartedly that he "seldom leaves a flank open". I was astonished by that remark. He suggested that, once the Bill comes into effect, if one were flying over the country and observing the land, one would see hardly any changes; indeed, one would observe only a few more people out walking, However, that neglects to respond to the major point in most people's minds—or at least among those who do not like the Bill—that the Bill represents an interference with land management. It is our fear that the Government are persisting in their belief that land management is an easy and simple affair. Plenty of noble Lords with greater experience than I in the Committee would be able to contradict that view. I hope that the Government will look sympathetically at the amendment and will bear in mind what has been said so eloquently by the noble Baroness.
  If anyone suffers financially as a result of a deliberate, thought-out, government policy—either through their property losing value or by being put to some unforeseen expense—they should be compensated. I return to the point made by Mr Meacher, the Minister for the Environment: if he is absolutely satisfied that no significant losses or damage to landlords will follow the legislation, there is absolutely no shadow of an excuse for not making that conviction copper-bottomed by accepting the amendment. I hope very much that the Government will do so.
  Earl Peel: I agree with my noble friend Lord Peyton. Certainly the noble Baroness, Lady Mallalieu, has put the case for natural justice as well as anyone could.
  As to the question of compensation, I have always taken the view that it will be difficult to establish compensation for a diminution in the value of the land. As my noble friend rightly said, if the Government feel that that is not likely to happen, there should be a copper-bottomed guarantee for the few cases that may arise. That seems quite logical, common sense and natural justice.
  However, I should like to ask the Government about indemnity for costs arising from the right of access. I think I am right in saying that in the Peak Park, which has been involved in access agreements for a great number of years, an established pattern has developed by which the access authority pays the people involved in land management a certain figure per acre per year—I believe it is £4 per acre per year—to reflect the costs incurred through land access. If this practice has been established—which it clearly has been—under an experienced authority such as the Peak Park, I cannot understand why this should not also apply generally to other access areas.

  21
  There will be an on-going cost to owners. I should be interested to know why the Government have decided in their wisdom to refuse to pay any such costs to the people who will incur them.
  Baroness Strange: I support this amendment on the grounds of fairness. If you go into a china shop, take down a cup and saucer and inadvertently break it, you are responsible for the breakage, not the owner of the shop. That is fair and reasonable. Likewise, if you are walking along the street and you drop litter, someone from the council will come and pick that litter up. But you have paid for that to be done in your rates and taxes. If people come into a particular part of the country where they have not been before, there must be a responsibility for any damage they do.
  Baroness Carnegy of Lour: I hope that when the Minister replies he will give in full the Government's reasons for thinking that this part of the Bill does not contravene the Human Rights Act. My noble friend Lord Brittan is fairly convinced that it does and we have not yet heard an answer on that issue. I hope that the Minister is able to give one. I do not know what my noble friend Lord Renton plans to do, but I hope that he will not take this matter to a Division today. What my noble friend Lord Brittan said was very interesting, and I feel that we should have an opportunity to hear from him again. The Minister has certified that the Bill does not contravene the European Convention on Human Rights; I hope that he will give his reasons for that.
  Like my noble friend, I was interested when the Minister said that if you looked down from an aeroplane you would not see any difference in the landscape as a result of the Bill. I am not sure about that. I have never had responsibility for running a commercial concern in an area where grouse shooting, deer stalking and so on takes place, but as I listened to previous debates I wondered whether the people who own that wonderful land will think it is worth the candle to go on doing so. If they part with the land and it becomes access land, with no grouse shooting upon it, the heather will not be burnt and there will be no commercial interest in taking care of it in the way that it is taken care of at the moment. We need to realise that there is a danger that people will feel that it is not worth it. At the moment they do it for all kinds of reasons, largely economic—both for the area and for themselves—and pleasure.
  In Scotland, where there is no law of trespass, people walk about on land—but they walk about on it without all these bureaucratic arrangements that we are now setting up. They do so with an understanding that makes some of these rules and regulations unnecessary. I do not know how the legislation will be applied in Scotland. We have heard dire suggestions that it may be even more bureaucratic, but, as people already walk on the land in Scotland—no one can keep them off it—I am not sure that that will be necessary.
  I follow the Bill with interest, not only for itself but for what it may mean for the future of the area in which I live. The noble Lord should not consider that the Bill
  22
  will make no difference to the countryside. If owners or owner occupiers have to pay for all the things they may have to pay for, they may well pack it in, to coin a phrase. I hope that the Minister will carefully consider that. I look forward to his response.
  Lord Marlesford: I am slightly confused. My noble friend Lord Renton moved Amendment No. 302 rather than Amendment No. 303, with which it is grouped. On the other hand, Members of the Committee seem to have been discussing both together, so I hope that I am in order in referring to both amendments.
  Lord Renton: In moving Amendment No. 302, I also referred to Amendment No. 303 and the need for it.
  Lord Marlesford: That reinforces my intention to refer to both amendments. We should emphasise that they are totally different.
  Amendment No. 302 refers to compensation for additional costs which fall upon landowners as a result of the legislation. My impression from last week's proceedings is that the Government have largely accepted this. We have already had undertakings that they will pay for signing, for the additional fencing that may be necessary, for the collection of litter and for other items of additional cost. It seems to me that the Government have accepted that principle already. Provided that there is careful scrutiny of claims to ensure that they are not spurious or exaggerated, it is obvious that that is a principle which is within the existing remit of public policy for such compensation to be made.
  Amendment No. 303 is a different matter. It is a major issue. With great respect to the Government, I am not entirely sure that it will be an issue for them to decide. In his interesting interventions at earlier stages of our discussions, we had, as it were, a forewarning from my noble friend Lord Brittan that it will be a matter of the interpretation of the convention. As we all know, that interpretation is ultimately not for the courts in this country—although we have been told repeatedly that now that the convention is enshrined in British law it will be a great deal easier for the courts in this country to interpret it and obviate the need for appeals overseas. I can see why the Government may at this stage be reluctant to concede the principle, because it could be pretty expensive. Nevertheless, it seems to me that it will be hard for the courts to reject at any rate the fact that there will have been a diminution in the value of land. I should state that I have no personal interest in this matter.
  I have already received, as no doubt have other Members of the Committee, representations from landowners who believe that they will be affected. I am thinking of one particular major public landowner. Those who have rented the sporting rights have indicated that they will not be prepared to pay the same rents for sporting rights once access rights come into force. I suggest that that would be a simple test applicable by the courts in deciding whether there has been a diminution in the value of the land concerned.

  23
  On the big issue of whether there should be compensation for that diminution in value, I suspect that we shall have to leave it to the courts to interpret under the convention.
  Lord Jopling: I strongly agree with the comments of my noble friend Lord Marlesford. I regard this as one of the most important arguments. Those who have assets whose value is caused to decline, or who have been put to some additional expense as the result of the proposed legislation, ought to be compensated. I hope that we shall divide the House at some stage during consideration of the Bill. We look forward to hearing the Government's response.
  I had not intended to enter the debate at this stage; however it was stated that the look of the countryside will not be changed in any way as a result of the Bill. That is untrue. For many years in another place I represented a large area of the southern part of the Lake District. Anyone who cares to contact the Lake District planning board, or who goes through successive reports of its meetings, will see that one of the most serious problems that the national park authority has had to face over the years has been the way in which more and more people have come to the Lake District and used the paths. From miles away, it is possible to see the way in which the paths course across the fells and the mountains. Worse than that, when a pathway becomes established and is used more and more, particularly in an area such as the Lake District where there is high rainfall, people walking through the wet places turn them into muddy patches, so the next lot of people who come along divert from the path. I could take Members of the Committee to a great many areas—and officials in the Lake District National Park know of a great many more—where great scars are visible on the sides of hills and mountains where the paths have now become great strips, many yards wide, greatly marring the view. I suspect that the same is true in the Peak District and in other national parks.
  Open access will result in books and articles being written about walks on the newly open land. I refer to people such as my former constituent, the great Mr Wainwright, whose books about walking in the Lake District are so well known and admired. People like him will set out advice to walkers as to where the best walks are to be found, and footpaths will be established. Without question, exactly the phenomenon that I have described will occur on other access land. I do not complain; I merely attempt to explain the inevitable result of this right, and argue with those who say that the look of the countryside will not be altered. It will be altered: the line of the paths will become a clear visual feature and will tend to grow bigger every year, as has happened with certain footpaths in the Lake District.
  Baroness Byford: I support the amendment tabled by my noble friend Lord Brittan of Spennithorne and thank my noble friend Lord Renton for moving it on his behalf. If the Minister was in any doubt about the
  24
  need for the amendments, the contributions from all sides of the Committee will have reinforced the case for them. The noble Baroness, Lady Mallalieu, expressed her concerns. Our debate has been diverted from the matter of pure fairness mentioned by the noble Baroness, Lady Strange, to the whole question of the economic prosperity of the areas concerned. The Minister cannot argue that the new legislation will have no effect, not many people will use it, and therefore no provision will be made, against those who say that if it will indeed have no great effect, those who are affected should surely be able to seek compensation. In certain parts of the world, sadly, wars are still fought over land. I declare a "non-interest": we have land in East Anglia, but it is not access land. However, the Bill will affect some of our owner occupiers and tenants. I believe that the Government have underestimated the importance of Amendments Nos. 302 and 303.
  As my noble friend Lord Jopling said, the amendments deal with two totally different issues. I hope that the Government will accept the strength of feeling on all sides of the Committee and that they will respond to the individual items raised—I have listed 10 or 11. I do not propose to go through each of the issues. If I did so, Members of the Committee might become restive. However, I should like to add weight to the sound views that have been expressed. I believe that the important difference that the Bill will make to those who live and work in the affected areas has been underestimated.
  Lord Whitty: I agree that the two proposed new clauses are important. It is important that human rights considerations are addressed in our debates. However, I do not see any need for compensation in the general sense proposed, nor do I believe that that contravenes any human rights provisions.
  The amendments would provide for compensation to be payable in three instances: for any additional expenses incurred; for increased liability; and for any diminution in the value of land resulting from the new right. Other parts of the Bill deal with those issues adequately. But let me address the Human Rights Act issues raised by—
  Lord Roberts of Conwy: Perhaps the Minister will allow me to intervene. He will have heard my noble friend Lord Peel refer to access agreements already established in the Peak District. I am aware of access agreements in other national parks. They mean that owners—farmers—have been compensated for any disturbance, diminution in value and so on. Is the Minister saying that those access agreements are no longer necessary and that those farmers or landowners will not be compensated further when their agreements with the relevant authority come to an end?
  4 p.m.
  Lord Whitty: Whatever is covered by the voluntary agreements within the Peak District, they do not provide the kind of access or the provisions to protect the interests of the landowner that are contained

  25
  within this Bill. Indeed, they have much less generous provisions in relation to restrictions and do not remove the liability, for example, for natural features of the landscape, let alone the wider exclusion of liability for which we have indicated we shall bring forward a further amendment. Therefore, the position in the Peak District is, first, a voluntary position; and secondly, it is not access with the safeguards to the landowner, as provided for in this Bill. It is actually more widespread access than that provided in the Bill.
  Perhaps I may address the Human Rights Act question because my noble friend Lady Mallalieu, the noble Lord, Lord Renton, and, indeed, the noble Lord, Lord Brittan, on a previous occasion have laid great emphasis on this legislation not being compatible with the Act. I profoundly disagree with that interpretation. As the noble Lord indicated, the convention on human rights states:
  "No one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law … The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest".
  We do not regard the introduction of a statutory right as "taking a property", but clearly it does fall under the second of those provisions that relate to the control of property. Where there is a taking of property, in almost all circumstances the issue of compensation arises. But compensation is not necessarily required to achieve the kind of balance stipulated in the Human Rights Act in the case of action concerning the control and use of the property, rather than the "depriving" of the property. Therefore, the issue is not black and white: it is an issue as to whether the balance is adequate; whether there is discrimination; and whether the procedures under this legislation comply with natural justice.
  I turn now to each of the provisions for which compensation is claimed under these amendments. First, there is the additional cost. The Bill has been constructed and subsequently amended to minimise the cost impact on landowners. As my noble friend said, it is true that the evidence available prior to the introduction of this Bill showed that few landlords would be significantly affected. But even for those few the Bill's provisions are designed to allow for those effects to be either removed or minimised. Some of the amendments adopted in another place and here will reduce further the likelihood of any cost falling upon the landowner. Indeed, the noble Lord, Lord Marlesford, acknowledged that fact when he referred to some of those amendments.
  Given all those measures, the funds that we shall make available to ensure the proper operation of the new right and the provision as regards stiles, signposts and so on (which falls on the access authority and not on the landowner), we cannot see why there should be any significant additional cost to the vast majority of landowners. That includes the sort of indirect, economic cost to which reference has been made, especially by the noble Baroness, Lady Carnegy; namely, that the effect would be to deprive the
  26
  landowner of the economic income to which he is entitled. If anything, the provisions of this Bill will enhance the attractiveness of the land and not diminish it.
  As to the kind of damage to which the noble Baroness—
  Lord Peyton of Yeovil: I hope that the noble Lord will explain what he just said. I understood him to say that the effect of this Bill would, if anything, be to enhance the value of land owned by landowners. I fail absolutely to understand that statement.
  Lord Whitty: I explained the position last week when the noble Lord was not present in the Chamber. First, in relation to the provision of the type of facilities that I mentioned, the landowner may well be able to gain significantly greater economic income from the land than he has hitherto. Secondly, as regards liability, someone may have access to the noble Lord's land at present under some free arrangement. The noble Lord is subject to full liability for that person should he be injured or should anything else befall him, whereas this provision provides for the minimal liability in relation to trespassers. Therefore, in a number of cases— though not all—the prospective costs for a landlord would be less as a result of this Bill than they are now.
  As to the kind of damages to which the noble Baroness, Lady Strange, referred, most would be criminal or negligent damages and subject to the normal civil or common law. Therefore, they would not arise in this case. On the question of additional facilities, the Bill deliberately puts no obligation on landowners to provide any facilities for those using the access rights. They need not contribute to those facilities—such as gates, bridges, stiles, and so on— although some may choose to install them and create paths. However, that is their choice. Indeed, where such facilities are required, the access authorities would pay for them.
  I turn now to liability, the second area for which it is claimed compensation should be paid. As I said, the liability is reduced to the liability that is owed to trespassers in this case, rather than being full liability. Indeed, we dealt with this point in our debate on occupiers' liability last week. The Government have indicated that we are prepared to remove even this limited liability owed to those exercising the right of access in relation to risks arising from, for example, common boundary features, as well as from natural features of the landscape. Again, the liability regime that we are proposing for access land will not give rise to any significant increase in insurance premiums and in some cases will actually reduce that liability. I give way.
  Baroness Byford: I appreciate what the Minister is saying; indeed, I am sure that the Committee welcomes his remarks. However, this highlights one of our difficulties. During the early stages of the Bill we debated such matters and the Government indicated that they would return with some terms, concessions, understandings or even amendments to this effect. But

  27
  we do not have such concessions before us. Therefore, it is most difficult to determine where such extra costs will be met and where they will not. I do not doubt the Minister's word for one minute but I am sure that he will understand why the confusion has arisen. It is difficult for those noble Lords who were not present on the previous occasion to understand quite what the Government are accepting and what will be left for the landowners or land managers to undertake.
  Lord Whitty: I accept some of the noble Baroness's strictures in this respect. Indeed, it might have been better if we had approached the matter in the way that we have handled Part II today and thereby shown how our intended amendments would apply. However, even in its present form, the Bill contains a significant number of measures that will restrict any cost likely to fall upon the landlord and ensure that other authorities meet the major costs rather than the landowner. Indeed, as we have gone through the provisions at some length, I indicated a number of other areas that would increase yet further the protection of the landowner in this respect. When taken together, those provisions are pretty generous. Moreover, if added to the provisions on restrictions and closures that do not apply in relation to voluntary access in most cases, it will be seen that they are pretty substantial as regards protecting the landowner from being faced with additional costs, liabilities or loss of value.
  In relation to loss of value of the land overall, the claim suggested in Amendment No. 303 is that landowners should be able to claim for the depreciation in the value of their land five years after the right is put into effect. The noble Lord, Lord Renton, claimed as a precedent the National Parks and Access to the Countryside Act 1949. But that precedent is more apparent than real. That Act concerned the opening of particular parcels of land upon the decision of a local planning authority. One landowner might therefore find that he had to give access to his land while his neighbour did not. In other words, the measure was inherently potentially discriminatory and therefore an issue of human rights could arise.
  Lord Renton: If I may say so, the noble Lord misunderstood what I said about Amendment No. 303. All it does is to state how the compensation which would arise under Amendment No. 302, due to the right conferred by Clause 2(1), would be paid. Amendment No. 303 states, with reference to compensation,
  "in the same manner and on the same basis as provided under … the National Parks and Access to the Countryside Act 1949".
  It merely amplifies Amendment No. 302. I say with great respect that I believe that it is a sensible amendment for my noble friend Lord Brittan to have tabled.
  Lord Whitty: I accept the inter-relationship between the two amendments to which the noble Lord, Lord Renton, referred. However, I made the point that the
  28
  provision in the 1949 Act deals with an entirely different situation: where there is discrimination between landowners who own the same kind of land. Therefore, the issue of compensation arises as there is discrimination on the part of the planning authority in that situation. That authority is taking one piece of land into the provisions of that Act but is leaving parcels of similar land outside it. However, we are talking here about the whole of open countryside as defined in the Bill and as identified by the Countryside Agency in its mapping provisions. That is an entirely different situation.
  Other parallel Acts which provide access do not provide compensation. The Law of Property Act 1922, for example, contains no provision for compensation although it introduced a wide right of access on the so-called urban commons. As the Committee will be aware, urban commons do not just mean urban commons but commons which were under the control of urban district councils and include a number of commons in the countryside. I take a more modern example. The Dartmoor Commons Act 1985 also contained no provision for compensation. If anything, the precedent lies on my side of the argument and not on that of the noble Lord, Lord Renton.
  I am aware that there is considerable concern about the compatibility between the provisions we are discussing and the Human Rights Act. I believe that I have said enough on that matter now, although references were made in earlier stages of the Bill to particular cases to which we may need to return if this matter is pursued at a later stage. However, I do not accept that there is a need for general compensation in the Bill, nor do I accept that the provision is incompatible with the Human Rights Act. I therefore hope that the noble Lord will not press the amendment and that we can proceed with the rest of the Bill.
  Lord Monson: Before the noble Lord sits down, does he accept that he has not yet responded to the point so well made by a number of Members of the Committee; namely, that if Mr Michael Meacher is so certain that there will be no diminution in land value in consequence of this Bill, the Government have nothing to lose by putting their money—or rather the taxpayers' money—where their mouth is and accepting Amendment No. 303?
  4.15 p.m.
  Lord Renton: It is better to confess before one is found out—that is what I sometimes used to say to clients I defended. I therefore confess that it was not until two minutes before Amendment No. 302 was called that I realised that my noble friend Lord Brittan was not present. However, having had a quick glance at it, I felt strongly that that amendment ought to be discussed. I am grateful to the noble Baroness, Lady Mallalieu, to my noble friend Lady Carnegy and to Members on all sides of the Committee for the powerful arguments that they have put forward in favour especially of Amendment No. 302.

  29
  The noble Lord, Lord Whitty, went to some lengths to attempt to defend his arguments. His main point seemed to be that other parts of the Bill deal with these matters. However, they do not. The nearest that we get to that is in Clauses 12,13 and 28. However, there is no procedure among those clauses for providing compensation where it needs to be provided. Of course it will not be a matter of vast compensation on a fair-sized estate. However, damage can be done, as my noble friend Lord Jopling so wisely pointed out from his experience in the Lake District where public rights of way have been so heavily used that they have become scars on the hillside. I do not think that he used the word "scars", but he went pretty close to it.
  This is an important matter which must be further considered. I do not propose to ask the Committee to divide on these amendments this afternoon. My noble friend Lord Brittan will want to consider the debate that has taken place, as we all shall. I hope that the noble Lord, Lord Whitty, will think again about this matter and will bear in mind especially what the noble Baroness, Lady Mallalieu, said. With those thoughts in mind, I beg leave to withdraw the amendment.
  Lord Marlesford: Before my noble friend sits down, I hope I may take the opportunity as a non-lawyer to ask the Minister three, simple, common sense questions. First, does he agree that the premise on which the Government are putting forward this legislation is that there will not be a diminution in the value of land as a result of access? Secondly, does he agree that if someone considers that there has been a diminution in the value of land, it will be for the courts to determine whether or not that is true? Thirdly, will it be for the courts to decide whether there is liability for compensation for any diminution in value?
  Lord Whitty: The Bill seeks to provide rights for the public as a whole to enjoy property which belongs to a limited number of people. It is the Government's right to pass such laws. In our judgment there will be no diminution in the value of land as a result of that access, but I cannot guarantee that that will be the case. However, I can guarantee that there will be no discrimination between landowners with regard to access. The Bill provides no liability for the state as a result of any reduction in land value. I do not believe that that is required by the convention on human rights; nor should it be. We are dealing here with the rights of people as a whole. The balance is provided not by protection of current values but by the payment of the cost by other authorities and the reduction in liability which is written into the Bill. That is the balance that is provided, not the balance of compensation. I believe that that conforms with the convention on human rights.
  Earl Peel: I hope that I may ask the Minister a question which I do not think that he fully addressed when he responded to my noble friend. I think that I am right in saying that the Minister said that the Bill allowed for the minimisation of costs to owners. I believe that those were the words he used. But that
  30
  is not quite the same as meeting the full costs. Can the Minister answer directly whether he can give a commitment that access authorities will meet the full costs to anyone who suffers those costs under the Bill?
  Lord Whitty: The noble Earl will have to be more precise as to which costs. The costs of providing adequate access will fall to the access authorities. There will be no cost to the landowners of providing access.
  Earl Peel: If a land manager incurs direct costs because of the access provisions under the Bill, will the access authority pay those direct costs to that individual?
  Lord Whitty: I am still unclear what the noble Earl means by "direct costs". If he refers to the provision of gateways, stiles and facilities, those costs will fall on the access authority not the landowner. That is clear in the Bill.
  Lord Peyton of Yeovil: As I see it, the Minister has still not come clean on one point. The Government—both Mr Meacher and the noble Lord—appear to be confident that there will be no damage or loss to landlords as a result of the Bill and that, therefore, there will be no call for compensation. I do not think that I misunderstand in any way what the Minister said today. The question is this; if he is so confident, why will he not make a formal move to meet the anxieties of those who do not agree with him and accept the amendment or something very like it?
  Lord Renton: Before the Minister answers my noble friend's point, perhaps he will bear in mind that in very dry weather people who are given the right of access may well set fire to land, plantation or hedges, and so on. That factor needs to be borne in mind. I do not know whether the noble Lord wishes to answer any of those points before I withdraw the amendment.
  Lord Whitty: In that situation, as in those situations described by analogy by the noble Baroness, Lady Strange, there are the normal proceedings of civil and criminal law and civil compensation. They do not have to be provided as a result of granting access. If someone who has access then causes criminal damage, we are in the area of criminal law. That is and will remain the situation.
  Lord Peyton of Yeovil: The Minister has not yet answered. My noble friend Lord Renton intervened. I ask the Minister to answer this single question. If the Government are so confident—we challenge it—that no damage or loss will follow as a result of the Bill, why do they not accept this simple amendment? It will not cost them anything.
  The Earl of Mar and Kellie: When the Minister replies, will he explain how unwitnessed damage will be compensated for?
  Lord Shepherd: Perhaps I may intervene. We have been discussing the amendment for 51 minutes. I do

  31
  not in any way decry the time the Opposition have taken on the amendment. However, the noble Lord, Lord Renton, made it clear to the Committee that it is his intention not to press the amendment and that he wishes to withdraw it. In view of the fact that the noble Lord who was to move the amendment is not in his place, perhaps that might be a justification for the noble Lord, Lord Renton, asking the leave of the Committee for the amendment to be withdrawn.
  It is quite wrong that we continue to debate the amendment when it is clear that the noble Lord does not intend to press it—unless some Members of the Committee intend not to listen to him and to press the amendment. I suggest that in fairness to all the other Members of the Committee who sit here for many hours we should let the amendment be withdrawn and move on. We should not abuse the position of the Government in the sense of time.
  Lord Peyton of Yeovil: The noble Lord speaks with the weight of a past Leader of the House. I accept much of what he says. However, the Minister has been faced repeatedly throughout the debate with a simple question, which I asked again just now. He has not attempted to answer it.
  Lord Shepherd: That is not a new position in Committee. I have been a Member of this House for some 44 years. I have rarely, if ever, found myself with a satisfactory reply. I suggest we move on.
  Lord Renton: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 303 not moved.]
  Earl Peel Earl Peel had given notice of his intention to move Amendment No. 304:
  After Clause 38, insert the following new clause—

  GENERAL DUTY TO GIVE PRECEDENCE TO CONSERVATION
  (" . In exercising any function under Part I of this Act in relation to any access land, any access authority, the appropriate countryside body, the Secretary of State and the National Assembly for Wales shall be under a duty to give precedence to the conservation of the flora, fauna, geological or physiographical features, and any scheduled ancient monument, on the land.").
  The noble Earl said: Noble Lords, in particular the noble Lord, Lord Shepherd, will be delighted to hear that I have no intention of taking up too much of the time of the Committee on the amendment. I have made most of the remarks that I would have made when discussing a previous amendment.
  Noble Lords: The amendment has already been debated.
  Earl Peel: I have not withdrawn the amendment. I wish to make one brief remark. The purpose of the amendment was to see a commitment—
  Baroness Farrington of Ribbleton: The amendment needs to be moved in order for anyone to speak to it. It is either moved or not moved. It cannot be spoken to until it is moved.
  Earl Peel: In order not to waste the time of the Committee, I shall beg leave to withdraw the amendment.
  The Deputy Chairman of Committees (Lord Strabolgi): The amendment cannot be withdrawn if it has not been moved. It is best for the noble Earl to say "Not moved".
  [Amendment No. 304 not moved.]
  Lord Glentoran Lord Glentoran moved Amendment No. 304A:
  After Clause 38, insert the following new clause—

  CONSTITUTION OF THE AGRICULTURAL LAND TRIBUNAL
  (" . Schedule (Constitution of the Agricultural Land Tribunal) shall have effect.").
  The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 306A; the one following immediately upon the other.
  The amendment concerns amending the constitution of the agricultural land tribunal. The new clause of the new schedule would make appeals under the access provisions to the agricultural land tribunal rather than to the Secretary of State or the National Assembly for Wales. The agricultural land tribunal was established in 1947 to hear applications between farmers, landowners and, it was envisaged, the Minister on agricultural matters. It has functioned successfully for over 50 years. The tribunal sits with a legally experienced chairman, a farming member and a landowner member.
  In order to deal with access matters, the tribunal should be re-formed to have a farming or land-owning member and a member representing users of access rights. A special panel of assessors expert in ecology, land management, nature conservation or heritage protection should be formed to advise the tribunal if specialist issues arise.
  The amendments simply make these changes to the agricultural land tribunal provisions in the Agriculture Act 1947. The composition of the tribunal on existing matters is unaltered. If one gives it considerable thought, I believe that that could be a helpful amendment. I beg to move.
  4.30 p.m.
  Baroness Young of Old Scone: I am a little confused. We seem to be in danger of making a silk purse out of a sow's ear—if that is not the wrong thing to say in view of the difficulties of the pig farming industry at present. It is true that the agricultural land tribunals have worked successfully since 1947, although I temper somewhat the word "successfully". They are

  33
  legalistic and rather slow. They have a slim, focused remit which the amendment would extend quite considerably.
  The constitution proposed in Amendment No. 306A does not fit the bill. I presume that the new access assessors panel would ensure that ecological, nature conservation and heritage issues were taken into account. It would be unhelpful if it sat to one side and had no real role. It is unclear how the panel would be utilised. Would it be at the discretion of the chairman?
  The principal parties should include bodies that have a role in nature conservation and heritage protection. It is unhelpful to specify only the landowners and those who wish to have access as the principal parties.
  A tribunal is not the right mechanism for dealing with appeals, because it implies that, other than the chairman, there will be only the two parties between whom the dispute has arisen. That is not the right way forward, because all the relevant points of view need to be heard, not just two.
  Splendid bodies though the agricultural land tribunals may be in other ways, for a variety of reasons they are not right in this case.
  Lord Whitty: The amendments would make sense only if the noble Lord had pursued his amendments the other night to ensure that appeals under Part I were heard by the land tribunals instead of the Secretary of State. I am sure that noble Lords do not want to go over all the arguments again, but in essence we do not believe that the agricultural land tribunals are the most appropriate bodies for dealing with appeals under the Bill. As my noble friend Lady Young of Old Scone has said, they deal with specific disputes between agricultural landlords and their tenants that arise under the Agricultural Holdings Act 1986.
  The amendments would alter the constitution of the tribunals, increasing their work load and resulting in a much slower appeals mechanism than is provided for in the Bill. They would also increase costs and, potentially, the time-scale of appeals.
  The Bill makes adequate provision for appeals procedures. The provision enabling the Secretary of State to delegate appeals will allow for the appointment of a person or body with the requisite knowledge, manpower and experience to deal with any appeals that arise. The agricultural land tribunals do not have such expertise and it would be undesirable to impose on them an additional duty along very different lines from their current remit and work load. I hope that the noble Lord will not pursue the amendments.
  Lord Glentoran: I listened with interest to the noble Baroness, Lady Young of Old Scone. I agree with her that the proposed new procedure would take considerably more time; we need results from the tribunals in the shortest possible time, as the Minister has said. I hope that any tribunal that is set up by the Secretary of State or the Countryside Council for
  34
  Wales will be correctly balanced. In that hope and in the hope that the system will respond quickly as well as justly, I rest my case and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clauses 39 and 40 agreed to.
  Clause 41 [Interpretation of Part I]:
  The Deputy Chairman of Committees: Before I call Amendment No. 305, I must inform your Lordships that if it is agreed to, I cannot call Amendment No. 306.
  Baroness Byford Baroness Byford moved Amendment No. 305:
  Page 25, leave out lines 18 to 21 and insert—
  (""livestock" includes cattle, horses, equines, asses, mules, hinnies, sheep, pigs, goats and poultry, and deer not in the wild state, and also while in captivity or while on access land as defined in section 1, pheasants, partridges and grouse:").

  The noble Baroness said: I shall not spend the Committee's time on the amendment. We are trying to broaden the definition of "livestock" to include the animals mentioned in the amendment. I beg to move.
  Baroness Masham of Ilton: I should like to ask a question. "Equines" includes horses and ponies, but does it also include asses, mules and hinnies?
  Baroness Byford: The amendment may not be perfect, but I hoped that it included those animals. I am not sure how the Minister will respond, but that is my interpretation.
  Lord Whitty: The definition in the Bill has been used in previous legislation, such as the Dogs (Protection of Livestock) Act 1953. We see no reason to change it. Adding game birds or farmed deer seems to stretch the definition somewhat.
  The Bill allows countryside bodies and local authorities to impose tighter restrictions where local circumstances demand them. Any extension to protect other species other than those traditionally described as "livestock" in legislation should be dealt with in that way.
  The Earl of Caithness: The Minister relies on the 1953 Act, but I am sure that he agrees that farming has changed a lot since then. Of course it is useful to rely on a previous Act, but it is time to reconsider the issue, given recent rural diversification. It seems odd not to include deer farming in some upland areas, for example.
  What happens if a farmer diversifies by breeding ostriches or deer? Does he have to appeal to the authority for a change in all the rules because he has a different form of livestock that is not covered by the 1953 Act? What happens if he has steers on his ground? There is a fine definition of cattle that does not include steers. Schedule 2 mentions restrictions on dogs, but we do not know what all the restrictions will be. People with dogs will not have a right of access to land that

  35
  has bulls, cows, oxen, heifers and calves, but it looks as though they will have a right of access if there are steers about. The Bill needs tightening up.
  Lord Whitty: I am sure that steers are covered by the term "cattle". The amendment does not cover ostriches. In some localities it may be necessary to extend protection to slightly more exotic species, but I do not think that the amendment is a sensible extension of the definition of livestock that has stood us in reasonably good stead and applies in by-laws throughout the country as well as in the Act to which I have referred. Special provision may be needed in some localities, but not in the Bill.
  The Earl of Caithness: That is a useful reply, but how would a landlord, an owner or a tenant apply to have their livestock protected along with that covered by the 1953 Act?
  Lord Whitty: If the livestock was in a different field or a different part of the property from traditional livestock, if I may call it that, the landlord would apply to the Countryside Agency for an additional restriction for the relevant area.
  The Earl of Caithness: So it is the responsibility of a tenant who wants to farm any animals or birds that fall outside the definition of "livestock" to apply to the Countryside Agency for a revision of the maps and the access provisions?
  Lord Whitty: No; only where it would involve a different parcel of land from that covered by the restrictions which arise as a result of this provision in relation to traditional livestock.
  Baroness Byford: I support my noble friend's comments, particularly with regard to diversification within the farming fraternity. Although it is not the noble Lord's particular responsibility, he will be aware that farming is still in a dire situation, especially in the upland areas. Indeed, all farmers are being encouraged to diversify as much as they can. On looking at my amendment again, it occurs to me that one does not necessarily keep deer in fields; rather, I believe that they stray across access land. I shall certainly look at the matter again but, at this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Whitty Lord Whitty moved Amendment No. 306:
  Page 25, line 19, leave out ("sub-paragraph") and insert ("definition").
  On Question, amendment agreed to.
  Clause 41, as amended, agreed to.
  Clause 42 agreed to.
  [Amendment No. 306A not moved.]
  Schedule 4 [Minor and consequential amendments relating to Part I]:
  Baroness Byford Baroness Byford moved Amendment No. 307:
  Page 53, line 7, at end insert—
  ("DOGS (PROTECTION OF LIVESTOCK) ACT 1953 (c.28)
  In section 1(2)(c) of the Dogs (Protection of Livestock) Act 1953 (penalty where dog worries livestock on agricultural land), for the words "(that is to say not on a lead or otherwise under close control) in a field where there are sheep" there is substituted "(that is to say not on a lead) in a field or enclosure where there is livestock".").
  The noble Baroness said: In moving Amendment No. 307, I shall speak also to Amendments Nos. 308 and 309. The provisions of paragraphs 4 and 5 of Schedule 2 create anomalies in relation to the existing controls over dogs under the Dogs (Protection of Livestock) Act 1953. That Act was designed to tackle sheep-worrying by dogs and would not be overridden by the current Bill. That means that two separate regimes would exist for the control of dogs on different areas of land. I suggest that that would be confusing, both to farmers and users. The controls would differ, for example, between the enclosed in-bye pasture on the floor of a valley and the access land lying above it. Therefore, differences in the controls available would exist even on the same farm.
  That is unhelpful, but the inconsistencies can be remedied by amending the definition of "worrying livestock" in the 1953 Act to make it consistent with the definition in this Bill. The amendment would bring the provisions of the 1953 Act more into line with those under this Bill, which require dogs to be on leads at all times when they are in the vicinity of any livestock. Without those changes, it would be difficult for the Countryside Agency and the CCW to give the public clear and unambiguous information about their responsibilities and the likely penalties if they fail to observe them, both in relation to access and non-access land.
  The Dogs (Protection of Livestock) Act 1953 provides that an offence is committed by anyone whose dog is off the lead or otherwise not under close control when in a field or enclosure in which there are sheep. That offence should extend to include any situation, first, where a dog is not on a lead, thus removing the ambiguity about whether a dog off a lead can be said to be under close control, and, secondly, where a dog is in the vicinity of any livestock and not simply in a field or enclosure in which there are sheep.
  I turn to Amendments Nos. 308 and 309. At present, the liability is attached to the owner or keeper of a dog that worries, kills or injures livestock under the Dogs (Protection of Livestock) Act 1953 and the Animals Act 1971. Further, a defence exists to a charge of criminal damage if an occupier shoots a dog which is attacking his sheep. That comes under the Criminal Damage Act 1971.
  The Dogs (Protection of Livestock) Act 1953 places a criminal liability on an owner whose dog worries livestock. Essentially, under that Act if a dog worries livestock on agricultural land, its owner or minder is guilty of an offence. The definition of "livestock"

  37
  covers bulls, cows, oxen, heifers, calves, sheep, goats, swine, horses, asses, mules, domestic fowl, turkeys, geese and ducks, but does not include the other types of animal mentioned by Members of the Committee.
  The definition of "agricultural land" covers that used as arable, meadow or grazing land or, for the purposes of poultry farming, pig farming, markets gardens, allotments, nursery grounds or orchards. "Worrying livestock" means that a dog attacks or chases livestock or is at large—in other words, not on a lead or otherwise under close control—in a field or enclosure where there are sheep.
  The Animals Act 1971 places a civil liability on a person whose dog may be worrying, killing or injuring livestock. The specific provisions within that Act are, first, Section 3, which provides strict liability for the keeper of a dog which causes damage by killing or injuring livestock, and, secondly, Section 9, which provides a defence against a civil action for killing or injuring a dog if it is for the protection of livestock.
  Two difficulties arise: first, the definitions of "livestock" in the 1953 and 1971 Acts are inconsistent and there seems to be no logical basis for that; and, secondly, the regime is too narrow in scope to protect the legitimate interests of owners of access land. In particular, on much access land game birds are essentially a business asset. The birds are the very reason why that land holds its value. We debated that matter earlier. However, at present under the 1953 and 1971 Acts there is no protection for game birds as they do not fall within the definition of "livestock" as wild creatures.
  My amendment applies to the 1953 Act in relation to access land and broadens the definition of "livestock" to include game birds. The amendment would provide consistency in the definition of "livestock", including game birds, under the Animals Act 1971. I beg to move.
  4.45 p.m.
  Earl Peel: Despite the anomalies to which my noble friend referred—about which she was absolutely right—I wish to refer to what was said by my noble friend Lord Caithness. Things have changed and I believe that perhaps it is time to reconsider the various Acts of Parliament covered by my noble friend's amendment.
  When considering the definitions of "livestock", it seems to me peculiar that turkeys, geese, ducks and various other types of poultry fowl are defined and therefore receive protection under the various Acts of Parliament, yet game birds do not.
  On the previous Committee day of this Bill, the noble Baroness, Lady Young of Old Scone, quite rightly drew the Committee's attention to the particular importance of grouse shooting to the maintenance of the heather uplands and its important economic base. I believe that it is time that such a hugely significant activity in the hills is recognised by proper legislation. Grouse shooting activities produce full-time, part-time and casual jobs and, as I have already mentioned, contribute to the maintenance of
  38
  the environment. Therefore, in this day and age it seems extraordinary and quite illogical that sufficient protection is not given to game birds under the Dogs (Protection of Livestock) Act 1953 and the Animals Act 1971.
  I hope that the Minister will look favourably on this amendment. I know that I am in danger of repeating myself but inevitably I come back to the words of the Minister, Mr Meacher, when he gave the commitment that nothing in the Bill would undermine the economic importance of those areas of land. This is quite a simple way for the Minister to redress what is clearly an illogical situation.
  Lord Whitty: In Committee last week, we indicated that we were looking at bringing forward further restrictions on dogs. But these amendments are not the way to do it. Broader criminalisation and a wider ability to shoot dogs do not seem to me to be the appropriate way to go about this.
  Amendment No. 397 seeks to amend the 1953 Act so that it becomes a criminal offence to fail to keep a dog on a lead in the vicinity of livestock on any land. We do not see any reason to impose new criminal sanctions on access land where there is no clear evidence of necessity. Even more importantly, I should not wish to use the Bill as a vehicle for amending other wider legislation which would have far-reaching implications for dog owners, not only on access land but also on rights of way in any public place and which is not, to my mind, supported by any clear evidence of a need.
  The 1953 Act already makes it an offence for a dog owner to allow his dog actively to worry livestock. I recognise that there is a problem there. But Amendments Nos. 308 and 309 seek to criminalise the worrying of game birds by amending that Act and the 1971 Act. Amendment No. 309 would also provide a defence against civil action for a landowner who killed or injured a dog who was chasing game birds on his land. That, of course, is already the position when a dog worries sheep or cattle or any of the other species currently listed. However, while it may be generally reasonable to assume that a dog owner should be aware of the presence of the livestock and take appropriate action to control his dog, the same is not necessarily true of game birds. We have already, during the sensitive breeding and nesting seasons, provided a general restriction on dogs and, as I just indicated, we have agreed also to consider introducing stronger targeted controls on dogs to deal with particular problems.
  In the consideration of introducing new criminal sanctions, it is important to bear in mind the scope of what we are seeking to achieve through the new right of access. That will be a relatively modest change for the purposes of quiet recreation on foot. We expect its impact, in general, to be limited. The increased sanction should therefore also be limited.
  The main issue raised by the control of dogs is one of balance. The Bill, as it stands, provides protection for game birds in proportion to any potential disturbance. But we have agreed also to look at

  39
  whether there should be any further extension of those restrictions. But criminalising any activity on land as a whole does not seem to be the appropriate way forward and I urge the noble Baroness not to pursue the amendment.
  Earl Peel: Does the Minister not agree that it is somewhat illogical for it to be a criminal offence for a dog to worry a turkey or a duck and yet not if it worries a game bird which has considerably more economic value?
  Lord Whitty: Not necessarily. It depends on the context in which the bird is found. It is difficult to assume that the same degree of control over dogs would be required in certain areas where game birds might be found at certain times of the year as it would when walking through agricultural land.
  As I said, we have already imposed some restrictions on dogs in areas where game birds are to be found and we may wish to extend those restrictions. But we do not want to extend criminalisation and certainly we do not want to extend those provisions to land which is not access land and thereby infringe the rights of dog owners, who also have rights in general law.
  Baroness Byford: I thank the Minister for his response. I return to the comments I made earlier this afternoon. We find ourselves in some difficulty because the Government intend to bring forward their own amendments to deal with the position in relation to dogs. But at the moment we do not know what those amendments are; we do not have them; and it makes this debate extremely difficult.
  Following on from the intervention of my noble friend Lord Peel, I find a strange difference between the position in relation to a turkey, which is not a protected animal in any way—and one can breed turkeys ad lib—and that in relation to grouse or some of the rarer breeds. I should have thought that the noble Baroness, Lady Young, who is in her seat, would identify that it is more important to protect game birds than it is to protect turkeys and the other birds. I do not follow the Minister's argument in relation to that at all.
  I may be misrepresenting him but he gave the impression to the Committee that landowners are going out in a rather gung-ho fashion and shooting dogs ad lib. I hope I misunderstand him about that. That is certainly not the intention. But when a dog worries sheep, the farmer has the right to deal with the dog. Therefore, I cannot see why the Government do not accept my arguments in regard to grouse and breeding birds. There is a difficulty in this Bill because one is trying to balance the rights of access and rights of way against trying to protect, conserve and preserve for the future. Perhaps we shall return to this at a later stage but, for now, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 308 to 310 not moved.]
  Schedule 4 agreed to.
  Clause 43 [Redesignation of roads used as public paths]:
  Lord Whitty Lord Whitty moved Amendment No. 311:
  Page 26, line 29, leave out subsection (3).
  The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 317, 319, 357, 363, 414, 417, 418 and 451. We now move on to consider Part II, which contains provisions designed to improve and modernise the rights of way network in England and Wales.
  These amendments bring all the definitions relating to Part II together in one place. They are technical amendments to a number of clauses which would improve the drafting of various definitions in Part II and consolidate most of them in a new interpretation clause which would then be inserted after Clause 65, avoiding duplication. These amendments, which delete various definitions, pave the way for the consolidation of definitions. I beg to move.
  On Question, amendment agreed to.
  Clause 43, as amended, agreed to.
  Clause 44 [Restricted byway rights]:
  Baroness Byford Baroness Byford moved Amendment No. 312:
  Page 27, line 3, at end insert ("or only a public right of way on foot").
  The noble Baroness said: This amendment deals with a power to downgrade restricted byways to footpaths. It aims to correct an anomaly in the legislation whereby a restricted byway can be upgraded to a byway open to all traffic—which we all refer to as a BOAT—if evidence is produced to show that vehicular rights exist, yet cannot be downgraded to a footpath if evidence is produced to show that no higher rights exist.
  As it stands at present, Clause 44(1) creates restricted byway rights over roads used by public paths, which are called RUPPs and removes the need for their reclassification on a case-by-case basis. However, that is not the end. The clause allows for the route to be upgraded to a full BOAT or to be removed from the definitive map completely if it can be established that no public rights exist along that route.
  At present the status of all other types of right of way can be challenged on the basis of historical or user evidence through the modification order procedure. That is not the case with restricted byways which are a creation of statute.
  Somewhat arbitrarily, the Government have decided that restricted byways can be challenged on only two grounds: that they should exist and be a BOAT or that they are not public rights of way. However, other possibilities exist. In particular, restricted byways could in reality be footpaths and should be open to challenge on that basis too. In effect, restricted byway rights are being created over all footpaths and bridleways currently called RUPPs but there is no loss of any vehicular rights over such ways.
  Surely a more equitable and balanced approach would be also to allow downgrading of the route if it was in reality only a footpath. The suggested amendment seeks to achieve that end. No bridleway

  41
  rights would be lost. Indeed, many bridleways would be upgraded to restricted byways; RUPPs that are footpaths, however, would be preserved for the enjoyment of walkers rather than becoming new and additional routes for horses and carriages.
  An additional issue raised by the creation of restricted byways is the lack of any provision for compensation for the owners of the ways affected. If a footpath is upgraded to a bridleway under a public path order, compensation is payable. In that case the Bill creates restricted vehicular rights for horses and carriages over all RUPPS and compensation should equally be payable. The Government need to explain and justify their approach. I beg to move.
  5 p.m.
  Lord McIntosh of Haringey: As the noble Baroness stated, the effect of Amendment No. 312 would be to prevent restricted byway rights from being created over a road used as a public path—which I, too, shall call a RUPP—if evidence were discovered that it carried only footpath rights.
  That means that surveying authorities would be required, under their duty in Section 53 of the 1981 Act, not only to review restricted byways to see whether they could discover new, previously unconsidered evidence as to full vehicular status; they would also be required to look for new evidence of footpath status, just as they are required to keep under review the status of any highway on a definitive map.
  In our view that would completely undermine the overall purpose of the Bill's provisions for replacing RUPPs with a new category of highway—that of restricted byway. The purpose of the provisions is twofold: first, to give more certainty for walkers, horse riders, cyclists and drivers of horse-drawn carriages than the present legislation by giving them express statutory rights to use restricted byways and in doing so open up the countryside to such recreational users. Secondly, it would reduce bureaucracy by relieving local authorities of their current duty to review the status of each RUPP individually and reclassify it as a footpath, bridleway or byway open to all traffic.
  Under current legislation there is a presumption that a RUPP carries at least bridleway rights. We believe that it is reasonable to build on that presumption in creating restricted byway rights by statute. Landowners with new evidence that a RUPP is a footpath have had, since the provisions of the Wildlife and Countryside Act 1981 came into effect—nearly 20 years—the opportunity to apply to a surveying authority for a modification order.
  Until commencement of Clause 43, they may still do so. The Bill provides the opportunity to make savings for any reclassification and modification orders which have not taken effect before commencement and for the extinguishment of any new rights created by the Bill if an order comes into effect. It would also allow for savings to be made in relation to applications for modification orders. We believe the time has come to reduce the uncertainty over the status of RUPPs,
  42
  which was first addressed in the 1968 Act, and for Parliament to give the public the rights set out in Clause 44.
  This exercise has less meaning the more caveats are introduced. That is why the creation of restricted byway rights is subject to the proviso in Clause 44(3) that a right of way needs to exist over the RUPPs in question. But, given the history of RUPPs and the current presumption of at least bridleway rights, we believe that it is reasonable now to close the book on further investigation of anything less than the rights for which Clause 44 provides.
  The noble Baroness, Lady Byford, referred to the fact that compensation is payable if a bridleway is created over a footpath by order. She asked why it should not be payable if a restricted byway is created over a footpath. In the first instance, the way has never been considered as anything other than a footpath. However, if a definitive map shows a way as a RUPP, that is conclusive evidence that it carries at least bridleway rights.
  Given all the factors—for example, that the addition of rights for non-mechanically propelled vehicles is not a substantial difference; that land owners have had a long time to claim RUPPs as footpaths and will be able to do so until commencement; and that it is our intention that private liability to maintain should be extinguished—we are satisfied that there is not any requirement for compensation.
  On that basis, I hope that the noble Baroness will not press the amendment.
  Baroness Byford: I thank the Minister for his response and accept what he says. I readily acknowledge that the Government will be seeking to make savings. However, it seems odd to have two different systems; that is, to be able to upgrade to a BOAT but not to be able to downgrade. That seems to be nonsense. However, I shall consider the matter again. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 313:
  Page 27, line 12, at end insert—
  ("( ) A highway at the side of a river, canal or other inland navigation is not excluded from the definition of "restricted byway" in subsection (4) merely because the public have a right to use the highway for purposes of navigation, if the highway would fall within that definition if the public had no such right over it.").

  The noble Lord said: In moving Amendment No. 313, I shall speak also to Amendments Nos. 315, 320, 338, 339 and 449A. These are technical amendments relating to the Bill's provisions for redesignating roads used as public paths (RUPPs) as restricted byways.
  The amendments concern RUPPs over which there are public rights of towage at the time of redesignation. The law is not entirely clear whether these rights are a

  43
  species of right of way. The amendments would clarify the relationship between these rights and the specific rights conferred on restricted byways by the Bill.
  Amendment No. 313 to Clause 44(4) provides that a RUPP is not prevented from being treated as a restricted byway merely because it carries public towpath rights. The amendment is based on Section 66(2) in the Wildlife and Countryside Act 1981, which is of the same effect in relation to footpaths, bridleways and byways open to all traffic.
  Amendments Nos. 338 and 339 in Schedule 5 are similar to Amendment No. 313 but relate to Section 329 of the Highways Act 1980. It is necessary to ensure the same approach under this legislation. Otherwise, for example, some restricted byways could fall outside the provisions of that Act. Amendments Nos. 315 and 320 to Clauses 44(5) and 45(1) would ensure that any towpath rights or other public rights which are not rights of way but exist over a RUPP would not be extinguished on the RUPP's redesignation as a restricted byway.
  Amendment No. 449A to Schedule 7 relates to Section 34 of the Road Traffic Act 1988 which makes it an offence to drive elsewhere than on a road. For the purposes of Section 34, the amendment would ensure that the definition of restricted byway is consistent with the footpath and bridleway in Section 192 of the 1988 Act in so far as these might also carry public rights of towage. I beg to move.
  On Question, amendment agreed to.
  The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 314 is agreed to, I cannot call Amendment No. 315.
  Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 314:
  Page 27, line 13, leave out subsection (5).
  The noble Lord said: I recognise that when we come to Part II of this Bill, we have a slightly new cast of characters. I am part of that new cast. I do not necessarily agree with the Government on all of Part I, and certainly do not agree with some of the amendments tabled by the Opposition on Part II. Nevertheless a major problem arises which I wish to flag in moving Amendment No. 314.
  For the convenience of the Committee I should say that Amendment No. 316 is consequential and I shall therefore not bother with that. This is not an amendment for Division; it is a probing amendment to discover the views of the Committee on a matter of serious interest. Perhaps I should say also that I speak as somebody who has a house in mid-Wales and is vice-president of the Campaign for the Protection of Rural Wales.
  Having said that, perhaps I can turn to the problem which my amendment addresses. The history to this matter is the problem of off-road driving by 4x4s—I am sure Members of the Committee understand that expression—and motorcycles. I shall return to this when we come to Schedule 7 and common land, as the noble Baroness, Lady Byford, will appreciate. But I
  44
  am sorry that the noble Baroness did not agree to group her Amendment No. 360A, which roughly covers the same territory, with this amendment. I shall go briefly through the history because I do not want to detain the Committee.
  It was clear from the Road Traffic Act 1988 that it was an offence to drive a motor vehicle on any footpath or bridleway. It was equally clear that, thanks to the Wildlife and Countryside Act 1981, roads used as public paths (RUPPs) should be reclassified in the definitive manner as either,
  "byways open to all traffic",
  or as a bridleway or footpath. There was some confusion as to what "RUPP" meant. The Stevens judgment, followed by a further court judgment, led to the conclusion that "RUPPs" in practice are the same as bridleways. But the status of a RUPP does not mean that there are any additional rights beyond rights on foot and horseback.
  What of the application of the law? Two problems arise. First, the magistrates have not enforced the law on bridleways on the ground that the prosecution of motorists or motorcycles driving on bridleways could not be sustained there was no "reasonable doubt" that there were no carriageway rights on the bridleway in question, whatever the definition might say. The Grimsell Lane case is the locus classicus on this and the magistrate in that case stated that the definitive map was not definitive. So nobody knows quite how the restriction of bridleways on a definitive map should be enforced. Some people say it should be the courts; some say it should be the Lord Chancellor; we simply do not know.
  The second problem is that we now have RUPPs turned into restricted bridleways. But if bridleways are not protected by any reasonable judgment by the court, how can restricted bridleways, as defined in the Bill, be sustained? The failure of the courts to enforce what seem in the law to be clearly bridleways spills over into what appears to be the law in the Bill on restricted bridleways. Either they are or are not bridleways. I do not quite understand what the Government are aiming at.
  The effect of this confusion, speaking from the Welsh perspective—I am sure the noble Earl, Lord Peel, will be able to enlarge on the English perspective—is that people do not know who is allowed to drive on what. It is not to be thought that this is a frivolous issue in the Welsh uplands in mid-Wales where I have a home. If the Government are not prepared to produce something rather better, then we have a case that we may wish to pursue. Nothing is worse than having confusion in the law, people not knowing where they stand and how we can control motorcycles and 4x4s driving across byways and so forth. Until the law is precise on this matter, there will be continuing debate. In that context, I hope that my noble friend will produce a constructive reply. I beg to move.
  5.15 p.m.
  Earl Peel: I support the noble Lord, Lord Williams of Elvel, and I added my name to the amendment. The noble Lord certainly represents, as he put it, a "new cast" on the Bill. But it is nice that a representative of the cast of Part I is also still here to add weight, I hope, to the arguments of the noble Lord on this amendment. There is no question of doubt. This is a serious issue and I can assure the Committee that it is just as serious in England as it is in Wales. I should therefore like to put my points in a slightly different way.
  The Government's proposals in Clause 44 make an important advance in government policy. For the first time in the law relating to the definition of rights of way a clear distinction has been drawn between horse-drawn vehicles and other vehicles (or "mechanically propelled vehicles" as Clause 44 terms them). However, the value of that distinction is sorely limited by subsection (5) of Clause 44, as the noble Lord, Lord Williams, suggested, which provides for the reclassification of roads used as "RUPPs" as "restricted byways", without prejudice to any question of whether or not rights of way for mechanically propelled vehicles exist on them.
  The failure to exclude vehicular rights over restricted byways means that there will continue to be uncertainty as to their exact status. The Government have continually expressed their desire to improve certainty about public rights of access, but fall short of their aspirations in this Bill. Moreover, the possibility that restricted byways could at any time in the future be upgraded to byways open to all traffic—that is, BOATs—t hereby confirming that they can be used by four-wheel drive vehicles or any other vehicle is a cause for real concern.
  It is true that for many years landowners, conservationists and parish councillors have expressed concern at attempts to establish vehicular rights of way over routes recorded on definitive maps as bridleways or as roads used as public paths. The claims have often involved arguing that the routes should be reclassified as BOATs on the basis that at some dim and distant time in the past they may have been used by horsedrawn vehicles—a somewhat spurious argument, I suggest.
  The concern arises not so much as regards the reclassifications but the possibility that, once reclassified, increasing use will be made of BOATs by motor vehicles, especially four-wheel drive vehicles and motor cycles. Those concerned fear the consequent loss of amenity to wildlife on these ways and there is clear evidence that that is happening in many parts of Great Britain. Of course, those ways become most unsightly, too. The people concerned know only too well that some irresponsible motor vehicle users like nothing better than to get vehicles bogged down in ruts so that they can winch themselves out. I am sure that it is a sport of great amusement! I have been in that position on a number of occasions—not deliberately—and know that it is a messy business.
  46
  It requires winching out using trees and gateposts, which are then damaged. The arguments speak for themselves.
  The end result of such abuse of public right—and it is just that—may be a BOAT which is impassable to all other legitimate users of the way, including walkers, cyclists, those in horsedrawn vehicles and land managers who use such ways to access their fields. Abuse of rights of access by a minority will have led to the complete loss of rights for everyone. Highway authorities may incur huge bills in repairing such ways to make them passable to all classes of user.
  It is important that the creation of restricted byways under the Bill is reviewed in that wider context. By failing to exclude the possibility that the restricted byways could at some time in the future be upgraded to BOATs, the Government are keeping open the possibility that tens of thousands of miles of footpath could be subjected to abuse by vehicle users. I hope I have shown that the consequences include damage to the ways and denial of rights to others.
  All those negative consequences could be avoided if the Bill were to make clear that any public rights for vehicles over restricted byways, over and above rights for horsedrawn carriages, were extinguished when the reclassification came into effect. Deleting subsection (5), as proposed in the amendment, would help but I suggest that it might be necessary to go even further to make it clear beyond doubt that restricted byways do not carry public rights of way for vehicles other than horsedrawn carriages.
  I appreciate that some will argue that excluding the possibility of upgrading restricted byways to BOATs will mean that public rights of vehicular access will be lost on some of the ways. However, I believe that that loss needs to be balanced against the potential damage and costs arising from such ways if irresponsible vehicle users are able to gain rights of access to them.
  There is also the fundamental argument, which I believe, that it is crazy to assert on the basis of historical evidence of use by horsedrawn carts and carriages that a right of way should be open to all vehicles without distinction. Now that the Government have taken the bold step—and it is a bold step—of distinguishing between horsedrawn vehicles and mechanically propelled vehicles, they should allow the change by denying mechanically propelled vehicles the right to use ways which when created can only ever have been intended for horsedrawn vehicles. That is the main part of my argument.
  I hope that the Government will look seriously at the proposal. It is a serious problem which is likely to become worse. It will need tough action if we are to ensure that many bridleways are not further destroyed.
  Lord Northbourne: As a walker, I want to confirm my extreme concern about the points raised by the noble Lord, Lord Williams. Bridleways and footpaths

  47
  are incompatible with four-wheel vehicles and motor cycles. If footpaths are used by vehicles they lose their value entirely as regards walkers.
  Baroness Thomas of Walliswood: We on these Benches are sympathetic to many of the ideas which have been put forward by the noble Lord, Lord Williams, and the noble Earl, Lord Peel. Clarity is of the utmost importance when dealing with footpaths, bridleways and BOATs. Anyone involved in local government will know that a great deal of time can be spent arguing about them.
  As was said by the noble Earl, Lord Peel, in some ways the Bill is an improvement on the current situation, but the intention must be crystal clear. Otherwise, local government will be bogged down for years dealing with cases brought under the Act.
  Secondly, we all sympathise with the difficulties expressed by various people in keeping four-wheel vehicles off byways. I, too, have experience of the delight which drivers of such vehicles take in reducing paths which are also open to horses to a quagmire. Riders cannot use them because they do not know the depth of the puddles and ruts. Those paths must then be repaired at the expense of the local authorities.
  This is not a small issue—it has wide repercussions—and I hope that the Government will use the Bill to make their views plain.
  The Lord Bishop of Hereford: I support what has been said by the noble Lord, Lord Williams, and the noble Earl, Lord Peel. Although I support the amendment, I agree that it does not go far enough. We need the extinguishing of any vehicular rights which could be used for mechanically propelled vehicles. We have had great problems with such vehicles in north Herefordshire where much damage and noise pollution have been caused. They have made the restricted byways, as they will become, unusable to those for whom they were intended.
  I believed that the Government's intention behind the Bill was to achieve what has been proposed but I am not sure that the current provisions are adequate.
  Lord Williamson of Horton: I am not sure whether the problem under discussion arises with this or Amendment No. 448A but we must recognise its importance and do what we can in the Bill to correct it. The current problem is simple; it was shown by the Grimsell Lane case and by a later case. The prosecution, who saw vehicles on bridleways, was unable to gain a decision in court because the defence raised doubts about whether there was a previous right to vehicular access. The prosecution could not prove a negative, which resulted in the magistrate stating:
  "Dismissal of the charges does not in any sense establish that the route does indeed have vehicular rights. The question remains as open now as it was at the start of the case".
  Vehicles continued to drive over the bridleway and probably still do.
  48
  We must return to the issue during our debates on the Bill because the current law is an ass: people are driving four-wheel-drive vehicles on bridleways and nothing is being done about it. A number of such incidents are catalogued in the Derbyshire cases and others.
  I do not know whether the issue arises under this or a later amendment when we must decide whether we remain satisfied with the words,
  "prima facie evidence is adduced".
  However, we should not produce a result which is the exact opposite of what most people would consider reasonable, which is what we are doing.
  5.30 p.m.
  The Earl of Caithness: I support the arguments put forward by the noble Lord, Lord Williams, and my noble friend Lord Peel and do not repeat them. However, I invite the Minister's comment on the detail of Clause 44(5) in which the expression "animals of any description" is used. In Part I of the Bill one has a definition of "livestock" which appears in the Dogs (Protection of Livestock) Act 1953. Can the Minister explain why there are two definitions in the same Bill?
  Baroness Byford: I also support the amendment moved by the noble Lord, Lord Williams of Elvel. I hope that when I come to speak to my amendment it will be clear why I have decided to split the two. The problem of four-by-fours, particularly on roads and pathways which were never intended for this purpose, is huge. Perhaps like other Members of the Committee, I have received correspondence from many groups and individuals who are concerned about a situation which this amendment attempts to clarify. It is not simply a matter of people not understanding what they can drive and where, but when they drive in areas where it would be much better not to drive they may at the same time spook horses and their riders and cause injury to both.
  It is not a simple matter of saying that ideally the problem should be solved by x. I do not believe that the Government have fully addressed the difficulty. When the Minister responds perhaps he will indicate why local authorities have not responded to the problem more readily. I understand that as the law now stands local authorities can do more to control what goes on highways and footpaths, but action is not being taken. Can the Minister say whether there is evidence of that and, if so, why local authorities do not do more?
  I declare an interest as a walker and former rider on certain footpaths and bridleways in the countryside. As other Members of the Committee have observed, it is difficult to decide whether to continue or to return to where one started. People tend to digress a little. Therefore, the pathway remains boggy and the local authority, whose responsibility it is to put it right, must deal not only with that but the extra area of land round about. Similarly, when a narrow pathway across a field becomes boggy, not by the use of four-by-fours but by general overuse, there is tendency—of which I am

  49
  guilty—to continue but digress a little. People may make a slight detour in a farmer's field and at certain times of the year the corn is damaged.
  No one has yet spoken up for those who drive four-by-fours or participate in this particular sport, which is not one of mine. They would be helped if the position is clarified. They are well aware that the Committee is considering this Bill and are concerned about the outcome from their point of view. It is not just a matter of seeking to resolve the problem but of clarifying the position for those who experience difficulties by the use of four-by-fours and those who participate in the sport and wish to know the outcome.
  Lord Williams of Elvel: I wonder whether the Committee is to have a contribution from the Liberal Democrat Front Bench before my noble friend replies.
  Baroness Miller of Chilthorne Domer: I thank the noble Lord, Lord Williams of Elvel, for inviting a comment from this Bench. I did not comment because I believed that the case had already been eloquently put by my noble friend Lady Thomas. My noble friend said that she spoke for both herself and the Liberal Democrats. We agree with the spirit behind the amendment, the point about bridleways and byways which are made unusable by the unreasonable use of four-by-fours and the need for clarification. My silence does not indicate that the Liberal Democrats do not support the amendment but that my noble friend puts the case well.
  Lord Bridges: I do not generally seek to raise the temperature of our reasoned debates, but on this occasion I feel inclined to do so. I regard the present situation as insupportable and monstrous for the reasons already explained eloquently by others. The noble Baroness, Lady Byford, asked why local authorities had not done more. In my experience, the answer is simple: they do not have the resources to do so. I hope that the Government will use their influence to ensure that more money reaches local authorities to enable them to fulfil their responsibilities.
  Another reason for what is wrong is that the law is an ass. For example, it is extraordinary that we have for so long allowed four-wheel drive vehicles to destroy the footpath by the Berkshire Downs. The Bill provides an opportunity to rectify this terrible situation, and I support the amendment.
  The Lord Bishop of Hereford: Perhaps I may respond to the noble Baroness, Lady Byford. I pay tribute to Herefordshire Council. It has tried to take action over one particularly notorious case but it faces bitter, well financed and hard-fought opposition from motoring organisations. As the law now stands it is hardly surprising that local authorities are not keen to do it, but some try. As to the proper use of four-by-four vehicles, a private estate in Herefordshire has been used for the testing and demonstration of Land
  50
  Rovers. People have had great fun, and it has been good for the industry. However, that takes place on private land and, happily, is the subject of agreement.
  Lord Whitty: I appreciate the widespread concern in the Committee, and also the country, about this issue. The specific intent of the two amendments is to extinguish any motorised vehicular public rights over redesignated RUPPs. I am advised that there is doubt as to whether these amendments would achieve that.
  Lord Williams of Elvel: To say that a proposed amendment is out of order, or whatever, is a well known technique used by Ministers. I deliberately said that this is a probing amendment. Can my noble friend skip the first paragraph of his brief and get on with the business?
  Lord Whitty: No. The intention of the amendment is to extinguish rights. However, it does not say how one is to deal with pre-existing rights. We believe that that should be addressed in this context; and we may need to deal with it at some point in the Bill. If one accepts that the intention is to extinguish those rights, clearly the question is whether the public should be able to continue to drive motor vehicles on a RUPP where there are at present vehicular rights. That raises some difficult questions.
  There is a good deal of concern about the number of motor vehicles being used inappropriately in the countryside, not only in mid-Wales. I experience it in the South West. I am sure that other Members of the Committee have experience of the problem of motorcycles and four-by-fours in other parts of the country, whenever they have time to stroll in the countryside at weekends. It is not the policy of the Government to seek to allow an extension of that activity but to restrict the inappropriate use of vehicles in that respect.
  If one jumps to Clause 62, that extends the power of a local authority to make traffic regulation orders, for example to deal with conservation. That should be an additional tool in the armoury against unsuitable and damaging vehicular use and may in part give additional powers, for example to Herefordshire Council, to ensure that it can move more rapidly and substantively. We are also aware of difficulties in prosecuting offences. We shall debate amendments to strengthen the provisions when we come to Section 34 of the Road Traffic Act 1988 in Schedule 7. We are sympathetic to the objectives of the amendments to Schedule 7 and accept that there is a very good case for further strengthening Section 34. We hope to table amendments at Report stage in that area.
  As to these two amendments, the purpose of introducing a new category of highway in place of RUPPs is two-fold.
  Lord Williams of Elvel: My noble friend said that he was in favour of strengthening Section 34 of the Act. Can he indicate in what direction he intends to strengthen those powers by government amendments?
  Lord Whitty: The provisions of Section 34 relate to presumption and the degree to which the presumption

  51
  of pre-existing rights is perhaps loaded too heavily towards those who are claiming pre-existing rights. We are looking at ways to rebalance that in terms of those who wish to protect these bridleways and byways from vehicular traffic.
  The original intention of changing the definition under the Bill was to give more certainty for walkers, horse riders and cyclists than the present legislation provides. It was also to reduce the amount of bureaucracy by relieving local authorities of their current duty to review the status of each RUPP individually and reclassify it is a footpath, bridleway or byway open to all traffic.
  In the case of vehicles using these roads and claiming a pre-existing right the certainty is not absolute. Presumably my noble friend Lord Williams and the noble Earl, Lord Peel, hope that their amendment will make that clearer.But there would be a price. The Government have stated throughout the Bill that they do not wish to reduce existing rights to access. A blanket extinguishment of all public rights of way to drive mechanically propelled vehicles over RUPPs would interfere with that general commitment. We do not know how many RUPPs carry such rights, but certainly many do, both in terms of access to property and more generally. We do not know how important these rights are to local people and to visitors.
  In due course, historic vehicular rights which exist over ways shown as restricted byways on definitive maps but which have to have been claimed will be extinguished under Clause 49 of the Bill after the 25-year cut-off date. That will provide time to research the evidence. In the mean time, we believe that people who have evidence of pre-existing vehicular rights should be able to claim them. As I have said in relation to amendments which may be forthcoming to Schedule 7, the balance of probability has to be addressed. That is simply claiming the right; it should not be actual proof of that right. In the case where a person does have proof of vehicular right, he is entitled to have, for example, a bridleway upgraded.
  However, the Government are certainly not in the business of actively promoting motorised use of RUPPs however they are classified in the future. There is plenty of evidence that motorised vehicles and motor cycles damage the countryside and do damage to the ways. We need to give traffic authorities more powers to regulate that. We are actively looking at the case for so doing.
  My noble friend Lord Williams explicitly referred to the case of Grimsell Lane. We shall be debating those amendments when we reach Schedule 7 and will respond positively to the amendments tabled.
  The noble Earl, Lord Caithness, referred to the reference to animals in Clause 44. He is quite correct. The definition there is somewhat different from the definition of "livestock". It effectively reflects the rights of drovers. That is the definition that is used in the Wildlife and Countryside Act 1981—to protect the rights of driftway, as it is known. That is a somewhat different right and concerns a different range of
  52
  animals from the normal definition of livestock. I hope that I have clarified the position. It is a negative clause rather than a positive one at that point within the Bill.
  This is a difficult and somewhat complex issue. It is a conflict between trying to preserve existing rights of access—preserving the rights for people to access their homes and property—and the desecration of the countryside and the damaging effect caused to many byways by four-by-fours and motor cycles which interfere with the pleasure and the rights of enjoyment to these rights of way of many hundreds of walkers and horse riders up and down the country. We think that the balance is better struck later on in the Bill. Therefore, I hope that my noble friend Lord Williams and the other supporters of the amendment will not press it at this point.
  5.45 p.m.
  Earl Peel: The noble Lord said earlier that under the Bill additional powers had been given to local authorities to deal with road traffic incidents. The difficulty is that in so many of these cases it is actually very difficult to catch the individuals concerned. One can give the local authorities all the power in the world, but it will not actually achieve what most of us have spoken to and what the amendment seeks. The difficulty arises particularly with motorbikes. Many of those chaps know exactly where they are going and exactly what they are doing. They know they will not get caught because the police apparently will not get involved. If one wants to get the number plate off one of these vehicles, it is almost impossible because it is caked in mud. However one looks at the matter, powers are one issue, but how they will be used is quite another. Perhaps the Minister would address that matter.
  Lord Whitty: That is undoubtedly true. But it would also be true if we were to pass the intention of the amendments. If we simply designated all redesignated RUPPs as closed to vehicular traffic it would still be an enforcement problem. Later on in the Bill in relation to Clause 62 there is an extension of the powers of local authorities to control, identify, sign and restrict access. That may involve some physical restriction of access which they do not at present have. The question of catching them is difficult whichever route one takes in trying to reduce this menace.
  Lord Williams of Elvel: I am most grateful to my noble friend for responding fully to the points I made and indeed the points made by the noble Earl, Lord Peel, and others in the debate. I am grateful to others who have taken part.
  I am sure my noble friend recognises that this is a really important issue in Wales, where I have a home, and, as the noble Earl, Lord Peel, said, in parts of England. It is not something that can be rushed away. We have to look to see what the Government produce before—I hope I can speak for the noble Earl—we both consider what amendments we might produce at the next stage of the Bill.

  53
  I can assure my noble friend that if the noble Earl, Lord Peel, and I agree on amendments to the Bill on Report, he will have a difficult time defending the Government's position. It is a matter that they have to take seriously. I hope that my own Whips are taking my remarks seriously. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 315:
  Page 27, line 14, leave out from first ("way") to end of line 15 and insert (", in addition to restricted byway rights, a right of way for mechanically propelled vehicles or any other right.").
  The noble Lord said: I beg to move.
  Baroness Byford: I wish to raise a technical point. The phrase "mechanically propelled" has concerned me. I know the Government are anxious that disabled people should have access to the countryside. I am concerned whether long-term the phrase "mechanically propelled" is the right terminology to use. I have not been able to find another word which is any better. It struck me that perhaps "mechanically propelled" will include some vehicles which it is not the Government's intention to include.
  Lord McIntosh of Haringey: The noble Baroness raises a point that arises from the wording inserted by Amendment No. 315. She will find that the same wording—"mechanically propelled"—has been deleted. So there is no additional use of the words "mechanically propelled". However, I shall certainly find an opportunity as soon as I can to address her concern about the use of the phrase "mechanically propelled vehicles".
  On Question, amendment agreed to.
  [Amendment No. 316 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 317:
  Page 27, line 19, leave out from ("authority") to ("shall") in line 20.
  On Question, amendment agreed to.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 318:
  Page 27, line 23, leave out ("(3)") and insert ("(4)").
  The noble Baroness said: With the permission of the Committee, I shall speak to the other government amendments in the group now and respond to the other amendments in the group after other noble Lords have spoken. In moving Amendment No. 318, I shall speak also to Amendments Nos. 554,557 and 560 to 562.
  These amendments all relate to the commencement of Part II of the Bill. Amendment No. 318 to Clause 44 and Amendments Nos. 560 and 561 to Clause 77 are consequential on Amendment No. 557, the effect of which would be to give the National Assembly for Wales the power to make orders bringing Part II into effect in relation to Wales. Under the Bill as it currently stands, only the
  54
  Secretary of State has the power to make commencement orders relating to Part II After discussion with the Assembly, the Government have accepted that the Assembly should have the power so far as concerns Wales.
  Amendment No. 554 to Clause 77 deals with a different commencement issue. As the Bill is currently drafted, none of the provisions in Part II takes effect automatically two months after enactment. All depend on commencement orders being made. The reason for this is that implementation of many of the provisions depend on secondary legislation or statutory guidance being in place. That takes time to prepare and, where necessary, to be approved by Parliament. However, a number of provisions are not so dependent. They are Clauses 48, 54, 55, 60, 61, 62 and 63 and Schedule 7. We have concluded that commencement of those need not wait for orders to be made and Amendment No. 554 makes provision for them to take effect automatically two months after enactment.
  Amendment No. 562 to Clause 78 relates to Clause 77(5). This latter provision already provides that commencement orders may appoint different days for different areas. Amendment No. 562 would provide clarity so that where a commencement date is fixed for one area "the commencement date" means that date in relation to that area and is not interpreted as meaning, for example, any earlier date that has been fixed for another area. That is to avoid ambiguity.
  My noble friend skilfully anticipated the Government's intentions in respect of Clause 63 and Schedule 7. I hope that he will be willing not to press his amendments. In answer to his comment on an earlier amendment, I should like to place it on record that I for one, as a Government Whip, always listen carefully to everything said in debate by Members of your Lordships' House. I beg to move.
  Lord Renton: Perhaps the Minister will be so helpful as to explain one small point. Amendment No. 562 refers to "that area". What area is contemplated? I have glanced at earlier provisions of the Bill to see whether there is a definition of "area", but I have not yet found one. Can the noble Baroness help me on that point?
  Baroness Farrington of Ribbleton: To the best of my understanding, it is that area which is defined in order for the commencement to proceed. It will be defined by the access authority in terms of an appropriate division of the land. It is also particularly important with regard to the fast-track that may affect part of the geographical area and not other parts of the same geographical area or ownership of land. In other words, it is the area to which the commencement order applies.
  Lord Renton: In each case the area will be described, but there is no general definition of an area in the Bill.
  Baroness Farrington of Ribbleton: It will be the area to which the provisions of the Bill would apply. That is restricted by its very nature. Within that area it

  55
  would be discrete and described parts of the area, particularly if there were to be a fast-track process which would apply to certain parts of the total area but not to others. If I have not made that clear to the noble Lord, the fault will be entirely mine. I shall, of course, write to him if he would find that helpful.
  Lord Jopling: I have not been able to find in the Bill some of the matters which arise from the remarks of the noble Baroness a few moments ago. She said that it would be possible to have different commencement dates for different areas. She then said that the areas would be discrete. I should have thought that on different sides of a hill from a watershed one could have two different dates for two different adjoining pieces of land. I can see the sense of having that. She said that that was to avoid ambiguity. If two adjoining pieces of land or two separate pieces of land across a valley or a dale had different commencement dates, that could give rise to a certain degree of confusion. Do the Government accept that there could be a certain amount of confusion in the minds of the public who have not been through the Bill? They may have heard that there is one commencement date and imagine that that commencement date would apply to all the land in the area. How much notice of the commencement date will be given? What will the access authority do to publicise the commencement date? Will the date always be put in the local paper?
  These are important matters. Until the noble Baroness spoke a few moments ago, I had imagined that the commencement dates would be the same for all areas. I can envisage people not understanding what she said, although I can understand the good sense of having the different commencement dates. It would be helpful if the noble Baroness could clarify that point.
  6 p.m.
  Baroness Farrington of Ribbleton: My noble friend Lord Williams of Elvel chided—I think rather gently—the Liberal Democrat Front Bench for not joining in the debate. Had all noble Lords been present for the whole of the previous part of the discussion—including very lengthy talks on the subjects of publicity and the process of such publicity—I believe that my noble friend might have been slightly more timid about provoking even more noble Lords to speak.
  For the record, I should like to say that we held extremely detailed and lengthy debates on the process of publicity, and consultation on the means of publicity and the importance of that kind of process because it is necessary that the public should understand exactly what will apply to different areas. The publicity would surround and be a part of the process of producing a commencement order and would further define the area to which the commencement order applied. I am sure that the noble Lord is aware that, as a result of taking into account the real concerns expressed by those responsible for land management, many occasions will arise when different rules and restrictions will apply in different
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  parts of the same area. That is because environment and land management requirements need to be taken into account. For that reason, the process of giving publicity to the detail as well as to the general provisions of the Bill is one that the Government fully recognise. I believe that those matters and the concerns expressed about them have been met in full today.
  Lord Glentoran: I thank the noble Baroness for putting forward her explanations and arguments and I have no wish to return to many of the debates that we have held previously. However, perhaps the noble Baroness could give me some reassurance on one or two points. I understand that the fast track process is by no means set in stone and that the Government will come forward with their thoughts and suggestions at a later stage.
  Perhaps I may return to a point that was raised earlier today; namely, the question of strategic plans forming a part of the process of ensuring that there is clear understanding. I am concerned that, on the day the Bill is passed and given Royal Assent, the world outside will believe that access is there for all. Can the noble Baroness give a reassurance—I shall give way to the noble Lord.
  Lord McIntosh of Haringey: The last two interventions from the Conservative Benches have concerned Part I of the Bill. This has nothing to do with fast track procedures, mountain land or registered common land. This concerns the provisions covering the commencement of rights of way.
  Lord Glentoran: I understand that, but I hope that the strategic plans, which will explain how the system is to work, will be put in place and will be helpful.
  Baroness Miller of Chilthorne Domer: In case the position of the Liberal Democrat Front Bench is again misinterpreted, I should like to put on record the fact that we have remained silent at this point because we spoke at length on these issues when speaking to other amendments. Indeed, the Minister was kind enough to point that out. I do not wish to take up the time of the Committee by repeating myself.
  Baroness Farrington of Ribbleton: On behalf of the Government, perhaps I may welcome that sentiment wholeheartedly.
  On Question, amendment agreed to.
  Lord Whitty Lord Whitty moved Amendment No. 319:
  Page 27, line 36, leave out subsection (9).
  On Question, amendment agreed to.
  Clause 44, as amended, agreed to.
  Clause 45 [Provisions supplementary to ss. 43 and 44]:
  Lord Whitty Lord Whitty moved Amendment No. 320:
  Page 27, line 39, leave out from ("have") to ("shall") in line 40 and insert ("a right of way for mechanically propelled vehicles or any other right)").
  On Question, amendment agreed to.
  Clause 45, as amended, agreed to.
  Clauses 46 and 47 agreed to.
  Schedule 5 [Definitive maps and statements and restricted byways]:
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 321:
  Page 53, line 44, leave out from beginning to end of line I on page 54 and insert ("that the public have, and had immediately before the commencement of section 43 of the Countryside and Rights of Way Act 2000, a right of way for vehicular and all other kinds of traffic over that way.").
  The noble Lord said: Amendment No. 321 amends Schedule 5 which relates to applications to have ways shown as restricted byways on definitive maps upgraded to a byway open to all traffic on the basis that full vehicular rights existed over the way in question. Before I move on from the matter of vehicular rights, perhaps I may say to the noble Baroness, Lady Byford—although she is not in her place I should like to make this comment for the record—that disabled carriages are expressly excluded from the definition of mechanically propelled vehicles in Section 34 of the Road Traffic Act 1988, covered in Schedule 7 to this Bill.
  Schedule 5 amends Section 53 of the Wildlife and Countryside Act 1981 to enable such applications to be made; namely, applications to enable a restricted byway to be upgraded to a byway open to all traffic. However, as the Bill is currently drafted, it would be possible to apply on the basis of evidence that vehicular rights existed at any point in the past, even if such rights had been extinguished, provided that there was some public right of way over such ways. The amendment would ensure that this could not happen by requiring evidence that rights of way for vehicular and all other types of traffic existed immediately before the way was redesignated as a restricted byway and that the public continue to have such rights. I beg to move.
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 322:
  Page 55, line 24, at end insert (", and
  (ii) if an order is made, a decision has been made to confirm or not to confirm the order,").
  The noble Lord said: In speaking to Amendment No. 322, perhaps I may speak also to Amendments Nos. 323 to 333 and 548. These amendments all relate to definitive maps. These are the legal record of rights of way which provide conclusive evidence of the public rights of way over each highway which is shown on them. I shall deal first with the more substantial amendments.
  Amendment No. 328 relates to the existing requirement for local authorities to keep their definitive maps on display to the public. After the cut-off date in Clause 52, certain rights of way which have not been recorded will be extinguished. The intention is that as much of the historic record as possible should be recorded, but disputes might arise after the cut-off date as to whether a particular right of way has been
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  extinguished. We therefore consider it prudent to ensure that local authorities keep and make available to the public and other local authorities relevant documents about the status of rights of way at the cut-off date. Amendment No. 328 would give the Secretary of State or the National Assembly for Wales a power to make regulations for this purpose.
  Amendment No. 333 aims to speed up the process of modifying definitive maps. First, it would enable the Secretary of State or the National Assembly for Wales, when directing a local authority to make an order on appeal under current legislation, to specify a deadline by which the order should be made. The current powers of direction do not allow a time period to be specified.
  Secondly, the amendment would allow, in relation to hearings into disputed modification and reclassification orders, costs orders to be made and for witnesses to be summonsed. Currently, this can be done only in relation to inquiries. Hearings are less formal than inquiries and more suitable for some cases.
  Thirdly, the amendment would enable the inspector holding an inquiry or a hearing to award costs. Currently, only the Secretary of State or the National Assembly for Wales may do so. This amendment is consistent with other provisions set out in Parts I, II and III of the Bill.
  Finally, the amendment would enable costs to be awarded if an inquiry does not take place; for example, if one of the parties fails to turn up without good reason. Amendment No. 548 is consequential.
  The remaining amendments are fairly technical. Amendment No. 322 concerns the requirement in Schedule 5 for local authorities to keep a register of applications for definitive map orders. The amendment would clarify the circumstances in which applications which have been dealt with are to be removed from the register.
  Amendments Nos. 323 to 325 arise from Clause 43, under which roads used as public paths are to he treated as restricted byways. It may he that a RUPP has been diverted, stopped up or otherwise changed without an order modifying the definitive map having been made. The amendment would ensure that the conclusive effect of the map was subject to whatever legal changes had been made to the RUPP concerned prior to commencement and would be consistent with the approach adopted in Clause 44(2). It is designed to prevent a potential conflict arising between the map being conclusive of certain rights and the creation of restricted byway rights being subject, for example, to a diversion order.
  Amendments Nos. 326 and 327 relate to provisions which enable local authorities to update their definitive maps to take account of accumulated orders. The amendments would prevent authorities producing new maps if they have failed in their duty to make orders modifying them. However, they would be able to make new maps if they have not reclassified all their RUPPs.
  Finally, Amendments Nos. 329 to 332 relate to the new power in Schedule 5, which enables local authorities to consolidate their definitive maps to incorporate any parts of maps inherited from other authorities following local authority boundary changes. The amendments would clarify the intention that maps may not be consolidated if any orders required to record changes made to an authority's rights of way are outstanding. They would ensure that local authorities would be required to keep a copy of the superseded maps on display to the public. I beg to move.
  Lord Renton: These somewhat technical amendments are important. They amplify and put into operation Clause 47—the shortest clause in the Bill, although an important one—which relates to the creation of the maps. Can the Minister explain what will be the net result of the amendments on the whole process of creating the maps, which could take years? On the other hand, if there is not much dispute, it could be done reasonably quickly.
  A lot of painstaking effort and detail will be necessary. It would be helpful if the Minister could give some idea of the effect these amendments will have on the time or range of times—six months, six years; the longest time, the shortest time—that the process will take.
  6.15 p.m.
  Baroness Miller of Chilthorne Domer: These are so-called "technical amendments" which seek to improve the mapping process but which, in some ways, repeat the difficulties of the historical mapping process. For example, currently a large amount of money is being spent on the provision of cycle ways, and yet they are omitted from the process. I understand that it is intended to improve on the historical record, nevertheless cycle ways continue to be left very much in no man's land in the Bill. They are not on any record; they are not recognised as part of the process—and yet better provision for cyclists and equestrians was the first bullet point in the DETR's strategy for improving the rights of way network.
  Although more money is rightly going into the creation of cycle ways, the way that they relate to the rest of the network is not defined. The Government have not been ambitious in trying to develop a mapping process which is all encompassing; it is still rather retrospective.
  Lord McIntosh of Haringey: How long this will take is a very important and very difficult issue. The noble Lord, Lord Renton, will know that we are talking about the longest date being the cut-off date in Clause 52, which is 1st January 2026—in other words, 25 years from the presumed Royal Assent.
  The amendments seek to remove some of the obstacles to delay within that period. But, as they are different amendments, I could not possibly give a single answer about the range of amendments in this
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  group. That is not because we have not thought about it but because the procedures are not directly aimed at reducing the time taken. The hope is that they may do so by increasing the powers to award costs and by deterring frivolous objections and claims—that is important—but, because this is not the prime objective of the amendments, I cannot put a figure in terms of time on the savings that may be made.
  As regards the noble Baroness's point about cycle tracks, they are expressly created and there should be no doubt about where they are. Definitive maps record rights of way which would otherwise be in doubt. My understanding is that cycle tracks are indicative in the sense that they advise that cyclists can, for various reasons and various purposes, go from A to B on a route without in any way changing or defining rights of way. They are not in themselves indicative of any change in a right of way or of what the right of way is. A cycle track, for example, could be partly on a restricted by-way and move seamlessly to being on a highway. The idea is to create a useful route rather than to define a right of way. That is the reason why cycle tracks are not included in the rights of way part of the Bill. We are not saying that we are not keen on cycle ways, as the noble Baroness, Lady Miller, made clear.
  Lord Renton: I think the Minister referred to Clause 52 in his reply. Is that right?
  Lord McIntosh of Haringey: Yes.
  Lord Renton: Clause 52 does not refer to Clause 47 and the creation of the definitive maps; it refers to Clauses 49 and 51. Clause 49 deals with the extinguishment of unrecorded rights of way and Clause 51 deals with bridleway rights over ways shown as bridleways. With great respect, neither of those clauses—nor, therefore, Clause 52—has anything to do with the time likely to be taken in creating the maps.
  If I may say so, the noble Lord—as always—has taken a lot of trouble to master what he has to explain to the Committee, but I am rather surprised that no estimate has been made, either by Ministers or by officials, of the likely minimum and maximum periods for the creation of these maps.
  It is very important. The Ramblers' Association and the landowners will be affected by it. The Ramblers' Association could be very disappointed if it takes too long.
  Lord McIntosh of Haringey: My reference to the cutoff date in Clause 52 was simply that it was the cut-off date for extinguishment. The extinguishment process can take place only when all the other procedures, including those in Clause 47, have been completed.
  The reason why we cannot give a minimum or a maximum is simple. A large part of the procedures are outwith the hands of government or of local authorities. They arise because there are opportunities for people to make claims, for the hearings or inquiries to be held and for appeals to be made; and all those

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  depend on what other people do, not on what government do. That is, after all, the nature of our rule of law. I used the reference to Clause 62 merely to illustrate one of the needs for requiring local authorities to keep the documents available to the public.
  Before concluding my remarks, I should say that I may slightly have misled the noble Baroness, Lady Miller. A cycle track is a specific kind of right of way but one that has been created deliberately and is, therefore, almost certain to be well signed and well understood. It is a more recent invention. In the rest of this part of the Bill we are dealing with rights that have existed back into the mists of time. That is why they are so difficult to deal with.
  Lord Elton: Returning to the question asked by my noble friend Lord Renton, we have done something like this in the past, have we not? I remember that when I was chairman of a parish council in Leicestershire, some time between 1958 and 1961 we were required to record "purple routes" on the county map which was being drawn up as a statutory requirement so that there could be a national record of footpaths. Not without notice but at some point in the future, will the noble Lord let me know how long it took to complete that exercise—because I never heard of it being finished?
  Lord McIntosh of Haringey: I can certainly let the noble Lord know that. I shall write to him on the subject, with a copy to the noble Lord, Lord Renton. But of course there are worse examples than that. We had reference in Part I to the Law of Property Act 1925, which defined urban commons, gave certain rights over them and allowed for certain procedures in defining them and in defining the rights. Those procedures have still not been completed after 75 years!
  Lord Glentoran: Will the noble Lord give an assurance that, despite the many problems and trials and tribulations that there will be in putting these maps together, finance and money will not be one of them?
  Lord McIntosh of Haringey: I think I can give that assurance.
  On Question, amendment agreed to.
  Baroness Scott of Needham Market Baroness Scott of Needham Market moved Amendment No. 322A:
  Page 56, line 51, at end insert—
  ("Deletion of rights of way from definitive maps after the cut-off date.
  54B.—(1) No order under this Part shall, after the cut-off date, he made under section 53(3)(c)(iii) so as to modify a definitive map and statement by the deletion of any way shown in the map and statement as a highway of any description at the cut-off date.
  (2) In this section "the cut-off date" means, subject to regulations under subsection (3), 1st January 2026.
  (3) The Secretary of State may make regulations—
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  (a) substituting as the cut-off date later than the date specified in subsection (2) or for the time being substituted under this paragraph;

  (b) containing such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the operation of subsection (1), including in particular its operation in relation to—

  (i) an order under section 53(2) fin which on the cut-off date an application is pending,

  (ii) an order under this Part which on that date has been made but not confirmed,

  (iii) an order under this Part relating to any way as respects which such an order, or any provision of such an order, has after that date been to any extent quashed.

  (4) Regulations under subsection (3)(a)—

  (a) may specify different dates for different areas; but

  (b) may not specify a date later than 1st January 2031, except as respects an area within subsection (5).

  (5) An area is within this subsection if it is in—

  (a) the Isles of Scilly, or

  (b) an area which, at any time before the repeal by section 73 of this Act of sections 27 to 34 of the 1949 Act—

  (i) was excluded from the operation of those sections by virtue of any provision of the 1949 Act, or

  (ii) would have been so excluded but for a resolution having effect under section 35(2) of that Act.

  (6) Where by virtue of regulations under subsection (3) there are different cut-off dates for areas into which different parts of any way extend, the cut-off date in relation to that way is the later or latest of those dates.
  (7) Where it appears to the Secretary of State that any provision of this Part can by virtue of subsection (1) have no further application he may by order make such amendments or repeals in this Part as appear to him to be, in consequence, necessary or expedient.
  (8) An order or regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
  The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 357A which is grouped with it.
  Summing up in a right of way case, Lord Denning once said that nothing excites an Englishman so much as a footpath. I have always thought that his remark did not say much for English women and spoke volumes for English men.
  I was interested to hear the Minister say in his introductory remarks that Part II of the Bill was designed to modernise the rights of way system. Perhaps in his reply he will explain how.
  Amendment No. 322A addresses the issue of deletions from the definitive map. The situation at present is that any landowner can seek to delete a path on the grounds that that particular right of way was originally put on to the map in error. In practice, that means re-opening arguments which in some cases were thought to have been settled 40 or more years ago. The cases are very difficult because much of the original survey work has disappeared, as, sadly, have the people who carried it out. It is not uncommon to find protagonists arguing over fragments of parish council records in order to establish the claim. I am told that

  63
  that is becoming an increasingly frequent way of deleting paths from the definitive map. The Bill as drafted is silent on the question of such deletions. Our amendment seeks to remove that right of challenge after the cut-off date of 2026.
  There is a question of natural justice here. If user groups and local authorities are having to work hard to research and establish rights before the judgment day, it is only right that landowners should have the same period of time in which to show that they think that rights do not exist. The effect of the amendment would be to strengthen the conclusiveness of the definitive map—something which I believe we all seek to do.
  Amendment No. 357A addresses the issue of claims for new rights of way coming into existence between 1st January 1949 and the cut-off date of 2026 proposed in the Bill. Such a claim could come about as a result of showing a period of use during those years and then using either common law or the Highways Act 1980 to establish presumed dedication as a public right of way.
  In such a situation it is quite likely that objectors to any claim would argue that a particular route was being used as a right of way before 1949 and, therefore, under the provisions of this Bill was automatically extinguished. Bizarrely, we could see a complete reversal of the current roles. Into the future, landowners will be trying to show that there was use by the public as of right before 1949 and claimants will be trying to demonstrate that there was not.
  I am concerned anyway about the establishment of a cut-off date in order to extinguish old and possibly little used rights. But it is even worse to see this being used as a justification for extinguishing rights which demonstrably are being used.
  The walking public are in a "lose-lose" situation under the terms of the Bill. Ancient rights which are infrequently used precisely because they are not recorded will be lost for ever; and after the cut-off date routes which are in use but where perhaps there has been some question and it is lost in the mists of time could also be lost by the use of the cut-off provision.
  If this amendment is agreed to, routes with a record of use during the most recent three-quarters of a century would at least be judged on their merits and not be lost by default by use of the cut-off date. I beg to move.
  Lord McIntosh of Haringey: I have a horribly long answer to this amendment and I do not know how to cut it down and still do justice to the argument advanced by the noble Baroness, Lady Scott. Before I reply, perhaps I may respond to her initial challenge: how does the Bill clarify rights?
  There are probably 20 or 30 different answers, but the fundamental answer lies in the creation of restricted byway status, which I believe is clear and which subsumes a number of previous categories, none of which was clear or which was dependent on historical status rather than the present status. That is almost a subject for philosophical debate rather than
  64
  the consideration of individual amendments. I believe that the Bill in Part II not only seeks to achieve greater clarity but does in fact achieve it— although I am the first to confess that the wording does not encourage that view.
  A number of amendments have been tabled relating to the provisions for setting a cut-off date for the recording of certain rights of way and the extinguishment thereafter of any which are not recorded. What the noble Baroness, Lady Scott, is attempting to do—she calls it "natural justice"—is to provide a quid pro quo for the loss of any rights of way on the cut-off date by preventing any which have been recorded in error from being deleted. I hope I have got that right.
  Baroness Scott of Needham Market: I thank the Minister for giving way. What I am trying to establish is that someone who seeks to delete a path by reference to its use before 1949 would have to show beyond doubt that the public were not using it as of right and that there was an error.
  Lord McIntosh of Haringey: The purpose here is a change in the onus of the burden of proof. I am not sure that I fully understood that before, and I am not entirely sure that that is what the amendment says.
  Of course there is some attraction in the argument that if the public will be unable to submit evidence as to the existence of rights of way after the cut-off date, then there should also be a bar on applications seeking to remove rights of way. I note that Amendment No. 322A would apply only in respect of rights of way shown on a map at the cut-off date so that it would be possible to correct errors which arose after that date. I also note that it would apply to all rights of way, irrespective of when they were created, whereas the extinguishment provisions apply only to unrecorded footpaths and bridleways created before 1st January 1949 and to any unrecorded pre-1949 higher rights over ways which are shown on a map at the cut-off date. The amendment does not say anything about whether the highways can be downgraded or upgraded. The Bill also provides certain exceptions to the extinguishment rule, as the amendment does. The amendment therefore goes much wider than the provisions which it seeks to counterbalance.
  We have looked at the general principle behind the amendments and are not unsympathetic to it. However, there are a number of difficulties involved. We must remember that definitive maps do not create highways from scratch: they merely record what exists—whether it is the effect of an express creation, diversion or closure by statute or agreement, or by other means.
  Merely preventing the deletion of a right of way that has been recorded in error will not change the status of the land in question. If no highway exists but the map continues to show one, the only consequence will be a map that is wrong. That will not benefit anyone. To avoid that situation, it would be necessary to make express provision for a right of way to be created over

  65
  the land. But, again, the amendment does not provide for that; indeed, even if it did, there would be problems.
  A major concern is how one would identify the lines of the newly-created highway on the ground. That could be easily distinguishable from the definitive map and statement. But the scale at which definitive maps are drawn, particularly the old ones, is not always enough to show the line of a right of way so as to be able to relate it to features on the ground with enough accuracy. The maps are certainly not capable of being used to establish the width of a right of way and, therefore, the extent of the land covered by it; nor is the information always shown in the supporting statement. However, if a right of way is created by order, the land is surveyed and plotted on a map, usually on a scale that provides a reasonable indication of its line. To avoid any doubt, orders also contain additional information to assist identification on the ground.
  Definitive maps and statements do not always provide the same amount of information. Where a highway exists, if there is a dispute over its position, the parties can always go back to the original documents or evidence on which the highway was recorded and draw upon the various rules that the common law has established. But if errors were made, or if subsequent evidence showed that no highway existed, any previous evidence would be irrelevant—I warned noble Lords that this was a complicated matter!
  The Government have taken special care to ensure that the provisions are practical and workable. We have taken expert advice from the Ordnance Survey, which has taken the view that the scale and accuracy of depiction of rights of way on definitive maps, which would he the only basis for creating a highway, creates fundamental problems when trying accurately to re-create the position of a right of way on the ground. In most cases it would not be possible to re-create the position to better than 10 to 15 metres, if one only had the information on a definitive map. Land disputes can arise over far less than that.
  Our conclusion is that this would not be a workable provision and we are reluctant to pursue it. However, we have made some provision in the Bill to counter the extinguishment provisions. Clause 51 provides that where a footpath is wrongly shown on a definitive map as a bridleway on commencement of the section and remains wrongly recorded until the cut-off date, bridleway rights shall be created over it. We do not believe the same difficulties arise here because no new highway is being created from scratch. The only issue is what rights exist over it.
  Amendment No. 357A, which relates to the cut-off date, seeks to introduce safeguards for footpaths and bridleways created by public use, or deemed dedication. The first element relates specifically to Clause 49, which provides that any footpaths or bridleways that were created before 1st January 1949 and which have not been recorded on a definitive map at the cut-off date, shall be extinguished. It would
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  apply to all cases where the period of public use ended after 1st January 1949. However, for the purposes of the cut-off date, it is relevant only to those where the period of use also began before 1st January 1949.
  In relation to ways where the period of use began before 1st January 1949 and continued afterwards, then, solely for the purpose of Clause 49, the amendment would provide that the way should be deemed not to have existed before 1st January 1949. That is irrespective of whether public use of the way before that date was sufficient to establish that a right of way existed. So even though a highway did in fact exist before 1949, it would, under the amendment, be deemed not to have existed for the purposes of Clause 49.
  The second part of the amendment would widen the basis on which Section 31 of the Highways Act operates. Where the public have used a way for 20 years without interruption (and in the absence of evidence to the contrary), Section 31 provides, broadly speaking, that the way is deemed to have been dedicated as a public right of way. The 20-year period is calculated retrospectively from the date when the use is brought into question. The effect of the second element of Amendment No. 357A would be to enable applications to be made on the basis of Section 31 irrespective of whether there had been a challenge. That would apply to all such applications, including those where the period of use began after 1st January 1949 and to which the cut-off date does not apply.
  The first part of the amendment would effectively move the goal posts because it would enable the continued recording after the cut-off date of footpaths and bridleways created by deemed dedication before 1949. The Government believe that having a single date applying to all footpaths and bridleways is an important starting point to defining which ways are subject to the cut-off date provisions and which are not. The key purpose of these provisions is to encourage completion of the historic record of rights of way and to provide reasonable certainty to landowners and to the general public. I say that in the hope that it will avoid further questions from the noble Lord, Lord Elton. Those aims are undermined from the very beginning if we start to qualify the definition of what should be regarded as "historic" for the purposes of these provisions.
  However, we accept that Clause 49 needs to be qualified in certain circumstances. Clause 50 sets out certain exceptions; for example, footpaths and bridleways at the side of highways that are carriageways. We do not want to extinguish footpaths which, in practice, serve as pavements. There are several other safeguards, including a power for the Secretary of State or the National Assembly for Wales to make regulations exempting other footpaths and bridleways. All those safeguards are described in the Explanatory Notes to the Bill.
  In addition, Clause 50 enables regulations to be made extending the cut-off date for a maximum of five years in areas where the duty to record definitive maps has been in place since the 1949 Act. In other

  67
  areas—for example, those where definitive maps were only first required by the Wildlife and Countryside Act 1981—there is no upper limit to extending the cut-off date. These are predominantly urban areas. There has been concern that many footpaths and bridleways in such areas will not be recorded in time, especially as local authorities in such areas have not had as long to record their rights of way.
  It is a difficult task to remove rights of way from the definitive map. One needs to produce new evidence, which was not previously considered by the surveying authority. That evidence must also be cogent, given the conclusive evidential effect where a highway exists. I do not expect the noble Baroness, Lady Scott, to respond to the degree of detail contained in my response. However, when she reads my reply in Hansard, I hope that she will realise that we have provided the right sort of provision for natural justice and that her amendment would go too far.
  6.30 p.m.
  Baroness Carnegy of Lour: One's hair stands on end at the thought of the amount of work that will have to go into all this. But, at the end of the day, does the Minister think that people who want to walk along footpaths, bridleways and other highways will have more, or less, opportunity to do so?
  Lord McIntosh of Haringey: I do not believe that there is a single answer to that question. People will know what their rights are more clearly. I believe that to be the truth of the matter. As to whether there is more or less opportunity for them, that will depend upon adding together a whole number of judgments regarding individual cases. Walkers will make their claims as will landowners; indeed, there may also be counter-claims in both cases. It is not for me to predict the balance between the two. We would, of course, like the legislation to provide more scope for walkers, but we cannot guarantee that.
  Baroness Byford: I, too, should like to comment on these amendments. I accept what the noble Lord has just said. Certainly, from our point of view, anything that brings a degree of certainty to the issue—indeed, the position is still very uncertain, unless we follow the line that the Government are taking—must be an improvement. However, I had not read into the amendment the fact that the intention was to put the burden of proof back into the equation. I thought that we were taking the date in the amendment as "the cut-off date" and that anything that had not been on the definitive map prior to that would simply not be there.
  I certainly cannot comment on the Minister's good but rather long explanation. I shall read his response, but I believe that any measure that brings certainty will be welcomed by walkers and by those who own and manage the land in question. If the position is uncertain, that is a nightmare. We need to consider the matter further rather than accept the position as it stands at present. I hope that the noble Baroness will not press the amendment.
  Lord McIntosh of Haringey: I wish to comment further on the point made by the noble Baroness, Lady Carnegy. Clauses 59 and 60 contain much improved provisions for removing obstructions from rights of way. That should be an encouragement for walkers.
  Baroness Scott of Needham Market: I am grateful for the Minister's response which I shall read in Hansard with great interest and with a hot towel on my head! There are some key issues involved here. The noble Baroness, Lady Carnegy, reached the heart of the matter when she asked whether walkers would have more or fewer opportunities to roam. I suggest that it is a little disingenuous to say that the removal of obstructions is a major advantage. Clearly, that will be welcomed by walkers, but they have every right to expect to use public rights of way without their being obstructed. I am talking about the creation or deletion of public rights of way. The concern I have about the whole tenor of Part II is that the balance is tipped to make it easier for rights of way to be removed rather than created.
  In lowland arable areas, such as Suffolk where I come from, there will be little new access provision under Part I. We rely on the public rights of way network for access to the countryside. I am keen to ensure that there is no loss of access. My noble friend Lady Miller will return to that issue.
  Baroness Byford: Before the noble Baroness sits down, I should add that I, too, have links with Suffolk where my family's farm is situated. It has public rights of way. New pathways are being established through the various countryside schemes which are too many to mention. Certainly my family is negotiating new pathways on our land. I hope that the noble Baroness will not assume that because the Government are talking about old pathways that are perhaps not recorded, new pathways will not be made available. As I declared earlier, our land is not access land, but it has pathways across it and we are trying to negotiate more. I am sure that is the right way forward. I should hate the noble Baroness to think that there is only one way forward and that there will be no more pathways in the future. I believe that there certainly will be more pathways.
  Baroness Scott of Needham Market: I am grateful for those comments. I do not wish to downplay the kind of agreements that the noble Baroness mentioned. They are indeed valuable but, sadly, they are not as numerous as we might hope. However, in the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 323 to 333:
  Page 57, line 18, after ("byway"") insert—
  ("( ) after "the map shall" there is inserted ", subject to subsection (2A),",").

  69
  Page 57, line 35, at end insert ("—
  (a) subsection (1)(d) and (e) have effect subject to the operation of any enactment or instrument, and to any other event, whereby a way shown on the map as a restricted byway has, on or before that date—

  (i) been authorised to be stopped up, diverted or widened, or

  (ii) become a public path, and

  (b)")
  Page 57, line 36, leave out from ("way") to ("with") in line 37 and insert ("so shown").
  Page 58, leave out lines 2 and 3.
  Page 58, line 5, at end insert—
  ("(2A) After that subsection there is inserted—
  "(3A) Where as respects any definitive map and statement the requirements of section 53(2), and of section 55 so far as it applies, have been complied with, the map and statement are to be regarded for the purposes of subsection (3) as having been modified in accordance with the foregoing provisions of this Part whether or not, as respects the map and statement, the requirements of section 54 have been complied with."").
  Page 58, line 20, at end insert—
  ("(6C) Regulations made by the Secretary of State may require any surveying authority—

  (a) to keep such other documents as may be prescribed by the regulations available for inspection at such times and places and in such manner as may be so prescribed, or

  (b) to provide to any other surveying authority any document so prescribed which that authority is, by regulations under paragraph (a), required to keep available for inspection."").

  Page 58, line 22, leave out from ("Where") to ("area") in line 25 and insert—

  ("(a) different definitive maps and statements relate to different parts of a surveying authority's area,

  (b) as respects so much of each definitive map and statement as relates to that area the requirements of section 53(2), and of section 55 so far as it applies, have been complied with, and

  (c) there is no part of that").

  Page 58, leave out lines 34 to 39 and insert—
  ("(2) The power conferred by subsection (1) is not exercisable by a surveying authority if the definitive map and statement relating to any part of the authority's area is").
  Page 58, line 45, leave out ("Subject to subsection (2),").
  Page 59, leave out lines 1 to 25.
  Page 59, line 33, at end insert—
  (" . In Schedule 14 to that Act (applications for certain orders under Part III), in paragraph 4(2) at the end there is inserted "(which may include a direction as to the time within which an order is to be made)".
  In Schedule 15 to that Act (procedure in connection with certain orders), paragraph 9 is omitted and after paragraph 10 there is inserted—
  "Hearings and local inquiries
  10A.—(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) shall apply in relation to any hearing or local inquiry held under paragraph 7 or 8 as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section.
  (2) In its application to a hearing or inquiry held under paragraph 7 or 8 by a person appointed under paragraph 10(1), subsection (5) of that section shall have effect as if the reference to the Minister causing the inquiry to be held were a reference to the person so appointed or the Secretary of State.
  (3) Section 322A of the Town and Country Planning Act 1990 (orders as to costs where no hearing or inquiry takes place) shall apply in relation to a hearing or local inquiry under paragraph 7 or 8 as it applies in relation to a hearing or local inquiry for the purposes referred to in that section.".").
  On Question, amendments agreed to.
  6.45 p.m.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 334:
  Page 60, line 3, leave out from beginning to (""restricted") in line 7 and insert—
  ("11.—(1) Section 57 of that Act (penalty for displaying on footpaths notices deterring public use) is amended as follows.
  (2) In subsection (1), for "road used as a public path" there is substituted "restricted byway".
  (3) In subsection (3), for "or road used as a public path" there is substituted "restricted byway or byway open to all traffic".
  (4) After that subsection there is inserted—
  "(4) In this section—
  "byway open to all traffic" has the same meaning as in Part III of the Wildlife and Countryside Act 1981;"").
  The noble Baroness said: This amendment is technical. It relates to Section 57 of the National Parks and Access to the Countryside Act 1949 which makes it an offence to display a notice deterring public use of a way shown on a definitive map as a footpath, bridleway or road used as a public path. Highway authorities are under a duty to enforce this offence.
  Schedule 5 currently amends Section 57 in consequence of the redesignation of roads used as public paths (RUPPs) as restricted byways. However, under the current wording there is some doubt whether the offence would be enforceable in respect of a restricted byway which carried full vehicular rights and was, therefore, a byway open to all traffic. A consequence is that the Bill could make the offence unenforceable in circumstances in which it may presently be enforced. We do not want to weaken Section 57, and Amendment No. 334 would ensure that the status quo is maintained. I beg to move.
  On Question, amendment agreed to.
  Baroness Byford Baroness Byford moved Amendment No. 335:
  Page 60, line 15, at end insert—
  (" . After section 56 of the 1980 Act there is inserted—
  "Instance where order is not made.
  56A. No order shall be made under the preceding section if the respondent satisfies the court that the fact that the way to be maintained is a highway within section 56(1) above is seriously disputed."").
  The noble Baroness said: This amendment concerns the whole question of asserting public rights. Highway authorities are under a duty to maintain highways which are publicly maintainable. This duty therefore also applies to public rights of way. It can be the case, for whatever reason, that local authorities do not adequately carry out their duties, by allowing rights of way to become overgrown or impassable, and in effect obstructing the use of rights of way.
  This duty can be enforced by any member of the public where it is felt that the authorities are not carrying out their obligations under Section 56 of the Highways Act 1980. At present, Section 56 powers are being abused. Applicants are using the procedure to force highway authorities to maintain routes where the public status of that route is at issue. The user might argue that it is a public right of way; the owner might argue that it is merely a private track or permitted estate path.
  In effect, the Section 56 procedure is being used to ascertain the status of a path and to side-step the definitive map order procedure, where all the evidence can be examined and the landowner and other interested parties have the standing to be heard. This is a back-door method of asserting public rights. Even if the path is repaired by the authority, it may not subsequently be added to the definitive map, prolonging uncertainty for all. We have just discussed uncertainty on a previous amendment.
  The potential for the same problem has been recognised in what will be new Section 130B(4) and (5) of the Highways Act 1980. Sensibly a provision has been included whereby a highway authority is removed from an obligation to remove obstructions if the public status of the way is at issue. In particular, what will be new Section 130B(5)(a) provides that no order shall be made by a highway authority if it satisfies the court that the fact that the obstructed way is a highway is "seriously disputed".
  The amendment would apply the same constraint to Section 56 of the 1980 Act, preventing further abuse of the current procedure. Taking this action would provide further strong evidence of the Government's serious aim of securing complete and accurate definitive maps. Consideration should also be given to the merits of applying to Section 56 the parallel constraints provided by new Section 130B(5)(b) and(c). I beg to move.
  Lord McIntosh of Haringey: Amendment No. 335 would prevent an order being made under Section 56 of the Highways Act 1980 if the person alleged to be responsible for maintaining the way in question satisfies the court that there is a serious dispute as to whether it is a highway. The noble Baroness, Lady Byford, prayed in aid the provisions in Clause 59 of the Bill—that is, new Section 130B(4) and (5).
  The two provisions are substantially different. Clause 59 is concerned with the enforcement of the general duty on highway authorities under Section 130 of the 1980 Act to prevent, as far as possible, the rights of way for which they are responsible from being obstructed. The courts have held that the duty under Section 130 applies only if there is no serious dispute that the particular way is a highway. I refer to R v Lancashire County Council, ex parte Guyer [1980]. That is why Clause 59 prevents the magistrates' court making an order if it is persuaded that there is a serious dispute as to the status of a way. On the other hand, Section 56 provides a means for deciding the issue of
  72
  whether a way is a highway. Under Section 56 such cases go straight to the Crown Court for resolution and the enforcement of the duty to repair is not conditional on there not being a dispute about the status of the way. I am sorry about the double negative but the enforcement is not conditional on there not being a dispute. The amendment would not remove the provision for applications to be made to the Crown Court but would simply prevent the court from doing a job which Section 56 specifically assigns to it.
  The noble Baroness, Lady Byford, said that people use Section 56 to bypass definitive map procedures. Definitive maps were not conceived of as the exclusive route to establish the existence or non-existence of a highway. They are not conclusive of what is not shown in them and individuals, for example, are still entitled to apply for a declaration as to the existence of a highway.
  Section 56 is different from Clause 59 in a number of ways. Orders made by the court under Section 56 are against whoever has a maintenance responsibility. It could be the highway authority or a private individual. The order is made against whoever is responsible for a highway being out of repair. However, orders under Clause 59 are not made against whoever is responsible. They are made against the highway authority—the purpose being to get the authority to do its job properly and perform its duty.
  I hope that the noble Baroness will not press the amendment.
  Baroness Byford: I thank the Minister for his response. If repair is needed to a path and the user persuades the highway authority to do that repair, does the noble Lord accept that there is greater force behind the argument to establish that there is a right of way than if the highway authority had not undertaken the work in the first place?
  Lord McIntosh of Haringey: I do not think that that is necessarily the case. If repair is undertaken it is more likely that the walker, or whoever, will use the path. If that affects the status of the right of way, indirectly it affects the outcome. But I do not think the fact of the repair being undertaken of itself affects the situation.
  Baroness Byford: I thank the Minister for his response. I should like to consider the matter further. I think that there is an inference of undue pressure. However, at this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Byford Baroness Byford moved Amendment No. 335A:
  Page 60, line 15, at end insert—
  (" . In section 31(6) of the Highways Act 1980 (dedication of way as a highway presumed after public use of 20 years)—

  (a) for "a statement indicating" there is substituted "a statutory declaration indicating";

  (b) after "been dedicated as highways" there is inserted "and to the effect that he has no intention of dedicating any additional way over the land as a highway";

  73

  (c) for ", in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time—

  (i) within six years from the date of the deposit, or

  (ii) within six years from the date on which any previous declaration was last lodged under this section, to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are," there is substituted "such a deposit is,".

  (d) "or his successors in title" is omitted.

  After section 31(6) of the 1980 Act there is inserted—

  "(6A) Every surveying authority shall keep, in such a manner as may be prescribed, a register containing such information as may be prescribed with respect to deposits lodged under section 31(6).

  (6B) The register shall contain such information as may be prescribed with respect to the manner in which such deposits have been lodged and dealt with.

  (6C) Regulations may make provision for a specified part of the register to contain copies of deposits.

  (6D) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.

  (6E) In this section—

  "prescribed" means prescribed by regulations;

  "regulations" means regulations made by the Secretary of State by statutory instrument;

  and a statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament."").
  The noble Baroness said: The amendment deals with dedication. Deemed dedication in relation to public rights of way is where under common law it is presumed that at some time in the past a landowner has dedicated the way to the public, either expressly, the evidence of the dedication since being lost, or impliedly by making no objection to the use of the way by the public. Due to the uncertainty as to what period of time must have lapsed before this dedication can be sufficiently assumed, legislative measures have provided various tests to establish whether or not presumed dedication has taken place. The latest provisions are contained in Section 31 of the Highways Act 1980.
  Broadly, the effect of this section is that after 20 years, unless evidence of a contrary intention is apparent, a way will have been deemed to have been dedicated as a public right of way. Section 31(6) enables an owner to show that he or his successors in title did not intend to dedicate any additional way as a highway.
  Under subsection (6) it is possible to lodge a map, statement and statutory declaration rebutting any intention to dedicate any future public rights of way. The map identifies all known public rights of way on the specified land. Once lodged, the map, statement and declaration become public documents and available for public inspection.
  The provisions of Section 31(6) are valuable in rebutting presumptions of dedication based on future use—in other words, use after the date of the declaration. Equally, users may be able to provide evidence that a track has been used for 18 years as of right before the date of the first statutory declaration. If they cannot show an additional two years' use before that date they will be unable to claim that a public right of way has been created by deemed statutory dedication under Section 31.
  The aim of the amendment is to simplify the process of lodging a map, statement and statutory declaration with the highway authority to rebut deemed dedication. At present, a map, statement and declaration have to be lodged with the authority and a new declaration sworn every six years. The amendment would allow for the statutory declaration alone to contain all the necessary information. Further, instead of a new declaration having to be sworn every six years—even if, as is the norm, there is no change of intention on behalf of the landowner—the amendment allows for the declaration to continue in force until a change in ownership of the land. At present a statutory declaration sworn by a preceding owner has effect on the change of ownership, subject to renewal every six years. The amendment also provides for a register of deposits to be maintained. I beg to move.
  Lord McIntosh of Haringey: I am glad that the noble Baroness, Lady Miller, is still here. I want to show my dedication to duty and the way in which I work night and day, weekends and weekdays, for the Government. A couple of weekends ago I was walking up the path behind the church in Montacute towards the hill. I found a sign that I have never before seen. It said, "Permissive path". That did not refer to the activities which might be allowed on the path (which was disappointing) but stated that in accordance with Section 31(6) of the Highways Act 1980 the path is available to the public but is not a right of way. Neither the owner nor the local authority accepts that it is a right of way and the owner or the local authority can extinguish it at any time without notice. I proceeded up the path with due trepidation, but I did not stay until Monday to see whether it was recorded on a list.
  Perhaps I may say positively to the noble Baroness, Lady Byford, that to the extent that the amendment is aimed at reducing bureaucracy and providing more information to the public about the landowners' intentions—whether in the form of a lodged declaration or a notice—we are prepared to consider it. However, we would not be willing to make arty changes to Section 31 of the Highways Act which would undermine the concept and practice of deemed dedication, which we think to be an important principle. The noble Baroness has not attacked that principle.
  I cannot give a commitment that we shall bring forward amendments on Report because we may conclude that amendments are not necessary.

  75
  However, on the basis of our support for what we believe to be the thinking underlying the amendment, I hope that the noble Baroness will not press it.
  Baroness Byford: I am grateful and somewhat encouraged. I still await full encouragement. I shall consider the matter further.
  I am becoming more and more concerned by the number of issues to which the Government will return on Report. I fear that we shall have a very long Report stage if the Government keep failing to come forward with anything substantive on many issues. I am not making that point about this amendment, but as we have gone along there have been ever more issues on which the Government have told us that they are sympathetic and will think about it. At this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  7 p.m.
  Lord Glentoran Lord Glentoran moved Amendment No. 336:
  Page 60, line 18, at end insert—
  (" . After section 134(9) of the 1980 Act there is inserted—
  "(10) All references to this section to a footpath or bridleway shall include a restricted byway."").
  The noble Lord said: The amendment relates to the current powers on roads used as public paths. Highway authorities have a power under Section 147 of the Highways Act 1980 to authorise the erection of stiles or other appropriate barriers on footpaths, bridleways and roads used as public paths—which are presumed in law to be bridleways—situated on agricultural land to control the movement of animals. It is a widely used provision and land over which such paths run is frequently used for grazing.
  The Bill would prevent the authorisation of any form of barrier, however useful and however designed to minimise inconvenience to users, across many rights of way that were once roads used as public paths and have been reclassified as restricted byways. The amendment would correct that omission.
  Even the status quo could be affected, as the legal status of existing barriers across RUPPs is unclear. Is it intended that barriers across RUPPs—I hate that; roads used as public paths—already authorised and relied on by land managers should be under threat of removal? The Government need to clarify that.
  I sincerely hope that the Minister will accept the amendment, because refusing to do so could cause considerable disruption in certain parts of the countryside.
  I shall also speak to Amendment No. 337, which would allow restricted byways to be ploughed subject to reinstatement. The aim of the amendment is to strike a realistic balance between the needs of farmers to utilise their land and the legitimate requirements of users. It is currently possible to plough roads used as public paths provided that the surface of the way is reinstated within a prescribed period. The Bill will reclassify all RUPPs to restricted byways, thus
  76
  removing the right to plough. That could have grave effects on the management of the land where a RUPP is routed across fields. The amendment would preserve the status quo—as the Bill does in many other respects—by allowing cross-field RUPPs to be ploughed, subject to the duty to reinstate within the statutory time limits.
  User groups would obviously oppose any such provision, but their concerns are unfounded, as there are a number of safeguards for users. If a RUPP is in reality a byway there will be no right to plough. Secondly, the power will take effect only if it is not possible to avoid ploughing the path and it will be necessary to plough in accordance with the rules of good husbandry.
  Given those constraints, it is difficult to see how any RUPP that has had to be ploughed to date could suddenly be avoided simply because it is relabelled a restricted byway. There are strict time limits for reinstatement of the path to minimise inconvenience to the public.
  I hope that the amendments will be considered favourably. I beg to move.
  Lord Renton: My noble friend Lord Glentoran has made a powerful case on both amendments. I hope that the Government will consider them favourably. I should point out that there is a small misprint in Amendment No. 336. It should read:
  "All references in this section",
  rather than:
  "All references to this section".
  There is no such misprint in Amendment No. 337.
  Lord McIntosh of Haringey: I am grateful for the explanation of the two amendments. Amendment No. 336 would extend to restricted byways the provisions of Section 134 of the Highways Act 1980, which enables an occupier of agricultural land to plough footpaths and bridleways in accordance with the rules of good husbandry. I am afraid that we are not able to accept the amendment, so we shall avoid in this case the problem mentioned by the noble Baroness, Lady Byford, of creating too much work on Report.
  The Government's original proposal for dealing with the problems of uncertainty over roads used as public paths was to redesignate them as bridleways, but that was strongly opposed by equestrians, not only on the grounds that it would exclude drivers of horse-drawn carriages, but because bridleways may be ploughed and may have gates put across them. That is not true of a road used as a public path, unless the evidence shows that it is a footpath or bridleway or unless a private right to plough was attached to the highway when it was dedicated.
  Restricted byways will be a new form of carriageway. They will carry only limited vehicular rights, but horse-drawn carts are less able to cope with a ploughed surface than a horse, and even horses can have difficulties. Under Clause 46(1), a common law right to plough a RUPP will remain, but the

  77
  Government do not believe that it would be right to introduce new ploughing rights under Section 134. That would be inconsistent with the concept of restricted byways, which has been widely welcomed as an imaginative approach to help non-motorised users of the rights of way network.
  In response to our proposals for dealing with RUPPs, the Country Landowners Association said:
  "We suggest that any fears that reclassification to bridleway status will lead to routes being ploughed are unfounded. RUPPs by their very nature and age tend to be separated from field systems by physical boundaries and therefore ploughing them will be of no economic benefit".
  Amendment No. 337 would extend to restricted byways the power in Section 147 of the Highways Act 1980 for local authorities to authorise the erection of barriers on footpaths and bridleways to control the movement of livestock. Again, I am afraid that we cannot accept the amendment. The express power in Section 147 to allow bridleways to be gated was one reason why horse riders were so opposed to the Government's original proposals to redesignate roads used as public paths as bridleways. I do not need to point out that on the whole horse riders do not like gates because they present problems such as the latches being difficult to reach or covered by overgrown bushes. Most horse riders accept the need for barriers on footpaths and bridleways to control livestock, but we are breaking new ground with restricted byways.
  The Government have made clear their desire to do more for equestrians. In developing the concept of restricted byways, we have consciously distinguished them from bridleways in several ways. The Bill will not affect any pre-existing right to erect gates on RUPPs that are redesignated as restricted byways, but we have deliberately not extended the Section 147 powers to the new kind of highway. The amendments would be contrary to our commitment to equestrians and I hope that they will not be pressed.
  Lord Glentoran: I am rather distressed by the Minister's response. We are in no way anti horse riders and all that goes with that, but if the amendments are not accepted, the management of land will be impeded. It will be impossible to keep livestock on some tracts of land because barriers cannot be erected to keep them in. Making it impossible to plough paths that go across acres of cereal crops—I have seen such paths in Surrey—is a serious restriction on land management. It is not possible to stop ploughing within a foot of the land that people walk on. It causes considerable inconvenience to break large acreages of cereal land into bits when ploughing.
  Therefore, if the Minister will not allow the ploughing of RUPPs where they have been ploughed in the past, with the guarantee of reinstatement and all that goes with it, and will not allow land managers and landowners to put up barriers to keep in livestock, I find that unacceptable. I beg leave to test the opinion of the House.
  7.10 p.m.
  On Question, Whether the said amendment (No. 336) shall be agreed to?
  Their Lordships divided: Contents, 54; Not-Contents, 119.

  Division No. 1

  CONTENTS

  Attlee, E.

  Lamont of Lerwick, L.

  Biffen, L.

  Luke, L.

  Blackwell, L.

  Mackay of Ardbrecknish, L.

  Blatch, B.

  Mancroft, L.

  Bridgeman, V. [Teller]

  Mar, C.

  Buscombe, B.

  Marlesford, L.

  Byford, B.

  Monson, L.

  Carlisle of Bucklow, L.

  Moynihan, L.

  Carnegy of Lour, B.

  Northesk, E.

  Chalker of Wallasey, B.

  O'Cathain, B.

  Clark of Kempston, L.

  Onslow, E.

  Colwyn, L.

  Palmer, L.

  Cope of Berkeley, L.

  Park of Monmouth, B.

  Courtown, E.

  Peel, E.

  Craigavon, V,

  Pilkington of Oxenford, L.

  Dixon-Smith, L.

  Rawlings, B.

  Elton, L.

  Renton, L.

  Fookes, B.

  Roberts of Conwy, L.

  Gardner of Parkes, B.

  Rotherwick, L.

  Glentoran, L.

  Seccombe, B.

  Harris of Peckham, L.

  Selborne, E.

  Henley, L. [Teller]

  Shaw of Northstead, L.

  Hodgson of Astley Abbotts, L.

  Simon of Glaisdale, L.

  Hooper, B.

  Strange, B.

  Jopling, L.

  Strathclyde, L.

  Kimball, L.

  Wilcox, B.

  Kingsland, L.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Acton, L.

  Falconer of Thoroton. L.

  Addington, L.

  Farrington of Ribbleton, B.

  Allenby of Megiddo, V.

  Faulkner of Worcester, L.

  Alli, L.

  Filkin, L.

  Amos, B.

  Gale, B.

  Andrews, B.

  Geraint, L.

  Archer of Sandwell, L.

  Gibson of Market Rasen, B.

  Ashley of Stoke, L.

  Goldsmith, L.

  Ashton of Upholland, B.

  Goodhart, L.

  Bach, L.

  Gould of Potternewton, B.

  Bassam of Brighton, L.

  Grenfell, L.

  Beaumont of Whitley, L.

  Harris of Greenwich, L.

  Berkeley, L.

  Harris of Haringey, L.

  Blackstone, B.

  Harrison, L.

  Blease, L.

  Hilton of Eggardon, B.

  Brennan, L.

  Hollis of Heigham, B.

  Brett, L

  Hooson, L.

  Bridges, L.

  Howells of St. Davids, B.

  Brooke of Alverthorpe, L.

  Hughes of Woodside, L.

  Brookman, L.

  Hunt of Kings Heath, L.

  Burlison, L.

  Irvine of Lairg, L. (Lord Chancellor)

  Carter, L. [Teller]

  Chandos, V.

  Islwyn, L.

  Christopher, L.

  Jay of Paddington, B. (Lord Privy Seal)

  Clarke of Hampstead, L.

  Cocks of Hartcliffe, L.

  Jenkins of Putney, L.

  Craig of Radley, L.

  Judd, L.

  Crawley, B.

  Layard, L.

  Currie of Marylebone, L.

  Lea of Crondall, L.

  Darcy de Knayth, B.

  Lipsey, L.

  David, B.

  Lockwood, B.

  Davies of Oldham, L.

  Lofthouse of Pontefract, L.

  Dean of Thornton-le-Fylde, B.

  Macdonald of Tradeston, L.

  Desai, L.

  McIntosh of Haringey, L. [Teller]

  Dixon, L.

  Donoughue, L.

  MacKenzie of Culkein, L.

  Dormand of Easington, L.

  Mackenzie of Framwellgate, L.

  Elder, L.

  Mallalieu, B.

  79

  Mar and Kellie, E.

  Simon, V.

  Massey of Darwen, B.

  Slim, V.

  Miller of Chilthorne Domer, B.

  Smith of Gilmorehill, B.

  Milner of Leeds, L.

  Symons of Vernham Dean, B

  Molloy, L.

  Taylor of Blackburn, L.

  Morris of Manchester, L.

  Thomas of Walliswood, B.

  Nicol, B.

  Thornton, B.

  Orme, L.

  Tomlinson, L.

  Perry of Walton, L.

  Tordoff, L.

  Phillips of Sudbury, L.

  Turner of Camden, B.

  Pitkeathley, B.

  Varley, L.

  Plant of Highfield, L.

  Walker of Doncaster, L.

  Powell of Bayswater, L.

  Warner, L.

  Prys-Davies, L.

  Warwick of Undercliffe, B.

  Ramsay of Cartvale, B.

  Watson of Invergowrie, L.

  Rea, L.

  Whitaker, B.

  Rendell of Babergh, B.

  Whitty, L.

  Sawyer, L.

  Wigoder, L.

  Scotland of Asthal, B.

  Wilkins, B.

  Scott of Needham Market, B.

  Williams of Crosby, B.

  Sharp of Guildford, B.

  Williamson of Horton, L.

  Shepherd, L.

  Woolmer of Leeds, L.

  Sheppard of Liverpool, L.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  7.20 p.m.
  [Amendment No. 337 not moved.]
  Lord Glentoran Lord Glentoran moved Amendment No. 337A:
  Page 60, line 18, at end insert—
  (" . In subsection 147(1) of the 1980 Act (power to authorise erection of stiles on footpath or bridleway)—

  (a) for "agricultural land, or of land which is being brought into use for agriculture" there is substituted "land";

  (b) for "land for agriculture" there is substituted "land";

  (c) after "shall be efficiently carried on," there is inserted "or for preventing the unlawful use of the path or way,"; and

  (d) "for preventing the ingress or egress of animals" is omitted.

  . Subsection 147(5) of the 1980 Act is omitted.
  . After subsection 147(6) of the 1980 Act there is inserted—
  "(7) All references in this section to a footpath or bridleway shall include a restricted byway."").
  The noble Lord said: This amendment also concerns the power to provide barriers but this time not to control stock but to prevent the illegal vehicular use of bridleways, restricted byways and footpaths.
  Section 147 of the Highways Act 1980 allows owners or occupiers of agricultural land or land coming into agricultural use to apply to the local authority in respect of a public footpath or bridleway to erect stiles, gates or other works across a right of way.
  In agreeing to any such structure, the local authority must consider that it is in the interests of efficient agricultural use being carried out. The erection of a stile or gate is required to prevent the egress and ingress of animals. That is the only ground on which permission can be granted. That narrow power does nothing to respond to increasing concern over the illegal misuse of vehicles on public bridleways and even at times footpaths.
  The amendment would amend Section 147 of the Highways Act 1980 to facilitate the use of barriers or other works at the discretion of the authority to
  80
  prevent unlawful vehicular use of footpaths, bridleways and restricted byways. It would also remove the current restriction on the use of those powers to land used for agriculture or forestry or to land being brought into use for those purposes.
  It could, accordingly, be used on land used for keeping horses or ponies for recreational purposes or on land in urban areas. The amendment also removes the current limitation on the purpose of such works which is purely to control the ingress and egress of animals.
  This amendment would be highly valuable in preventing rural crime and ensuring the safety of users of rights of way. At present and in practice, very little can be done to prevent the illegal use of footpaths and bridleways by vehicles. If users of a footpath are endangered by such use, authorities could erect some sort of barrier, using the provisions of Section 66 of the Highways Act 1980. However, no such provision exists for bridleways or for the proposed restricted byways.
  It is unrealistic to expect a regular police presence to deter illegal vehicular use. As well as often being a source of danger, a particular concern for rural communities is that illegal vehicular use of paths and ways frequently provides the means of access and escape for those engaged in rural crime; for example, theft of property, fly-tipping and perhaps even poaching.
  Broadening the highway authority's power to permit the placing of appropriate barriers on rights of way would provide a practical method of preventing illegal vehicular use. As a barrier could be placed only at the discretion of the authority, that would protect users' legitimate concerns while acting to protect both users and landowners alike from illegal vehicular use.
  It is recognised that gates on rights of way can inconvenience users. However, all that is sought is for the authority to have discretion to permit gates when there is clearly a problem with illegal vehicular use. Such illegal use is not of benefit to users of the way nor to land managers alike.
  Many user groups would favour such a discretion in cases where there is persistent driving on rights of way. Further, from the land manager's perspective, if a route is being used by vehicles to aid theft, and that is adversely affecting the business of the occupier, surely there comes a point where the minor inconvenience to users of having to open and shut a gate is justified.
  One benefit of the proposed amendment to Section 147 is flexibility. It would allow the authority to sanction the construction of pinch-points rather than gates where that was felt to be a better solution. From the owner's point of view, it is the illegal use of cars on paths—and, I dare say, motorbikes, quad bikes and so on—with their ability to carry stolen goods which is the major threat to security.
  It is recognised that Ministers have sought to avoid the possibility of restricted byways being gated. However, the ability to allow gates across RUPPs has always existed, as they are legally presumed to be bridleways. Extending the power to erect barriers to such ways once they become restricted byways would

  81
  merely maintain the status quo. There is no reason why it should lead to the erection of further gates unless there was a genuine problem with illegal vehicular use in a particular area.
  If the discretion to allow gates is not applied to restricted byways, gates that already exist on RUPPs and which have been authorised by the authority for the control of animals may have to be removed once the RUPPs have been reclassified as restricted byways. That would cause significant resentment among land managers and would fail to recognise the practical problems of controlling the movement of animals.
  It should be noted that all that is sought is for the authorities to have the discretion—and I emphasise that—to authorise the erection of gates or other barriers on rights of way where there is good reason for such barriers. There would be no obligation on the authority to grant permission. And, of course, this amendment makes the point that the decision is not in the hands of the landowners but in the hands of the access or local authority. I beg to move.
  Earl Peel: I support my noble friend's amendment based entirely as it is on practical common sense. Many of the arguments which my noble friend advanced go back to those which we used when discussing Amendment No. 314 moved by the noble Lord, Lord Williams of Elvel.
  The truth of the matter is, as my noble friend said, that this amendment would seek to legitimise what is a current practice. And it is a current practice brought about by a very real need; that is, to stop vehicles from using bridleways. It is happening consistently and it is a problem with which land managers are faced on a regular basis.
  The results are obvious: the track becomes disrupted and falls into a state of disrepair; it is costly to maintain; and it is inconvenient for all those people who use those rights of way. As my noble friend quite rightly said, it is a perfect opportunity for people to use those paths for carrying out criminal activities. He mentioned fly-tipping, which is a very real issue now. I can think of many instances where bridleways have been used illegally for fly-tipping by people in vehicles. As my noble friend said, the amendment provides a power to the local authority to permit. That is an important point. It would not provide a widespread power to owners and managers to act in an indiscriminate fashion.
  I can think of a number of examples where well-designed barriers on open moorland have been constructed in such a way as to prevent vehicles passing through them illegally. They would not prevent cross-country bikes passing through, but would prevent vehicles, which is of major importance. At the same time, such barriers do not impede access to walkers, cyclists or riders. The Minister earlier referred to riders.
  Where such barriers are deemed necessary, they help to deter people from the temptation of using such roads. Seeing a barrier across the road would remove the thought, "I might have a go and see if I can get up
  82
  this track", or "I might use this for fly-tipping" and so forth. There is no question but that such barriers have been used judiciously when deemed necessary. To my knowledge, the local authorities have not challenged them. I believe that they see the relevance and importance of such barriers. The amendment would legitimise activities which are a necessary part of management procedures.
  I hope that the Minister will see reason and sense and that he will accept my noble friend's amendment.
  7.30 p.m.
  Baroness Miller of Chilthorne Domer: The amendment raises interesting issues. We, on these Benches, are somewhat nervous about the erection of barriers.
  Later on in the Bill we shall come to extinguishment of rights of way for reasons of crime. Crime is a serious issue. I understand that there are two reasons behind the amendment: prevention of crime and specifically preventing driving on rights of way. Our attitude to crime prevention falls into a similar category to our attitude to night access. An issue of crime needs to be addressed as such and dealt with in the same way as when people use unclassified roads. Just because they happen to be on a bridleway or footpath does not alter the fact that they have committed a crime and need to be apprehended. However, we do not suggest that because of the large amount of worrying rural crime, we should gate all unclassified roads.
  I am intrigued by the suggestion made by the noble Earl, Lord Peel, about other designs of barriers to prevent driving illegally for fun on rights of way. We heard earlier the reasons for discouraging that. If it was possible to design a barrier which would cause trouble to a vehicle trying to negotiate it, but which could be negotiated by walkers of all abilities, including the less able, and by horse riders, that would be a different matter.
  I have another difficulty with the amendment. The noble Lord, Lord Glentoran referred to barriers. Horse riders, in particular, experience problems with gates. When the gates are first erected, there are good intentions and the gates start out as open gates. However, after a short time they become chained and locked and are another obstruction.
  I understand the good intentions behind part of the amendment. However, on the whole, I find it more worrying than helpful.
  Baroness Mallalieu: Perhaps I may ask the Minister to consider carefully this amendment. In the area in which I live there has been a problem on a number of major bridleways with trespass by travellers. There are not adequate provisions for lawful sites. Steps have been taken to provide the sort of barrier to which the noble Baroness referred. They have offset rails, and are at a height which makes it perfectly possible for people to ride in a figure of eight in order to pass through. Walkers are not impeded in any way, but caravans and cars are.

  83
  Strictly speaking, that form of trespass may not be a crime. However, it can lead to the closure of those paths for all other users because car breaking may take place, broken glass and metal may be left and there may be difficulty in passing. This is a real problem in some areas. It can be dealt with in a way that does not prevent legitimate use of the path. The very limited provisions which allow for such barriers to be erected only by permission of the authorities seem to me to be necessary.
  Baroness O'Cathain: I, too, support the amendment, and can see the reason for it, particularly in view of crime, to which we shall come later in the Bill, but also because of fly-tipping. Since the introduction of the landfill tax, there has been a huge increase in fly-tipping. That militates against the enjoyment of walkers. I am told that this is partly the reason for the Bill. Walkers will feel much more confident if they know they will not be mown down by 4 x 4s on the bridleway. From the point of view of walkers and riders, the amendment is a good idea.
  The noble Baroness, Lady Miller, referred to the sudden chaining of gates. If the authorities are given the power to erect such barriers, it would be in their remit to ensure that that does not occur. Such a situation could be reported and the problem obviated.
  Lord Kimball: I, too, add my support to the amendment. Nowadays, there are a large number of "hippy" people. Once on one's land, it is almost impossible to remove them and it costs a great deal of money to do so. It is important to agree with the local authority that a substantial barrier is put in place. The police come round and warn landowners when such people are on the move, so that in the first instance, one can block the road with every conceivable form of farm machinery. However, after that, a substantial barrier has to be erected. I hope that the Minister will realise what a major problem that is in the countryside.
  The Earl of Selborne: I apologise for delaying the Committee, but I should like briefly to add my support. It has been a feature in my part of Hampshire that travellers have moved on to land and caused great damage. Three or four weeks ago, devastating damage was done to the working men's club in Whitehill off public access. It is perfectly possible to design a barrier which in no way impedes foot users and riders. This is a happy amendment which achieves the objective of furthering the interests of genuine bridleway and footpath users. At the same time it achieves much for the peace of mind of others involved with the land.
  Lord McIntosh of Haringey: Perhaps the Committee will forgive me if I do not trespass on the wider issues of vehicular access to restricted byways and bridleways. Such issues have been debated and will be again when we come to Schedule 7. I do not want to debate that now; nor do I think that it is entirely relevant to discuss the issue of travellers. I certainly do not want to do that in case I find that the noble
  84
  Lord, Lord Kimball, has been boasting about doing things which are illegal! I am not sure about putting farm machinery across public rights of way as a solution.
  I have listened carefully to what has been said by all those who have taken part. We cannot accept the amendment, but I have some comments on alternatives. We believe that Section 147 of the Highways Act has stood the test of time. The general public accept that gates and fences are required to prevent livestock wandering where they should not. Indeed, in some parts of the country stone stiles are effective, attractive and traditional.
  However, the amendment would have the potential for significantly increasing the number of gates and barriers on rights of way. I know that in the end this would be up to the local authority. However, I do not believe that local authorities are given power to do things unless it is thought that such power would be used. I assume that those who have taken part in the debate believe that that power would be used. It would allow the occupier of any land to ask the local highways authority, or other competent authority, to grant permission to erect a gate or other barrier on a footpath or bridleway to facilitate the efficient use of that land for any purpose. That in itself is very wide. It could cover virtually any operation whether it be agriculture, forestry or any other use. That could include developed land—that is, land in urban areas—crossed by footpaths and bridleways.
  It goes further, in that it would allow barriers to be created to prevent unlawful use of a right of way. It would also extend to restricted byways, and I argued that in relation to Amendments Nos. 336 and 337. With regard to the other points, we are not convinced that the case for extending Section 147 in the way in which the amendment proposes is sufficiently great to override the public interest in having footpaths and bridleways which are reasonably clear of barriers for them to surmount.
  I understand the arguments about criminal use of footpaths and bridleways. But Section 147 is not the way to tackle it. For example, it is difficult to see how a gate could keep out a motorist unless it were locked, and, if it were locked, walkers and riders could not get through. It could also make life difficult for disabled people.
  Earl Peel: I hope I explained when speaking to my noble friend's amendment that the sort of barriers that I have seen in place are designed in such a way that horse riders, cyclists and walkers can get round them. That is an important point.
  Lord McIntosh of Haringey: I indicated that I would come on to that matter. However, I want to make the point in relation to the amendment before us, which concerns gates. A gate will not deter a motorist unless it is locked; and if it is locked it will deter other people as well.
  As the noble Earl, Lord Peel, rightly said, there are alternatives and they could be bollards or, as my noble friend Lady Mallalieu, said, parallel rails—a sort of

  85
  chicane—and bollards or a chicane would certainly deter motorists but they would not deter motorcyclists. We must consider how effective they would be in dealing with illegal use or use for criminal purposes, though not illegal.
  The department is reviewing the road traffic regulation law. It will be difficult for me to undertake to bring back amendments on Report in this Bill. However, we undertake to look at forms of deterrent other than the gates proposed in the amendment. On that basis I hope that the noble Lord will not press the amendment.
  Lord Glentoran: I thank the Minister for that explanation of the Government's view. I should like to say to the noble Baroness, Lady Miller, that our key point on this amendment was not the prevention of crime, though it would be a help. Where crime is concerned, it is worth saying that we are taught day in and day out by the authorities that prevention is far better than cure and to help to prevent crime is the right thing to do. So if the amendment was to help prevent crime then it would be doing a public service.
  The noble Baroness, Lady Mallalieu, as an expert in this field, gave her view in relation to horse riders. That was extremely helpful. We are in no way setting about trying to deter or prevent walkers having free and easy access to footpaths with this amendment; indeed, the contrary. We want them to have free and easy access, and also safety and not to have to worry about quad bikes, four-wheel drive vehicles and so forth spoiling their afternoon, evening or even night.
  I felt that the Minister did not take the business of travellers seriously. If he was saying that he would return to the matter later in the Bill, I accept that. I believe that the issue of travellers—I am not sure what the English term is, gypsies or whatever—is a real problem. It is of real concern to local authorities and landowners. They have an ability to find their way up small muddy tracks and then set up camps which take an eternity to get rid of. My noble friend Lord Kimball mentioned the hippies and they probably come under the same category.
  I am satisfied that the Minister says he will take on board and accept the need to attempt to carry out in the Bill the amendment's original objective.
  Lord McIntosh of Haringey: I cannot undertake that amendments will be produced within the Bill. We recognise the problem. We do not believe gates are the answer and do not believe this amendment to be the answer. It may be that a solution will have to be found in some other way.
  Lord Glentoran: I thank the Minister for that intervention. In that case we will read what he said and await the outcome of the Bill at Report stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 338 and 339:
  Page 60, line 19, leave out ("329(1) of the 1980 Act (interpretation)") and insert ("329 of the 1980 Act (interpretation)—
  (a) in subsection (1)").
  Page 60, line 22, at end insert—
  ("(b) in subsection (2) for "either "bridlewav" or "footpath"" there is substituted ""bridleway", "footpath" or "restricted byway"".").
  On Question, amendments agreed to.
  On Question, Schedule 5, as amended, agreed to.
  Baroness Farrington of Ribbleton: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.45 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

Environmental Court
7.46 p.m.
Lord Brennan Lord Brennan rose to ask Her Majesty's Government whether they propose to establish a specialist environmental court for England and Wales.
The noble Lord said: My Lords, I rise to speak to the Question to Her Majesty's Government,
"whether they propose to establish a specialist environmental court for England and Wales".
I regret having phrased the Question in that form as those around me leave the Chamber. It is a matter of much greater significance than just for lawyers.
The reason for this debate is that in February this year the Department of the Environment, Transport and the Regions published the research study it had commissioned from Profession Malcolm Grant, who holds the chair of land economy at Cambridge University. He reported on the feasibility of establishing for England and Wales a specialist environmental court. His study had been sought to assist that ministry in its five-yearly review of the Planning Inspectorate. But, as I indicated, it has far wider effect.
Professor Grant recommends a specialist court or tribunal structure for environmental justice in England and Wales. That is not the product of his thinking alone. It is, in my view, the inevitable path that follows from much previous thinking in this direction. In 1989, we had the Commonwealth Report recommending the same; in 1991, the Garner Lecture by the noble and learned Lord, Lord Woolf, repeated, albeit in a different form, in his 1997 Lord Morris Lecture. We have had major developments in European Community law and, of great significance, the Aarhus Convention of 1998 on Access to Justice, Public Participation and Access to Justice in Environmental Matters. And, lastly, we have the Human Rights Act 1998.
Professor Grant's report seeks to provide an economic and efficient legal framework for planning and environmental matters. The following problems require such a framework: first, the effective integration of planning and environmental decision making; secondly, the elimination of excessive cost and delay in environmental justice; thirdly, the constitutional position of the planning inspectorate; fourthly, weaknesses in the enforcement mechanisms in this field; fifthly, the lack of expertise in magistrates' courts dealing with extremely technical issues such as contaminated land remediation notices; sixthly and finally, the age-old problem of running major public inquiries, at great length and cost, into complex public projects.
What are the environmental principles on which such a court or tribunal should act? Surely, this is of primary importance. A technical framework for environmental justice is not enough; it must be a framework which can balance decisions against clear objectives. From Europe, we have Article 6 of the EC treaty, which requires that environmental protection requirements must be integrated, in particular with a view to promoting sustainable development. Article 174 provides that Community policy on the environment shall contribute towards objectives which include preserving, protecting and improving the quality of the environment; protecting human health; and prudent and rational utilisation of natural resources. The 1997 directive on the effect of public and private projects on the environment is a classic example of the treaty in action.
In England and Wales, Section 4 of the Environment Act 1995 requires that the agency created by that Act shall,
"protect or enhance the environment … towards attaining the objective of achieving sustainable development".
Ministers can give guidance on objectives. The Regional Development Agencies Act 1998 (Section 4), the Greater London Authority Act 1999 (Section 30) and the Local Government Act 2000 (Section 2) all in one form or another provide that those acting under those statutes shall promote and improve not only the environment but the sustainable development of our community's resources.
All that statutory background led to a White Paper in 1999 extolling the virtues of a society which developed its environment with those objective in mind. Now, the Human Rights Act clearly establishes that decisions which determine civil rights shall be subject to Article 6 where such a decision,
"directly affects the pre-existing property rights of a third party",
and its decision is decisive. Article 8 has been recognised by the European Court of Human Rights as providing in its privacy protection, protection in relation to environmental interference.
With that framework in mind, the question arises whether a change in our legal framework is necessary now. I return to the Human Rights Act. The planning inspectorate is constitutionally an organ of government. It is difficult to argue otherwise. Article 6
88
of the convention will be breached by a planning system so based unless there is an effective and fair right of appeal. In July 2000, in the Scottish Court of Session, in County Properties Limited v. The Scottish Ministers, Lord MacFadyen held that it was an abuse of a limited company's human rights for its application for listed building consent to be called in by a Minister because of an objection by a government agency.
That decision is careful and reasoned. It may well be the subject of appeal. Lawyers reading it will look with interest to an argument which will prevail against Lord MacFadyen's analysis. What does it illustrate? That the Human Rights Act is now determining the scope of environmental justice in this country.
On a more general topic, what will courts determine the Human Rights Act to have to say in relation to third party rights in the planning and environment field? At present, we in this country have an entirely one-sided planning system. It is directed at the applicant and the decision maker. We, the citizens around it, have limited rights, if any, to be heard. I said, "rights, if any", because, if permission is given, there are opportunities for representations to be made and there is the remedy of judicial review. Many hold—and I am one of them—that a third party whose rights are affected by a planning decision should have the right—and I mean the right—to intervene and appeal on the merits of a decision affecting his or her rights. Neither the decision in Bryan, in the European Court of Human Rights, nor in my view any reasonable construction of Article 6 can cure such a default in our present system.
That concern about the role of the citizen in entertaining legal rights on his or her own behalf is well illustrated by the Aarhus Convention 1998. It is probably little known by citizens, let alone lawyers, that that convention in the strongest possible terms provides that parties to it "shall" provide by national legislation or regulation for access to information with an expeditious and cheap right of appeal, and the right to public participation in plans, programmes, policies, regulations and legislation affecting the environment. One cannot contemplate a wider requirement for the participation of our citizens in environmental decisions. Those factors—the Human Rights Act and the Aarhus Convention—surely require that attention be given to this topic and be given sooner rather than later.
What structure should therefore be considered? Personally, I find the Grant recommendation to be sensible. He suggests a two-tier court or tribunal involving the Lands Tribunal. We already have the example of the employment tribunal system and the support of the noble and learned Lord, Lord Woolf, for such a system provided that it avoids cost, undue complexity and jurisprudential squabbling. The first tier of such a court or tribunal would include the present initial stages of the planning process. The second tier would involve judges and multidisciplinary panels. They would then deal with planning inspectorate functions by way of appeal, and be seen to be independent. They would entertain statutory appeals and applications, appeals from

89
lower courts and tribunals, applications for judicial review and civil litigation involving toxic torts which are of such major public concern.
In this field, I am not a generalist; I favour expertise. I expect that a tribunal which determines matters of such complexity will do so not just with intellectual acuity but with understanding of that which it is deciding. This result would embrace the best of the foreign experience, particularly in Australasia. It would be a reasonable compromise with our present system and would provide a better system of environmental justice than we have now.
Will it work? It will work only on the following bases: first, that the Woolf management system is employed; and, secondly, that there is informality and reduced cost, and thereby public confidence in the system.
If noble Lords will be patient for a moment, in closing I should like to invite the Government, echoing the words of Patrick McAuslan, to give serious thought to the creation of a judicial-type body—an environmental court or tribunal—with wide-ranging jurisdiction through which it can develop via its decisions environmental jurisprudence to help us forward into the new era of a more conscious and deliberate balancing of development and environmental protection and a more knowledgeable weighing of risks, liabilities and rights.
Baroness Ramsay of Cartvale: My Lords, I must draw to the attention of the House that each speaker is allowed 12 minutes in this debate, which is limited to one hour. To go into the 15th minute is not helpful.
8.1 p.m.
Lord Goldsmith: My Lords, I thank my noble friend Lord Brennan for initiating this debate, which I should like to believe has produced a select group, if not a large one. Specialist courts are a good feature of our judicial system. They bring expertise and experience to the resolution of disputes which is good for the decision-making process and public confidence in it. Public confidence in the process is a very important consideration. We have examples in the employment tribunals, the Construction Court and the Commercial Court. The Commercial Court is a very good example of a specialist court which commands high public confidence because of its expertise and experience. The degree of international confidence in that court is remarkable. Many cases are brought in that court through choice of international businesses. A glance at the Daily Cause List any day will show many cases in which at least one of the parties appears to have no connection with the United Kingdom. Frequently, none of the parties has any connection with this country. That is good for foreign exchange.
It is the quality of the judges and their experience which is the advertisement for the Commercial Court. That court was very much the result of demand by the commercial community. It was founded in March 1895 as a direct result of pressure from the business community which had been outraged by the decision
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in Rose v Bank of Australia, which was a case on the esoteric area of general average. It had been argued by the greatest mercantile lawyers of the day who plainly had the widest possible grasp of the subject and decided by Mr Justice Lawrance who plainly had none. He was a judge who was described by Lord Justice Scrutton as having been the true begetter of the Commercial Court. His appointment as a High Court judge had been universally condemned. He was described in the Law Times as,
"a bad appointment, for, although a popular man and a thorough Englishman, [he] has no reputation as a lawyer, and has been rarely seen of recent years in the Royal Courts of Justice".
That was not quite as bad as Lord Justice MacKinnon's later comment that Mr Justice Lawrance was,
"a stupid man, a very ill-equipped lawyer, and a bad judge".
It was as a result of the failure of the decision in that case that the business community insisted on the formation of a commercial court; otherwise, it would set up an arbitration service of its own.
I am a strong supporter of the concept of judicial specialisation and specialist courts, but there are also dangers. Over-fragmentation of the court system risks a lack of overall coherence in the administration of justice, a reduction in flexibility as judicial or other resources are applied exclusively to one system, and a weakening of the skills of the senior judiciary.
Like my noble friend, I have great admiration for the report of Professor Grant, which is illuminating and thorough. His strong proposal for the establishment of a separate environmental court merits further consideration. I do not come to this issue as a specialist in the environmental field, although I have appeared in several major and long-running public inquiries. Unlike the position with commercial disputes in the late 19th century, I do not perceive that there is any widespread or general discontent with the expertise of those who deal with the bulk of environmental concerns at the moment.
So far as concerns the primary area of appeals on merit, that is dealt with by the Planning Inspectorate. Professor Grant rightly commends the inspectorate as an efficient organisation which commands a high level of public support. The 13th report of the Select Committee on Environment, Transport and the Regions of another place strongly recommends that, in view of the high quality of the work of the Planning Inspectorate, if there were to be an environmental court the inspectorate should be its first tier. I regard that as a sound approach. Similarly, at the level of judicial review the listing in the Crown Office enables cases to be placed before judges with appropriate experience and expertise. I am not aware of any criticism of their ability or handling of those cases.
Although that demand does not seem to be present, there are four cogent reasons for considering further this particular proposal: first, the desirability of establishing the Planning Inspectorate as a constitutionally independent judicial body. Professor Grant notes that over 98 per cent of planning appeals are determined by inspectors. The reality is that in

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those areas they are independent. They operate within the framework of government policy but apply it—the courts insist upon it—in a judicial, or quasi-judicial, way. Therefore, there is a strong case for making the theory fit the reality, and to shift the Planning Inspectorate from a government department to the judiciary makes sense.
Up to now the process has withstood ECHR challenge in the decision in Bryan v United Kingdom. The European Court of Human Rights was more or less prepared to accept the planning system as compliant. However, as my noble friend observed, the Human Rights Act provides a very good opportunity to look at it again.
The second reason is that the proposal provides a framework for more satisfactory environmental enforcement. The initial impetus for a separate environmental court came from Mr Robert Carnwath, QC, now Mr Justice Carnwath. He argued convincingly in 1992 that a major obstacle to effective reform of the system of planning enforcement was the lack of a unified court. The system operates by an enforcement notice, an appeal against that notice and eventually proceedings in the magistrates' court. But they rarely had enough cases to build proper tariffs, and the heavy-handedness of criminal sanctions and the delay before getting to the court meant that the enforcement system was, in his view, defective. If, on the other hand, there is a different court structure, a different tribunal structure, under which simplified applications can be made, not for criminal sanctions but, as Professor Grant recommends, for a simple order to enforce planning control, that could do a great deal to enforce better environmental controls.
The third reason referred to by my noble friend is the extension of public involvement in environmental control. That last consideration overlaps with the question of new functions and the extension of public involvement in environmental control. My noble friend is surely right when he says that the Aarhus Convention of June 1998 requires that member states allow persons with a sufficient interest to have access to review procedure to challenge—I emphasise this—the substantive and procedural legality of any decision.
The word "substantive" is very important because the present system does not really permit third parties to evoke a review procedure in relation to the substance of planning decisions, even where they have an interest. But if a third party right of appeal—or third party rights in that sense—was to be introduced, a more streamlined and unified structure would be necessary in order to avoid what would simply be an addition to the delays of the planning system.
The fourth and final pertinent reason is the development of environmental controls. Existing structures would creak at any extension of powers. The speech of the noble and learned Lord, Lord Woolf, to which reference has already been made, identifies how traditional judicial review techniques—simply looking at whether a decision is unreasonable in the judicial review sense—prevent the courts being involved in a
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more thorough-going way in environmental decisions. My recent experience with the European Charter of Fundamental Rights has driven home to me how strong a demand there is from certain quarters for an increase in environmental rights, an increase in the justiciable rights of individuals. I suspect that that is a pressure that will become increasingly difficult to resist. Therefore, to put in place a structure that could effectively cope with that, having, as my noble friend identifies, a multi-disciplinary approach—in other words, other disciplines and not just lawyers involved—would be an important step.
I fully acknowledge that these are important, difficult and delicate issues. If these proposals were to go further, they would have to be resolved. This is not a simple administrative reorganisation, but it would be a radical restructuring, particularly because one is talking about the creation of new rights and new procedures. But the importance of the issue merits a wider public debate. Therefore, I congratulate my noble friend on initiating this short debate in order to provoke a wider public debate.
8.13 p.m.
Lord Goodhart: My Lords, I am grateful to the noble Lord, Lord Brennan, for raising this extremely interesting and important issue for debate this evening. There is no doubt that environmental law is a subject which is becoming increasingly important and front-line. My question is whether it is perhaps too important to be committed to a specialist court. Environmental issues arise in many different legal fields, most obviously perhaps in planning but also in health and safety matters, in transport in toxic tort, as the noble Lord, Lord Brennan, mentioned, and indeed, as we saw the other day in the Greenpeace GM crops case, in crime. Equally, there are probably few cases which involve environmental issues exclusively.
There is a serious argument that specialist courts are best left to deal with issues which cover a relatively narrow and largely self-contained field. The noble Lord, Lord Goldsmith, mentioned construction disputes and the well-known commercial court. There are many others such as patents, admiralty or, in the tax field, General and Special Commissioners of Income Tax.
There is a significant case for the setting up of a specialist planning court. The noble Lord, Lord Goldsmith, is right to say that there are powerful arguments for making the present planning inspectorate into a planning court, perhaps along the lines of the Special Commissioners of Income Tax. However, there are certain difficulties. Planning issues raise an increasingly uneasy mixture of policy and legal issues. The noble Lord, Lord Brennan, is right to say that those personally affected by a planning application should have the right to be heard at all stages of the process. But if the Government have decided that there should be, for example, 157,000 new houses in the county of Kent, is that a political or a legal issue? It is certainly not a question which is wholly environmental. The judges who decide a

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question of that kind need to be as skilled in judicial review and human rights law as in environmental law narrowly construed.
There are other reasons why I am hesitant to endorse the full proposals made by the noble Lord, Lord Brennan. If we send environmental issues to a specialist court we will reduce the level of expertise among non-specialist judges. In the tax field—with which I have some familiarity—the effect of having tax cases of great significance decided at first instance by the special commissions means that there are few judges who have or can acquire a significant knowledge of tax law.
There is also the problem that specialist courts, when one gets to the level of a High Court, tend to be centralised in London. That goes counter to what I think is the proper direction for less centralised justice. If I may, I should like to ask whether we have a legal system which is already too far centralised. We have a system where all the High Court judges are now based in London. Those judges not in the Chancery Division are expected to go on circuit for a period of 18 weeks. It is absurd that cities such as Newcastle, Leeds, Manchester, Birmingham and Cardiff do not have their own High Courts staffed by permanent resident High Court judges, rather than being served by assize judges who are, so to speak, bused down from London.
Furthermore, the present system is one which deters lawyers from accepting office as High Court judges. The lower retiring age for judges means judges are appointed at a younger age. With the older age nowadays for starting a family, that means that people are expected to go on the Bench at an age when they still have school-age children. That is a serious deterrent to accepting appointment to the High Court, particularly for women, of whom there are still far too few. Parents will not want to spend four months a year on circuit out of London. Nor will lawyers practising in the north or Wales want to accept appointments involving a move to London, especially if their spouses, as many do, have jobs locally which they want to keep. A decentralised system would enable us to get rid of judges' lodgings and the anachronistic flummery that goes with them.
Last, and far from least—indeed, most of all—a decentralised system would mean that more big civil cases could be tried outside London, to the convenience of the parties and the witnesses.
I recognise that what I have said goes well beyond the subject of the Question and I certainly do not expect the noble Lord, Lord Bach, to reply to my comments. But I believe that a main objection to a special environmental court is that it would increase the overcentralisation of our present legal system. That objection does not apply to the conversion of the planning inspectorate into something of the nature of a court akin to the Commissioners of Income Tax. The general commissioners are widely spread across the country and it would be possible to do the same thing with the planning inspectors. But it would be considerably better to have judges in all the major
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centres who know something about environmental law than to centralise environmental cases with a relatively small number of expert judges who are likely to be based in London, at least those at the High Court or appellate level.
For that reason, although there is a good deal to be said for the proposal, we need to start by walking before we run. What is important—in this I perhaps follow the noble Lord, Lord Goldsmith, rather than the noble Lord, Lord Brennan—is that we limit ourselves initially to dealing with the particular problems of the planning system rather than have something of the nature of a specialist, all-embracing environmental court which would take up issues that went far beyond the nature of the present planning system. Therefore, at present I can offer only qualified support to the proposals of the noble Lord, Lord Brennan. Having said that, I should like to express my considerable gratitude to him for raising this important subject for debate.
8.22 p.m.
Lord Kingsland: My Lords, I thank the noble Lord, Lord Brennan, for introducing a debate on this very important topic. I say right away that, broadly, I sympathise with the noble Lord's objective and the conclusions he has reached. But it is extremely important that we do not underestimate the difficulties we face in achieving that objective.
The most fundamental difficulty is that it will require the integration of environmental law and planning law under one system. I have always taken the view that the character of environmental law is very different from planning law. Planning law is about the exercise of broad discretion within the framework of government policies, laid down in guidelines and statutory guidance, in circumstances where, in the last resort, an appeal is successful only if the party exercising the discretion acts illegally.
By contrast, environmental law is much more like black letter law. Much of it derives from directives laid down in the European Community which are then unpacked in more detail at national level. In turn, the rules then become, for the party that is subject to them, very detailed scientific guidelines, setting down the limits of substances permitted to exist in the air or in water. Not only detailed but also very expensive expert evidence is required before the court can reach a conclusion. The noble Lord will know from his experience in a related area—the law of toxic torts—just how much scientific evidence is necessary before a court can reach a conclusion. In short, the exercise and practice of planning law is often different from the exercise and practice of environmental law. If we are to group them in a single system, we have to think carefully about how we can encompass both.
My second concern is the inadequacy of existing remedies. If we do not ensure that the remedies for environmental wrongs are improved at the same time as the new court structure is established, that structure will quickly become discredited. One of the main reasons that remedies are inadequate in the

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environment areas is that the European Community system, which is at the base of much of our environmental law, has not been implemented evenly by the member states. If the member states do not implement the law effectively, an individual who is adversely affected by an environmental decision or by the failure to implement an environmental rule has to make his own way in the courts.
In relation to European Community law, that requires falling back on the doctrine of direct effect. Our own judges have been extremely reluctant to apply the doctrine of direct effect with respect to environmental directives. Indeed, it is a difficult doctrine to apply to the environmental area where concepts of property rights and so forth are extremely elusive.
Moreover, we do not, as is the case with competition law in the European Community, have a regime which the Commission itself can enforce independently of the national courts. If European law is at the heart of our environmental law in the United Kingdom, it has provided us with inadequate instruments to make it work properly.
If an environmental authority fails to enforce an environmental law, an individual may seek judicial review of that authority. However, as noble Lords are fully aware, judicial review is an inadequate way of getting at environmental decision-making by regulatory authorities. It is very rare for a judge to allow cross-examination or discovery. Here, one is faced with the same problem one finds in planning law. It is not the merits of the issue but the legality which ultimately counts.
I derive some hope from the recently signed Aarhus Convention, to which the noble Lord, Lord Brennan, drew attention. That, more than a more liberal interpretation of Bryan by our courts under the Human Rights Act, is likely to lead to a real revolution in environmental enforcement.
I hope that noble Lords will forgive me if I turn briefly to two or three paragraphs of Article 9 of the convention, the article which deals with access to justice, in order to give your Lordships some idea of how dramatic the effect of the convention could be if it is properly, fairly, honestly and honourably implemented by the government of the day. Article 9.2 states:
"Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedure law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of any other relevant provisions of the Convention".
Paragraph 3 states:
"In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national
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law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene the provisions of its national law relating to the environment".
I conclude by quoting paragraph 4:
"In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article should be given or recorded in writing. Decisions of courts, and wherever possible of other bodies, shall be publicly accessible".
If properly implemented, this will give individuals direct access to the courts to deal with either the inadequate implementation of environmental regulations by public authorities or to attack, directly, environmental wrongs committed by individuals or companies. If the convention is implemented at the same time as the proposals put forward by the noble Lord, Lord Brennan, I believe that we shall have a real chance of establishing a truly credible system.
Finally, I turn to the problems raised by the noble Lord, Lord Goodhart. I have some sympathy with what he has said. At the moment, environmental law is applied in an extremely diverse way. Some of the heaviest responsibilities are borne by the magistrates' courts. In environmental prosecutions, quite significant and complex issues are capable of being heard by the magistrates. For example, under Part I of the Environmental Protection Act, disputed issues about whether a large industrial company has applied the right production technique at reasonable cost will be fought there. One can conceive of such a case, involving a great deal of expert evidence, taking many weeks or even months to determine.
It is equally true that, as regards the recently implemented Part IIA of the Environmental Protection Act in relation to contaminated land, questions about whether a landowner has brought a particular substance on to the land that has resulted in a significant risk or the possibility of a significant risk of contamination are ones of real complexity, involving, again, perhaps several weeks or months of hearing. Cases such as these will be heard in the magistrates' courts, manifesting local justice locally delivered.
Many people have criticised the fact that the previous government gave these heavy responsibilities to the magistrates' courts; but, on the other hand, I can well understand the argument put forward by the noble Lord, Lord Goodhart, that a great deal can be said for dealing with these issues in the places where the problems originally occurred. After all, that is the principle that lies behind planning inquiries. Why should it not be the principle that lies behind a new environment court as well? I do not see this as an insuperable barrier. I believe that it will be possible to develop a structure which has at its apex a single court, but which in fact works its way down so that local justice is, indeed, locally delivered.

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The noble Lord, Lord Goldsmith, was absolutely right when he said that there is growing interest in and concern about the effect of environmental wrongs on individuals' lives. I believe that those concerns will grow in importance over the next few years. The United Kingdom must respond appropriately. Once again, I thank the noble Lord, Lord Brennan, for raising this matter in your Lordships' House.
8.34 p.m.
Lord Bach: My Lords, I am grateful, as is my noble and learned friend the Lord Chancellor, to my noble friend for raising this subject. I am grateful, too, for the contributions made by other noble Lords this evening.
Debate is ongoing, not only in England and Wales but also internationally, about the optimum structures necessary for effective regulation and enforcement in the environmental field. This evening's debate, which alas has been too short, is a useful contribution to that wider discussion.
Let there be no doubt about this Government's commitment to environmental issues. The case for concern about environmental rights is compelling. Our environment affects all of us; we all share responsibility for the protection of the environment. The Government fully recognise the need for environmental rights and for citizens and the state to act upon their responsibilities to safeguard our environment.
In 1998 the United Kingdom signed the Aarhus Convention and is fully committed to ratification as quickly as possible. As has been said in the debate, the convention marks an important milestone in environmental rights. It aims at transparency in environmental decision-making and provides for improved access to environmental information and public participation.
One convention goal is to ensure, when sound environmental decisions are made through proper processes involving full public participation, that those decisions are then implemented and that environmental laws, plans and permits are adequately enforced. The convention requires that,
"members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of their national law relating to the environment".
In the United Kingdom we already implement this requirement in a variety of ways under a range of different Acts relating to environmental protection, land use planning and environmental health.
The Government support the "polluter pays" principle. An effective enforcement regime should ensure that no one should profit from breaking environmental protection law. As noble Lords will know, the European Commission has published a White Paper on liability for damage to the environment. There is now a debate on how to improve the implementation of the "polluter pays" principle.
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In launching the new Magistrates' Courts Sentencing Guidelines in March of this year, my noble and learned friend the Lord Chancellor said he was pleased that the guidelines highlighted environmental and health and safety cases and emphasised that the maximum fine (£20,000) should be used where appropriate. Those guidelines also include advice based on the seriousness of the offence to assist magistrates in determining whether this type of case should be heard in the magistrates' court or should be sent to the Crown Court.
This debate addresses whether we need to go further and establish an environmental court. The arguments in favour have been well put by my noble friend Lord Brennan. They are, first, that a new court would be a driver to a more proactive approach to environmental problems. Secondly, the conclusions of the European Environment Agency suggest that there has been little or insufficient development of policies to tackle key environmental problems. Thirdly, the constitutional changes, such as the implementation of the Human Rights Act, devolution and the Treaty of Amsterdam, will all work to bring environmental issues more to the fore. Lastly, the development of the environmental court concept in other European and Commonwealth jurisdictions leads in that direction.
My noble and learned friend does riot believe that at present there is any consensus among the higher judiciary or elsewhere for the establishment of an environmental court. That is not to say, however, that there may not be greater scope for ensuring that cases with a strong environmental element are tried by judges specialist in this area.
Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. Does the Minister believe that the fact that there is no consensus among the higher judiciary mean that the noble and learned Lord the Lord Chancellor is bound to do nothing about this matter?
Lord Bach: My Lords, I hope that the noble Lord will hear me out. Of course that does not mean to say that he is bound to do nothing, but it would be strange if my noble and learned friend were not to take considerable notice of that fact in this particular instance.
I am in trouble so far as concerns time, but I shall try to answer the noble Lord's next question.
Lord Kingsland: My Lords, does the noble Lord agree that there have been times in the recent past when the noble and learned Lord the Lord Chancellor did not take any notice whatever of the majority view of his brother judges both at first instance and in the Court of Appeal, most notably in relation to the Access to Justice Act?
Lord Bach: My Lords, I do not agree with the way in which the noble Lord puts his point. If he is trying to say that my noble and learned friend has an independent nature and will make up his mind on these important matters, of course he is absolutely right.

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Some proponents of an environmental court have suggested a tribunal model, encompassing civil, criminal and planning issues. In his report—which has been well quoted today—Professor Grant has suggested a number of models, some looking at a tribunal approach, others at reorganising the High Court. Some are based around the Planning Inspectorate. I do not propose to comment on those, pending the report on the Second Quinquennial Review of the Inspectorate.
There are, however, problems with a knee-jerk reaction to proposals for change. First, there needs to be careful consideration of the assumptions on which the models are based; secondly, account needs to be taken of the complex and changing context in which proposals might be implemented.
Perhaps I may briefly outline some of the issues. Is there a readily definable body of environmental law? What could be the impact of taking that out of its current context? Both these matters have been debated in part tonight.
It is far from clear that there is a consensus on the types of claim that might be included in any new jurisdiction. Indeed, the definition of environmental law for the purposes of a new court is unclear. The kind of claims put forward as "environmental" are disparate in nature. Some claims are currently heard in the Chancery and Queen's Bench Divisions, as well as within the Administrative Court. Similar claims are also dealt with in the Technology and Construction Court, as well as the lower courts. Magistrates' courts and the Crown Courts also deal with various environmental offences.
Some disputes which go through the tribunal system also have an environmental flavour. There is also the system of planning applications and appeals. Planning matters are very different from the prosecution of criminal and regulatory offences in the magistrates' courts and equally different from negligence and nuisance cases in the civil courts. Bundling them all together would inevitably affect the development of procedures to deal with them, particularly where civil and criminal remedies might be brought together. The creation of an apparently specialist jurisdiction, particularly where its definition is so uncertain, needs to be thought through with great care.
The consequential impact of separation on the quality of justice needs to be considered. The general law of contract and tort has relevance to environmental disputes as well as to other cases, while the possibility of an environmental gloss on claims not directed to the environmental court may well be lost. There would also be inevitable implications in terms of the recruitment and deployment of the judiciary, which would also carry implications for the wider administration of justice.
Arrangements are now in place in the courts to ensure that where planning appeals and applications for judicial review are being considered, the judge allocated to decide the case will usually have experience of litigation in that field. My noble and
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learned friend shares the general view of the senior judiciary that it would be detrimental to the civil justice system to allow an unnecessary growth of specialisation within the senior judiciary. On an informal level, the senior judiciary already bear in mind the suitability of individual judges for particularly complex cases when listing cases.
Proposals also need to be seen in the context of the programme of change the noble and learned Lord the Lord Chancellor has introduced across the civil, criminal and administrative justice system. The introduction of the civil procedure rules represents perhaps the most fundamental reform of civil procedure in the past 150 years, not least in the introduction of active judicial case management and greater uniformity and commonality of approach. These reforms have more recently been extended to the administrative court. Following the Bowman report, new rules for judicial review have been introduced, which have also been discussed today. My noble and learned friend has appointed a lead nominated judge with a view to strengthening further the expertise of the administrative court.
I should remind the House of the two important reviews that are currently being undertaken. Sir Robin Auld's criminal courts review and Sir Andrew Leggatt's review of tribunals—both recently established by the noble and learned Lord the Lord Chancellor—may also affect the way that environmental claims are dealt with. Any proposals for changing the current court structure—for that is what we are looking at rather than any changes to environmental protection and regulation—must be considered in that context.
If the Government were to agree to the establishment of a new and separate jurisdiction, we would need to have weighed very carefully the risk of increasing the cost and complexity in the simplest cases, particularly those handled in the magistrates' courts and the county court.
There does not seem to be any single environmental court model elsewhere, and such models that exist generally tend to reflect their origins.
As I said at the outset, the Government welcome the opportunity to debate this issue. We are not persuaded of the need for an environmental court, certainly not on its possible shape. Our discussions today have been part of a wide-ranging debate about the mechanisms necessary for countries to ensure effective environmental protection and enforcement, not least the role of courts and tribunals in this process.
I hope that I have set out some of the issues which the Government believe need to be addressed in that debate and the backdrop of radical change we have already set in train in the civil, criminal and administrative justice spheres. The Government maintain an open mind but we are not as yet persuaded that the case is made out.

Countryside and Rights of Way Bill
8.46 p.m.
House again in Committee.
Clause 48 [Restricted byways: power to amend existing legislation]:
Baroness Lockwood Baroness Lockwood moved Amendment No. 340:
Page 29, line 7, after ("byways") insert ("or as byways open to all traffic").
The noble Baroness said: In moving Amendment No. 340, I shall speak also to Amendment No. 367. Both amendments are concerned with procedures for appeal against closures or diversions of rights of way under Section 116 of the Highways Act 1980. Amendment No. 340 is concerned with byways and restricted byways; Amendment No. 637 is concerned with footpaths and bridleways.
The background to the amendments is that every year some hundreds of changes are made to rights of way, normally on the application of landowners. This usually involves volunteer workers and volunteer organisations making a case against the application in the public interest.
Local authorities, whose responsibility it is to deal with such changes to rights of way, have two courses open to them for dealing with closures or diversions. The first is to use the standard procedure whereby an order is made and objections are determined by an inspector asking for the advice of the Secretary of State. This is the Secretary of State's preferred course, and he has so advised local authorities. The second way—which, despite the advice of the Secretary of State, is still used by some local authorities—is by way of an application for an order in the magistrates' court.
Amendment No. 367 would have immediate effect in removing footpaths and bridleways from the jurisdiction of magistrates' courts. For some considerable time, voluntary organisations such as the Ramblers' Association, the Open Spaces Society and so on, have argued against this form of dealing with appeals. They have found that volunteer workers have had difficulty in presenting their case to the magistrates' court. Moreover, the wording of Section 116 is somewhat archaic and presents difficulty not only for voluntary organisations and volunteer workers, but for the magistrates' courts as well. On occasions, voluntary bodies have had recourse to the High Court, on appeal, when the magistrates' court had difficulty in following Section 116.
Amendment No. 340 is somewhat different in that it would not have immediate effect but gives the Secretary of State powers to issue regulations or orders covering this matter at a later date. If byways and restricted byways were immediately removed from the jurisdiction of Section 116, there would be no alternative procedure for dealing with appeals. Therefore, the amendment is worded so as to give the Secretary of State time to introduce at a later date, by way of regulation, further restrictions in relation to Section 116 to cover byways and extended byways and to look at the extension of Sections 118 and 119 to ensure that byways are covered by those two sections.
As I said, Section 116 is somewhat archaic. It is an historical anomaly and should be removed. I beg to move.
Baroness Byford: I rise to seek clarification in regard to one or two points in the amendment. I understood from the noble Baroness's introductory remarks that she was concerned that volunteer workers possibly felt that they were unequally placed to cope with putting forward their arguments as to why a particular path should remain open or closed as compared with the landlord. I shall give the noble Baroness the opportunity to respond.
The noble Baroness also indicated that the local authorities would take over the responsibility from magistrates. I am trying to follow her argument correctly. Does she have examples of cases where the Ramblers' Association and the Open Spaces Society have raised these issues with the magistrates' courts and found that they were not fairly dealt with? Perhaps she can indicate the proportion of cases where people felt that they had been successful and where they felt that they had not. This matter is a little unclear to me, and the point worried me immensely. I am not a JP, but I have friends who are. Whether they deal with this particular issue, I have no idea, nor have I had a chance to talk to them about it. Is the implication that JPs are somehow inadequate or that they are not doing their job properly and the noble Baroness believes that local authorities would be better at dealing with these matters? Perhaps she will clarify the point.
Baroness Lockwood: The alternative is not the local authorities; it is the usual statutory way of the Secretary of State hearing appeals through an inspector and submissions being made to the inspector. Certainly, I am not casting doubt on the ability of magistrates' courts. It is just that this is a rather strange and archaic piece of legislation with which, I am led to understand, both volunteer workers and the magistrates' courts have some difficulty in dealing.
Baroness Byford: I am grateful for that clarification. I am sorry; I was trying to follow the noble Baroness's argument logically. owever, HowvI have no problem in following the argument; however, I am still somewhat confused in that the noble Baroness has not answered my question as to how many cases have been brought which she felt were not dealt with clearly by magistrates and where groups might have been happier had their evidence been heard by the Secretary of State in appeals—presumably because it is a slightly more informal system. I should have thought that the cases would be judged in the same way. What I am searching for is the background or the statistics that form the basis for bringing these amendments forward.
Baroness Lockwood: I do not have any statistics. As I said at the outset, a large number of changes go through the courts throughout the year. It is the view of those who are making representations against the changes that it is much simpler and more straightforward to do so in the normal way whereby

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the Secretary of State receives the appeals and appoints an inspector to undertake a public hearing where evidence can be submitted either in writing or orally.
Baroness Miller of Chilthorne Domer: I have enormous sympathy with the voluntary sector in everything that it tries to do on the issue of rights of way. Certainly we should have a great deal of sympathy with the kind of thing that the noble Baroness seeks to achieve with her amendment, although I am not sure that this is necessarily the way to do it. Having listened, for example, to the complexity of the exchange between my noble friend Lady Scott and the noble Lord, Lord McIntosh, earlier on our Amendment No. 322A, I can see why the voluntary sector might well feel that a simplified method is desirable. Although I am sure that the Government have their reasons, in Part II of the Bill we are still stuck with an essentially difficult process every step of the way. It seems to me that the kind of procedure used to develop local plans is much more streamlined and inclusive of the public and that it is much easier to make your case if you are from the voluntary sector.
At this stage, I should like to read the noble Baroness's remarks. As so much of the rights of way improvement work will fall on the voluntary sector, we should like to take seriously any practical suggestions to help the sector.
Lord Whitty: Perhaps I may deal first with the main part of my noble friend's Amendment No. 367. The main burden of the amendment is to remove the procedure from the magistrates' courts as an option.
The question of whether the powers under Section 116 should be removed from the magistrates' courts was covered in our consultation exercise, but the proposal was, generally speaking, not supported. It was opposed in particular by the local authorities. We concluded that there could, therefore, well be cases where the powers of the magistrates' courts, which are slightly different from those available to local authorities, under Sections 118 and 119 of the 1980 Act could still be useful.
Therefore, although the Government agree with my noble friend that, in general, local authorities should use powers under Sections 118 and 119, rather than seek an order from a magistrates' court—and we shall continue to emphasise that point in our advice to local authorities—we have been persuaded, mainly by the local authorities themselves, that it would be sensible to leave the court procedure in place for particular cases.
As my noble friend said, it is true that the role of the magistrates' court in the closure and diversion of highways is, if you like, a relic of history; indeed, it goes back a long way. However, in turn, that means that it has wider implications than the provisions contained in this part of the Bill. That may be a matter for future review of highway law generally, rather than dealing with it separately at this point. Although I
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understand what my noble friend is seeking to achieve, I hope that she will agree that we should not entirely exclude the magistrates' court procedure at this stage.
As I understand Amendment No. 340, my noble friend is really trying to ensure some extra flexibility for the Secretary of State. However, I am not sure that this amendment would achieve that aim, because it would apply the regulation-making powers of Clause 48 to BOATs—byways open to all traffic—as well as to restricted byways, thereby extending the powers of the Secretary of State. We do not believe that that is necessary for BOATs. They have been on the statute book for over 30 years. They carry full vehicular rights and they differ from other minor roads only in that their usefulness to walkers and horse riders requires them to be recorded as such on definitive maps.
However, restricted byways are entirely new. The only reason the Government have introduced the powers in Clause 48 is that there is not enough time to consider all the amendments to existing legislation that might be necessary in relation to restricted byways and include them in the Bill. Therefore, this is a prudent "buying time" measure to ensure that current legislation operates effectively in relation to a new kind of highway. We believe that the rules relating to BOATs are sufficient to provide the Secretary of State with the degree of flexibility that my noble friend seeks. I hope, therefore, that she will not pursue her amendment.
9 p.m.
Baroness Lockwood: I thank my noble friend for his reply. I am glad that the Secretary of State will continue to give firm advice to local authorities on the issue. However, I am not quite happy with the fact that the Government have decided to accept the view of local authorities, which want to retain the right to resort to the magistrates' court. For example, at present, the Section 116 procedure is often used to seek closure of paths for crime prevention reasons. But there are new powers under Clause 53 and Schedule 6 to the Bill to enable orders to be made to close or divert paths for similar reasons. That process would be dealt with by the Secretary of State and the inspectorate, rather than the magistrates' court. In the interests of some uniformity and simplicity, surely it would be useful to make byways and restricted byways subject to the same procedure. Nevertheless, I shall read my noble friend's response with care. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 341:
Page 29, line 11, at end insert ("or subsection (3A)(a)").
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 342 to 349. These amendments relate to the powers in Clause 48, which enable the Secretary of State to make regulations amending a wide range of primary and secondary legislation to take account of the creation of restricted byways as a new category

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of highway. There is a large body of legislation relating to highways. It would be impossible to review all the provisions and incorporate all the necessary amendments on the face of the Bill. Because Clause 48 is a wide-ranging power, the Government initially took the view that it should be a matter for the Secretary of State alone, subject to the approval of both Houses.
However, after discussion with the National Assembly for Wales, we have reviewed our position. We now believe that the Assembly should have appropriate powers in relation to Clause 48. Amendments Nos. 343 and 347 would enable the assembly to make regulations under Clause 48 amending local and private Acts that relate only to Wales and amending any secondary legislation that the Assembly currently has the power to amend or revoke. Amendment No. 344 has three further purposes. First, it would require the Secretary of State to consult the Assembly before using his powers under Clause 48 to make provisions having effect in relation to Wales.
Secondly, the amendment would prevent the Secretary of State from using Clause 48 expressly to amend or revoke secondary legislation made by the Assembly without its consent. Thirdly, the amendment would make express provision for the Assembly to submit proposals to the Secretary of State for exercising his powers under Clause 48.
Finally, when laying regulations before Parliament, Amendment No. 349 would require the Secretary of State to lay before each House a document giving details of any consultations with the National Assembly required by Amendment No. 344 and setting out any representations received from the Assembly. Amendment No. 341, and the remaining amendments in this group, are consequential. I beg to move.
Lord Roberts of Conwy: I am delighted to hear that the Government have decided to review their original proposals, not least because I can tell the Minister, who I know is always anxious to receive information about what goes on in the Principality, that there are many people in Wales—indeed, many organisations, ranging from the National Farmers Union and the Farmers Union of Wales to the Country Landowners' Association, and so on—who are relying upon the Assembly in some way to correct anything that may be faulty as far as they are concerned in primary legislation passed by this Parliament.
The Government are absolutely right to say that they will consult the Assembly. The question arises as to what form this consultation will take. We know that devolution is a comparatively new development, that matters have not been finalised and that many developments are still open, as it were, to further development. However, there is the question of the form that the consultation will take. The Assembly is an executive body, but it has a Cabinet. It is also driven by a committee system. It is not clear to me as to who will be consulted. Will it be the Labour-led Cabinet, or the committee system, which consists of members of
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other parties too? Some Members of the Committee will be aware that that Cabinet may well change because there is a proposal to include the Liberals in it. That would make it into a different coalition from the system that we have had before.
This matter concerns who will be consulted. Whose views will be taken into account? We hope that a variety of views from different parties in the Assembly—I repeat that the Assembly is an executive body—will be heard and reported upon. Amendment No. 349 intrigues me. It reads:
"Where the Secretary of State lays before Parliament the draft of an instrument containing regulations … he shall also lay before each House of Parliament a document giving details of the consultation".
I have spoken of that consultation and expressed the hope that that document will contain a variety of views as befits consultation with an executive body, which is what the National Assembly for Wales is, unlike the Scottish Parliament. As I say, we hope to see a variety of views expressed as a result of that consultation.
However, the amendment further states,
"and setting out any representations received from the Assembly".
We know that representations can mean objections. What will happen if objections are expressed by different members of the Assembly and different political parties represented in the Assembly, which is an executive body as I have said? At the end of the day, will the Government override the consultation and the representations received from the Assembly? It seems to me that that is a crucial point. I know that it is not easy for the noble Baroness to reply immediately, but I know that she will do the best she can, which is always more than acceptable. There is a real question in my mind as to what happens if the Assembly makes representations that are not consistent with the wishes of the Government. At the end of the day, do the Government have the power to override the Assembly and, in other words, tell it what to do?
Lord Jopling: There is another aspect of this group of amendments which bothers me. My concern stems from the remarks of my noble friend Lord Roberts. These amendments give more powers to the National Assembly for Wales. Clause 48 refers to restricted byways. When there is a proposal to amend existing legislation, what happens about highways which cross the border between Wales and England? The National Assembly for Wales may well have strong views about what should be done with regard to amending existing legislation on a restricted byway on the Welsh side of the border. Nothing in this group of amendments gives a duty to those concerned on the Welsh side to consult with people on the English side where the byway may pass from Wales into England.
The Government are amending the Bill by this group of amendments. There should be provision for consultation and attempts to reach agreement between the bodies of the National Assembly for Wales which consider these matters and the relevant authorities on the English side of the border. Nothing in this group of amendments deals with that point.

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It is an important matter. I understand that difficulties may arise on this point in practice. Therefore I hope that, when the Minister replies, the noble Baroness will explain what will happen with a restricted byway which crosses from Wales into England.
9.15 p.m.
Baroness Byford: I take the points raised by my noble friends Lord Roberts and Lord Jopling. One could well have two different systems along the same pathway. I am sure that that is not the Government's intention.
I have two simple questions. As regards the proposed consultation, is there any time schedule to which the Government are working? How long will the various bodies have to consult? When they have consulted, to whom do they come back? It is not clear in this clause.
My noble friend raised the question of the make-up of the National Assembly for Wales. He knows far more about it than I shall ever attempt to know. It is important that we understand who at the end of the day makes the decision on behalf of that assembly. Again, that is not clear.
Mine are simple and minor points. If one is going to consult again, how long will the consultation last? When the bodies have consulted, to whom do their conclusions come back? Who can override their views? Do their conclusions end up with the Secretary of State? These are practical issues on which we should be grateful for guidance.
The Lord Bishop of Hereford: I declare an interest as the current president of the Offa's Dyke Path Association. The noble Baroness, Lady Byford, says that there might be problems. There are considerable problems as regards who is responsible for upkeep or who takes certain financial or administrative responsibilities, as the Offa's Dyke path meanders between England and Wales. Some local authorities are more generous than others. Some have their own staff to undertake maintenance and upkeep. Others devolve responsibility to different bodies. It is confusing for the lengthmen, the archaeologists and others concerned with the upkeep of this path. I believe that the Bill will increase the number of cases where that confusion already exists. I fear that it will become worse.
Baroness Farrington of Ribbleton: Perhaps I may say to the noble Lord, Lord Jopling, and the noble Baroness, Lady Byford, that the answer about where the final decision is taken at the end of the process is, here in Parliament, through the process of affirmative orders being laid before Parliament, except in those areas where Parliament has decreed that it would be entirely compatible with the powers and remit of the National Assembly for Wales for the assembly to make those decisions.
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Cross-border difficulties, including the issue that the right reverend Prelate the Bishop of Hereford raised, relate to two types of devolution: the historical devolution of powers and duties to local authorities in England and Wales; and the historical situation in Wales combined with the recent devolution to the National Assembly. There are always difficulties over whether certain features should be taken away from local government completely and transferred to a single body, cutting out local views. I am sure that among your Lordships, as elsewhere, there is a range of views, from those who argue that the contribution of local government has led to marked innovations and improvements in services—albeit on a differential basis, because different authorities have been involved—through to those who believe that the same pattern should be applied everywhere, even if it means forgoing innovation. We shall have to continue to look at that.
The noble Lord, Lord Jopling, asked about what happens when borders are crossed. The situation is very little different from that of the M4, the bridges that cross from England to Wales or the roads that cross from England to Scotland. Many decisions will have to be taken on how this wholly new category of highway should be treated under various enactments and whether particular provisions should apply. We need adequate consultation on the basic principles. Joint agreements will be needed on the policies that will apply on both sides of the border.
The Government and Parliament should retain those powers that could give rise to amendments to a wide range of legislation and those that could affect non-devolved areas, such as possible amendments to the criminal law relating to road traffic and highways.
The noble Lord, Lord Roberts of Conwy, asked about who speaks for the Assembly and kindly offered to bring to the House, and to me in particular, news of what was being said in the Principality. I am extremely grateful to him, but I assure him that I have my lines of communication and I spend quite a lot of time in the Principality. People in the Principality never hesitate to put their views across.
The Government consult the First Secretary. Tempting though the noble Lord's suggestion is that I ought to start to discuss, on behalf of the Government, how the First Secretary consults the Assembly and distils the view of the majority, I fear that this may be where angels fear to tread. The noble Lord and I agree totally that if the views of the majority of Members of the Assembly, which any First Secretary would be wise to heed when speaking for the Assembly, did not represent the views of all Members, those whose views were in a minority would not be backward in making certain that we were aware of them in looking at the orders before Parliament.
However, I believe that, in suggesting that government should become involved in assessing the minority views within the Assembly, the noble Lord, Lord Roberts, tempts me down a primrose path that leads the wrong way. I fear that he is aware of that. I am sure that he would not have raised the question

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in quite that way had the majority view been that of the Conservative Assembly Members. Perhaps I am wrong and malign the noble Lord.
Baroness Byford: Perhaps the noble Baroness will give way. I fear that I cannot let that pass. I believe that the question raised by my noble friend is genuine. Obviously, if the Government want consultation to take place then the First Secretary, whose responsibility we now know it will be, will have to take into account the many varying views. I know that my noble friend will speak for himself; he has never been backward at doing that. However, speaking as an amateur by comparison, I am struck by the thought that he may find himself in a dilemma. He may well find himself wanting to follow one path, whereas the majority view may want to follow another.
Baroness Farrington of Ribbleton: That is the structure of devolved government which applies in Wales. The First Secretary is accountable to other Members of the Assembly and to the people of Wales for the way in which he achieves that. It is not for us to comment on the process whereby he achieves a way of speaking for the majority view and for the Assembly in those circumstances. I believe that an attempt is being made to put forward the view that it will not be possible to achieve consensus and agreement. We do not accept that that is likely.
I was asked about time consultation. The time taken on consultation is the same as in other areas. It is impossible to lay down in legislation the type of detailed constraints on time for consultation that I believe were sought in the question. We shall try to ensure that we are fair and that common sense is used. Ultimately, it will be for Parliament to judge that adequate participation has taken place.
I believe that I have covered the points raised by Members of the Committee. If I have not, I have no doubt that they will press me further. I hope that the Committee will agree the amendment.
Lord Northbrook: Before the Minister sits down, perhaps I may seek clarification. I may have misunderstood what she said with regard to representations received from the Assembly. Did she say that she would not include the minority views or did she say that the whole ambit of views would be taken into account?
Baroness Farrington of Ribbleton: I said neither; I said that the form in which the views of the Assembly were expressed was a matter for the Assembly. However, I said that I had no doubt that, were the Assembly majority view to be expressed and for there to be an alternative minority view, my experience of politicians in Wales leads me to believe that people in both Houses would be in little doubt that a further minority view existed. I say that based simply on experience. The formal and only position that the Government can take is to listen to the First Secretary speaking for the Assembly. Does that clarify the matter?
9.30 p.m.
Lord Roberts of Conwy: I am sorry if the noble Baroness thought that I was seeking to mislead her. I was simply trying to invite her on to my open boat, which is the byway open to all traffic, when it conies to discussion of the Welsh Assembly and its future.
Baroness Farrington of Ribbleton: I fear that the noble Lord, Lord Roberts of Conwy, had his hands on both of the oars.
Lord Roberts of Conwy: I shall not pursue that line. The noble Baroness said that the ultimate decision would be taken here in Parliament. I understand that. It is shorthand for the fact that the ultimate decision lies with the Government and the Government's decision being approved by Parliament. I have no objection whatever to that.
On the matter of consultation, the Minister said that the consultation was limited to consultation within government, in effect, and with the First Secretary of the Welsh Assembly. I suggest to the Minister that that is an extremely autocratic procedure. It is hardly democratic if all that has to happen by way of consultation is for the Secretary of State to talk to his good friend the First Secretary of the Welsh Assembly. And that amounts to consultation which is then reported to Parliament! I beg to differ and say that that is a travesty of consultation.
I certainly do not want to involve the Committee in further detailed discussions of this point. But the power resides in the Assembly, which is an executive body with its own Cabinet and committee system and so on. It is rather like a super-county council. That is where the power lies. To say that consultation on the part of the Secretary of State is sufficient if it is limited to the First Secretary is, to my mind, really begging the question.
I fire this shot across the bows of our boat: there are many people in Wales, particularly in the academic world, who now believe that the Assembly is inadequately equipped and that it should have legislative power. I warn the Minister that the current position, when we say that consultation involves simply the First Secretary, is power to their elbow. I am sorry to have mixed my metaphors but what mean to say is that our boat may very well have not only a shot across the bows but also have a shot amidships if that message gets home.
I do not want to take the matter too far but the Minister will know that there has been discussion about a protocol which would govern the relationships between the Assembly and government and Parliament here at Westminster. We know that that protocol has been in draft for a number of months but it has not been finalised. The Government control the Assembly at the moment, but they may well not do for long because they will be dependent on the Liberal Democrats if their deal goes through. The Government control it now, and they should finalise

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that procedure whereby the Assembly is consulted by the Government and its views represented in this Parliament at Westminster.
Baroness Farrington of Ribbleton: First, the protocol governs the way the consultation occurs between the two bodies; it is not about the internal decisions. I assure the noble Lord, Lord Roberts, that I did not say that the Government simply consult the First Secretary. If I was heard to say that, perhaps I expressed myself badly. I said that the Government consult the First Secretary: it is the responsibility of the First Secretary and the Assembly to determine the way in which the views of the Assembly are expressed by the First Secretary.
The noble Lord referred to the issue of who controls the Assembly. I find the use of the term "control" slightly old-fashioned. I prefer "administer" or "govern". I do not like concepts of control. The decisions that are taken within the Assembly, such as who forms the executive, who is accountable and how people are consulted, are a matter for the First Secretary. I would certainly not advocate any First Secretary being told by Westminster how to approach that; even less the Members of the Assembly being told how they formulated their views.
The question of minority views is a matter for the procedure and process adopted for the internal consultation within the Welsh Assembly as to what their views are. That is a matter for them. The only point I made is that I believe that the least helpful way would he for us to speak from here about the way the Welsh conduct their affairs within their Assembly.
Lord Roberts of Conwy: Before the noble Baroness sits down, perhaps she could try to answer a key question which has arisen in the course of our debate. Let us suppose that the Assembly takes a quite different view from the Government in its representations which this place and the Government will receive from the Assembly. Who shall prevail?
Baroness Farrington of Ribbleton: That will depend on the circumstances and on the judgments which have to be made. Some issues on which the Assembly will be consulted are matters which are wholly reserved to Westminster. I refer, for example, to criminal law. It is possible that the Assembly will have a view on that. There will be other matters that are totally within the powers and jurisdiction of the Assembly and other matters on which there will have to be a matter of common agreement.
I refer the noble Lord, Lord Roberts, to the fact that the same applies to points of contact in the north between England and Scotland where the jurisdiction and responsibility for roads are different both sides of the border. That is a feature of devolution. Those that support it welcome it and have faith in the process. Those who wish to undermine it do not have the same view.
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Perhaps I may ask the noble Lord whether all these questions would be put were it to be the vote of the people of Wales that the majority of Members of the Assembly were Conservatives.
Baroness Byford: In responding to my question on the time factor, the Minister indicated that that would be flexible. I understand that the normal procedure is a minimum of eight weeks. Perhaps the Minister could confirm that. In view of the difficulties about which the right reverend Prelate the Bishop of Hereford spoke earlier, I am slightly anxious that, should the Assembly decide to keep the time factor to a minimum, that will not be long enough. There are present ongoing problems, let alone problems which may occur in future. I wonder whether she could clarify the position.
Baroness Carnegy of Lour: Before the noble Baroness replies, it is precisely because of what might happen if the majority opinion in the Welsh Assembly was different to the majority in Parliament, that my noble friend's questions are so important. The problem arises if there is a disagreement. It seems that we are setting up a confrontational situation if the Welsh Assembly and Westminster have different political majorities. So, with great respect, the noble Baroness ought not to talk as she did.
Baroness Farrington of Ribbleton: I am sorry if the noble Baroness, Lady Carnegy of Lour, thinks that. I believe the opposite to be the case. It is important to recognise that devolution exists. It is important also to recognise that the Government and those who support devolution expect there to be reason on both sides and that people will seek to agree.
I was not implying in any way that, were the majority of the Members of the Assembly to be Conservative, it would be impossible to reach agreement with them. I find the Welsh to be reasonable, even when they unreasonably vote Conservative. It is extremely rare for the Welsh to vote Conservative but they have been known to do so.
In response to the noble Baroness, Lady Byford, with regard to the issue of time and consultation, her reference is accurate in the majority of cases and in this case it would be a formal process laid down by Parliament. As she rightly said, it has a time-scale and we want to retain enough flexibility to ensure that the First Secretary for the Assembly was satisfied that, covering a specific period of time, he had had adequate time to discuss matters within the Assembly. Therefore, we would not want to lay down an absolutely rigid time-scale because it could be during a summer period or something of that nature.
This has been an important debate. I fear that those of us who support devolution are still experiencing a gap from those who are not totally confident in the outcome.
Lord Roberts of Conwy: Perhaps I may just make the point that I am not concerned with party political banter across the Floor of this Chamber. However,

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I am concerned with the constitutional position. Members on the Benches opposite should be similarly concerned.
Baroness Farrington of Ribbleton: I am sorry if anything I said seems to imply that I do not take this matter seriously; I do. I merely stress that internal consultation within the Assembly is not a matter for Westminster; it is a matter for the Assembly.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 342 to 349:
Page 29, line 12, leave out ("subsection (1)") and insert ("this section").
Page 29, line 14, at end insert—
("relevant Welsh provision" means a provision contained —

(a) in a local or private Act passed before or in the same Session as this Act and relating only to areas in Wales, or

(b) in any subordinate legislation which was made before the passing of this Act and which the National Assembly for Wales has power to amend or revoke as respects Wales.").

Page 29, line 14, at end insert—
("(2A) In exercising the power to make regulations under subsection (1), the Secretary of State—

(a) may not make provision which has effect in relation to Wales unless he has consulted the National Assembly for Wales, and

(b) may not without the consent of the National Assembly for Wales make any provision which (otherwise than merely by virtue of the amendment or repeal of a provision contained in an Act) amends or revokes subordinate legislation made by the Assembly.

(2B) The National Assembly for Wales may submit to the Secretary of State proposals for the exercise by the Secretary of State of the power conferred by subsection (1).").
Page 29, line 15, leave out ("this section") and insert ("subsection (1)").
Page 29, line 16, leave out from beginning to ("even") and insert ("relevant provision").
Page 29, line 17, at end insert—
("(3A) As respects Wales, the National Assembly for Wales may by regulations—

(a) provide for any relevant Welsh provision which relates —

(i) to highways or highways of a particular description,

(ii) to things done on or in connection with highways or highways of a particular description, or

(iii) to the creation, stopping up or diversion of highways or highways of a particular description,

not to apply, or to apply with or without modification, in relation to restricted byways or to ways shown in a definitive map and statement as restricted byways, and

(b) make in any relevant Welsh provision such amendments, repeals or revocations as appear to the Assembly appropriate in consequence of the coming into force of sections 43 to 46 or provision made by virtue of subsection (1)(a) or paragraph (a).").

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Page 29, line 19, after ("made") insert ("by the Secretary of State").
Page 29, line 21, at end insert—
("(5) Where the Secretary of State lays before Parliament the draft of an instrument containing regulations under subsection (1) in respect of which consultation with the National Assembly for Wales is required by subsection (2A)(a), he shall also lay before each House of Parliament a document giving details of the consultation and setting out any representations received from the Assembly.").

On Question, amendments agreed to.
Clause 48, as amended, agreed to.
Clause 49 [Extinguishment of unrecorded rights of way]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 350:
Page 29, line 30, after ("All") insert ("public").
The noble Lord said: In moving Amendment No. 350, I shall speak also to Amendments Nos. 351 to 356. These are technical amendments relating to Clause 49 which provides that footpaths and bridleways created before 1949 which have not been recorded on definitive maps by the cut-off date specified in Clause 52 shall be extinguished. Amendment No. 350 would ensure that no private rights of way—rights of way held by individuals or groups of individuals rather than the general public—are extinguished by Clause 49. It is public rights of way which definitive maps seek to record.
Amendments Nos. 351 to 354 relate to the case where a way shown on a definitive map as footpath, bridleway or restricted byway may have higher rights over it. Clause 49 also provides for the extinguishment of any such higher rights which were created before 1949 but which have not been recorded by the cut-off date. In other words, if a highway shown on a definitive map as a bridleway has pre-1949 vehicular rights over it, those vehicular rights will be extinguished on the cut-off date if the definitive map has not been modified to show the way as a byway open to all traffic. The bridleway rights would remain.
Amendments Nos. 351 to 354 deal with the situation where unrecorded higher rights exist over a highway which, although still shown on a definitive, map on the cut-off date, has been so altered as to be no longer eligible for recording as a right of way. The amendments would ensure that those higher rights would not be extinguished. For example, a highway which is, in fact, a carriageway but which is shown on a map as a bridleway may not be capable of being recorded as a byway open to all traffic because it does not meet the definition of BOAT in the Wildlife and Countryside Act. It is not the function of definitive maps to record all vehicular highways, only those which are mainly suitable for walkers and horse riders. Clauses 49 to 52 apply only to highways which are required to be recorded in definitive maps. We do not want to extinguish rights which cannot be so recorded.
Amendments Nos. 355 and 356 clarify the intention that, for the purposes of Clause 49, a footpath or bridleway which was created before 1949 shall be treated as such, even though it may have been diverted, widened or extended after that time. I beg to move.
On Question, amendment agreed to.
9.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 351 to 357:
Page 29, line 39, leave out from ("over") to ("is") and insert ("a bridleway, restricted byway or byway open to all traffic which").
Page 29, line 41, leave out from ("along") to ("is") in line 42 and insert ("a bridleway, restricted byway or byway open to all traffic which").
Page 29, line 44, leave out from ("over") to ("is") in line 45 and insert ("a restricted byway or byway open to all traffic which").
Page 30, line 1, leave out from ("over") to ("is") in line 2 and insert ("a byway open to all traffic which").
Page 30, line 7, leave out from ("whether") to ("for") in line 11 and insert ("any part of a highway was on 1st January 1949 a footpath or bridleway, or
(b)")
Page 30, line 12, leave out from first ("over") to ("was") and insert ("any part of a highway").
Page 30, line 25, leave out subsection (10).
On Question, amendments agreed to.
Clause 49, as amended, agreed to.
[Amendment No. 357A not moved.]
Clause 50 [Excepted highways and rights of way]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 358:
Page 30, line 38, leave out ("not comprised in the same") and insert ("constituting or comprised in another").
The noble Lord said: In moving Amendment No. 358, I shall speak also to Amendments Nos. 359 and 360. These are technical amendments to Clause 50 which provides exceptions to the circumstances in which Clause 49 will operate to extinguish certain historic rights of way. Among these are footpaths and bridleways which run beside the carriageway.
As the Bill presently stands, it suffers from the minor ambiguity that "carriageway" may not mean a carriageway which is a highway. Amendment No. 358 is designed to put this right.
Amendment No. 360 is designed to simplify the language of Clause 50(5). Amendment No. 359 corrects a minor error in Clause 50(3)(a) where reference is made to "excluded highway". It should state "excepted highway". I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 359 and 360:
Page 31, line 24, leave out ("excluded") and insert ("excepted").
Page 31, line 32, leave out ("the whole or part of a way") and insert ("land").
On Question, amendments agreed to.
Clause 50, as amended, agreed to.
Baroness Byford Baroness Byford moved Amendment No. 360A:
After Clause 50, insert the following new clause—

Countryside and Rights of Way Bill

  VEHICULAR RIGHTS
  (" —(1) Any public vehicular rights that exist over a way that—

  (a) does not appear on the definitive map as a byway open to all traffic; or

  (b) has not been used by the public at large with vehicles at any point between the commencement of this Part of this Act and the cut-off date,

  shall be extinguished.

  (2) Any owner or lessee of premises adjoining or adjacent to the way shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the way.").

  The noble Baroness said: The noble Lord, Lord Williams of Elvel, is not in his seat but he may have realised why, although this amendment is similar to one he moved earlier, I decided to take it separately.
  There is a significant problem where historical routes, not used in living memory and possibly showing no physical trace on the ground, can be required to be opened to public vehicles. Someone can argue, for example, that an enclosure award shows that a carriageway was created 200 years ago—although all of us know that there were no motor vehicles 200 years ago. If it can be shown on the balance of probabilities that such a right exists the route can be added to the definitive map as a byway that is open to all traffic. That establishes that it is open as of right to vehicles, even if there has been no vehicular right in the past. That is the cause of much conflict between vehicle groups, other user groups and occupiers of the land.
  It appears that the definitive map cut-off provisions in Clauses 49 to 52 of the Bill cannot easily be applied to tackle the problem because there is an element of user in the definition of a BOAT. A BOAT is a special type of carriageway in that it carries vehicle rights but is used mainly for the purposes for which footpaths and bridleways are used; for example, walking and horse riding. Because of that element of user in the definition there is a need for an alternative approach which is of equal application to BOATs and other minor carriageways—often unsurfaced and commonly termed "unclassified carriage roads"—that carry full vehicular rights but are not used mainly by walkers and horse riders.
  One approach to the solution, while preserving all vehicular routes relied upon, is to extinguish public vehicular rights over routes which have not been used by the public at large with vehicles between the date that the legislation comes into force and the cut-off date and do not appear on the definitive map of byways. After the cut-off date, if the right of the public to use a way with vehicles was challenged, which would be unlikely on regularly used ways but impossible over ways recorded as byways, the users would have to provide evidence of both public vehicular rights and

  117
  use by the public at large—in other words, more than one or two individuals—with vehicles between 2001 and 2006. Such an approach means that, come 2026, any rights would be extinguished only where that use could not be shown and a claim had not been successfully made to add the path to the map as a byway on the basis of any evidence. The rights extinguished would be historical rights only. Minor roads, UCRs, which continued to be used would be protected from extinguishment as any challenge to their status could be rebutted with evidence of use after 2001.
  Subsection (2) acts to protect vehicular access to properties served by any public vehicular route subject to extinguishment. That preserves the status quo for all landowners, both the frontagers and the owners of the subsoil, as no new rights would be created, the rights of frontagers being merely preserved in the form of a private rather than public vehicular right of way. I beg to move.
  Lord McIntosh of Haringey: I congratulate the noble Baroness, Lady Byford. This amendment is a brave attempt to deal with an intractable problem. The amendment would appear to operate to extinguish all public vehicular rights of way over any highway that is not recorded on a definitive map as a byway open to all traffic. It specifies that any public vehicular rights that exist over a way that does not appear on the definitive map as a byway open to all traffic or as not being used by the public at large between commencement and the cut-off date shall be extinguished.
  The amendment appears to provide that, irrespective of whether vehicular rights are recordable on a definitive map as a BOAT, they ought to be extinguished. For example, the provision as drafted would cover cycle tracks which are not recordable on a definitive map and would operate to extinguish the public's right to ride pedal cycles over bridleways, as well as the new rights to drive non-mechanically propelled vehicles over restricted byways. Another problem is that it may well extend to trunk roads and motorways. We do not believe that it is intended to do that, but we believe that "or" should be replaced by "and".
  The amendment seeks to find a way round the problem of how to deal with unrecorded vehicular rights of way after the cut-off date by limiting its operation to extinguishing only those vehicular rights that have not been used by the public at large between commencement and the cut-off date. That is the core of the proposal. However, it does not distinguish between pre-1949 rights of way and rights of way created after that date. It only extinguishes vehicular rights and leaves other rights of way whether or not they are recorded.
  The core of the problem is that byways open to all traffic are not defined solely by the rights attached to them. That is where they differ from footpaths, bridleways and, under the Bill, restricted byways. The reason for that is a simple one: BOATs are full carriageways but definitive maps were never intended
  118
  to record all carriageways, only those which are particularly suitable for walkers and horse riders. So the Wildlife and Countryside Act defines a BOAT in relation not only to the vehicular rights over it but also by reference to its character as a highway that is likely to be used more by horse riders or walkers.
  So distinguishing between a BOAT and other unclassified roads—there are 113,000 miles of unclassified roads in this country—requires an investigation of each one on a case-by-case basis. That is the problem with a blanket extinguishment of unrecorded BOATs. How does one ensure that the unclassified roads which make up over half of all roads in England and Wales are not extinguished as well? I confess that we do not know the answer to that problem. I should not be saying that, should I? That is why there is no provision in the Bill for extinguishing public vehicular rights of way over any hitherto undiscovered byway open to all traffic which is not shown on a definitive map in any form at the cut-off date.
  The Bill does provide for the extinguishment of any unrecorded pre-1949 higher rights over ways which are shown on definitive maps as footpaths, bridleways and restricted byways at the cut-off date. So it already goes some significant way in dealing with the aims behind the amendment, which only operates to extinguish public vehicular rights of way.
  Amendment No. 360A is a brave attempt to find a solution to the problem. It seeks to provide for the extinguishment of all public vehicular rights of way over any highway, including motorways, if these are not recorded on a definitive map at the cut-off date. It then excludes from the provision any road which has not been used by the general public at any point between commencement of the cut-off date provisions and the cut-off date itself. Finally, it seeks to avoid problems analogous to those which some people have in gaining access to their properties over common land by giving all owners of premises along an extinguished way the right to drive on it.
  We do not believe that the amendment provides a satisfactory solution because it would still require a case by case examination of every vehicular right of way which was likely to be caught by it. It would need to be decided whether a highway was extinguished or not.
  We do not believe that a user test would, in practice, be a workable solution. Apart from generating a good deal of additional work for the courts, to decide disputes about whether use had been by the public at large or by too few individuals it would only be prudent to ensure that local highway authorities monitor use. But that would be an enormous task.
  Baroness Scott of Needham Market: This is a worrying area for local authorities and local communities. Certainly when I chaired the rights of way committee in Suffolk, the issue of RUPPs being reclassified as byways open to all traffic was one which generated more anxiety among local people than any other. In the absence of any other provision, we tended

  119
  to fall back on the use of traffic regulation orders. At the moment they appear to be the only ray of hope that one can offer. However, the process is very tedious, bureaucratic, long-winded and expensive. Perhaps the Government will consider streamlining and making the TRO procedure more user-friendly, so that if the amendment tabled by the noble Baroness is not possible, there is at least a practical way that we may begin to address this problem.
  Lord McIntosh of Haringey: Perhaps we can have a meeting between now and Report. Will the noble Baronesses, Lady Scott and Lady Byford, talk to us about it? We acknowledge the problem; we have just not found the ideal solution to it.
  I come to the point made by the noble Baroness, Lady Scott. If the intention is to extinguish unused vehicular rights of way, perhaps Section 116 could provide a much better way to do that on a case-by-case basis. Shall we discuss the issue later, rather than pursue it now?
  Earl Peel: Just before the noble Lord sits down, will he answer a simple question? He said that only byways open to all traffic that were suitable for walkers would appear on the definitive map. What will happen when they become unsuitable for walkers? Will they simply be removed?
  10 p.m.
  Lord McIntosh of Haringey: The purpose of definitive maps is to record only those byways which are particularly suitable for walkers and horse riders. If a change took place and they were no longer particularly suitable for walkers and horse riders, I suppose that they would have to be removed from the definitive map. I cannot see quite how that would happen.
  Earl Peel: Perhaps it would be to do with the discussion we had earlier about vehicles.
  Lord McIntosh of Haringey: Even if they were not in good repair as a result of use by four-wheel drives, that would not take them off. The answer is that they are left on the map unless they are changed by a legal event rather than by a physical one.
  Baroness Byford: I am grateful to the Minister for suggesting that we meet. It is a huge problem. The noble Lord said that the amendment is a brave attempt. I realise that it is a brave attempt. Indeed, considering the time of night, I think it is an even braver attempt. When the noble Lord said that this might well apply to highways and all trunk roads, I thought that I might be solving at a stroke the problem of his noble friend Ken Livingstone and many other problems in towns and cities.
  Lord McIntosh of Haringey: Ken Livingstone is neither noble nor my friend.
  Baroness Byford: The former is correct. I do not quite know how that will be read in Hansard. My intention was not to have a broad-brush provision. I shall look at the Road Traffic Regulation Act. That is probably the right way to go about it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 51 [Bridleway rights over ways shown as bridleways]:
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 361:
  Page 32, leave out lines 4 and 5 and insert—

  ("(a) was immediately before 1st January 1949 either a footpath or a bridleway, and

  (b) is, throughout the period beginning with the commencement of this section and ending with the cutoff date,").

  The noble Lord said: In moving Amendment No. 361, I shall speak also to Amendment No. 362. These amendments relate to Clause 51, which provides that where a footpath is wrongly shown on a definitive map as a bridleway on commencement of the section and remains wrongly recorded until the cut-off date, bridleway rights shall be created over it. This is something of a quid pro quo for the extinguishment provisions in Clause 49.
  Amendment No. 361 clarifies the intention that, to be consistent with Clause 49, Clause 51 should apply only to those highways which were footpaths or bridleways immediately before 1st January 1949. Amendment No. 362 ensures that any existing private rights of way over the way in question shall be protected. This is also consistent with the approach taken in Clause 46(1). I beg to move.
  Lord Glentoran: Is the noble Lord speaking to Amendment No. 363? I do not see it in the groupings list.
  The Deputy Chairman of Committees (Lord Skelmersdale): If it will help the Committee, Amendment No. 363 was spoken to with Amendment No. 311.
  Lord McIntosh of Haringey: I am grateful to the Deputy Chairman for his totally objective and professional assistance in this matter.
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 362 and 363:
  Page 32, line 15, at end insert —
  ("( ) Any right of way over a way by virtue of subsection (1) is subject to any condition or limitation to which the public right of way on foot over that way was subject on the cut-off date.").

  Page 32, line 28, leave out from ("52") to end of line 30.
  The noble Lord said: Amendment No. 362 was spoken to with Amendment No. 361 and Amendment No. 363 with Amendment No. 311. I beg to move.
  On Question, amendments agreed to.
  Clause 51, as amended, agreed to.
  Clause 52 [Cut-off date for extinguishment etc.]:
  Baroness Byford Baroness Byford moved Amendment No. 364:
  Page 32, line 32, leave out ("2026") and insert ("2016").
  The noble Baroness said: The amendment deals with the bringing forward by 10 years of the cut-off date for the definitive map. At present, owners or potential purchasers of property cannot be certain whether their land is crossed by rights of way that are yet not shown on the definitive map. Routes not used in living memory, which may be of little or no value for recreation, can be claimed. When those claims are made, often the historical or user evidence is unclear. Neither the landowners, the user, nor the highway authorities may know the status of the route, or indeed if it carries any public rights at all. Conflict can ensue.
  The benefit of a cut-off point for the use of historical or user data is that this uncertainty and source of conflict for all parties would be removed. User groups are correct in arguing that a source of public rights of way will be lost, but the benefit to the wider public of the ways claimed is often minimal. Furthermore, historically, public routes have come into being to get from point A to point B, not for public recreation. Where there is a need, using the modern criteria, for a right of way, this can often be created by agreement or by order along the most suitable route for users as well as for landowners.
  The inclusion of a cut-off date for definitive maps was a welcome improvement made to the Bill at Report stage in the House of Commons, although any date which prevents claims relating to the alleged historical routes—which are often unsuitable today—would also be welcomed. A date of 20 to 30 years in the future will be seen as being of limited benefit to landowners and occupiers today—that date is a long way off. Moreover, the proposed cut-off date does not reflect the Government's original proposals contained in their first consultation paper. There it was agreed that an accurate legal record of rights of way was important. However, it argued,
  "The longer the time taken to complete the historical record, the more the uncertainty for user and landowner and the fewer the resources for creating new and alternative rights of way".
  Originally a term of 10 years was suggested as the period during which all outstanding claims made solely on the basis of historical evidence should be made. Providing in the Bill a period of 25 years more than doubles that initial response and does little to reduce the uncertainty which the Government wish to remove. I suggest that we need to solve the contentious issues which surround the existence and status of public rights of way. This can be done only if the Government stand by their initial proposal for a shorter period rather than allowing this issue to drift on for another quarter of a century.
  The amendment would provide a cut-off date 15 years from the commencement of the Bill. It allows an additional five years beyond the Government's original suggestion to research and submit modification orders, thereby responding to the concerns expressed by many organisations representing the users of rights of way. However, it is
  122
  still short enough to demonstrate that the Government are determined to bring forward the date when the definitive maps can become truly definitive. I beg to move.
  Baroness Scott of Needham Market: I should say at this point that we on these Benches do not feel that we can support this proposal. We have grave concerns about the introduction of a cut-off date of any kind. It is important to understand the nature of public rights of way and how new rights of way come into being.
  If we had in place a properly funded and systematic research programme, then perhaps we could have a little more sympathy with the notion of a cut-off date. However, that is not the case. The fact that any rights of way exist at all appears to rely on the work undertaken by voluntary user groups of the kind we discussed earlier. In some places they are well established and therefore their areas are well covered by rights of way. But in other areas there are only very few such people and groups. Because of that, historic routes are being lost. Under the provisions of a cut-off date, more would be lost. Indeed, if that date is brought forward, those rights of way will be lost at an even faster rate.
  Perhaps one could take the view that it does not matter if an old route is lost. People do not walk them as much any more. Perhaps they were last used extensively 300 years ago. However, we do not take that view as regards old buildings; we treasure and nurture them. Ancient routes seem to be regarded differently, but I contest that they do matter. The route from one village to the next walked by local people for hundreds of years forms a part of the landscape. We would like to walk it in the way that people have done for several hundred years.
  There is a grave danger that with any kind of cut-off provision these routes will be lost. If, as the amendment proposes, the date is brought further forward, even more will be lost. That would be to the detriment not only of the walking public but of the heritage that we leave our children.
  Lord Kimball: I support my noble friend's amendment. It is essential that we come to an agreement about this issue, otherwise it will be hanging over us for a very long time. A period of 25 years is far too long. It is only fair to the owners and occupiers of land that we should have a date to work to. The date should be brought forward to 2016, as proposed in my noble friend's amendment.
  Lord Whitty: The aim of these clauses is to encourage local authorities to complete the historic record of rights of way in the interests of the general public and of all those who have rights of way crossing their land. The record of local authorities so far and the certainty that exists has not been good. The clauses are therefore essential if we are to achieve the overall

  123
  objective of Part II—that is, to achieve a proper and certain definition of the rights of way network which will provide certainty for land managers, for walkers and for the general public.
  The proposals in their present form and in their previous form have not proved universally popular. As the noble Baroness said, our consultation paper originally proposed a 10-year period for the submission of claims. More than 75 per cent of respondents opposed that proposal, many on principle and others on the grounds that 10 years was nowhere near long enough.
  We considered the various options, including the Countryside Commission's recommendation that individual maps should be closed only on an ad hoc basis after the historic network had been researched and recorded to a high standard against agreed criteria. We also took account of the backlog of work that already exists.
  It should be borne in mind that the Government's original proposal for a 10-year deadline related only to claims based solely on historic documentary evidence. I agree with the noble Baroness, Lady Scott, that these historic routes are vital, whether they are used or not. On the other hand, we have to find out whether there are claims to routes based on deemed dedication—that is, do people use them? In many cases it has been difficult to distinguish between the two. We therefore had to have a time period and a process which covered both types of rights of way.
  I agree that it is necessary to have a deadline on the face of the Bill, but realistically it is not possible for that deadline to be 10 or 15 years. We believe that it should be 25 years, although a number of people, including the Liberal Democrats, feel that 25 years may be too short. We believe that 25 years is the target we should work to. The task is achievable in that time, provided that priority is given to it and provided, as the noble Baroness, Lady Scott, pointed out, that the resources are allocated to it. That has not been the case in the past.
  As the issue of resources has been referred to, it would be useful to put on record that the costs and benefits of the proposals for Part II have been assessed. We estimate that the cost of Part II to local authorities would be up to £19 million per year. The department will cover those costs. The main element of local authority funding will be started probably in 2002–03 to coincide with the implementation of most of the provisions of Part II of the Bill. The figure of £19 million is not far from the local authorities' own estimate of the cost. I can commit the Government to meeting those costs, thereby underlining our commitment to ensuring that local authorities can meet the 25-year deadline. Given the complexities of the matter, the 15-year deadline referred to in the noble Baroness's amendment would not be achievable even with those resources. I hope that she will not pursue the amendment.
  10.15 p.m.
  Baroness Byford: I thank the Minister for his response. I am glad to hear his confirmation that it was the Government's original intention that the period should be 10 years. Perhaps I may address that point first.
  One matter that worries us on these Benches is that attempts to deal with issues that need tackling—and we give the Government credit for addressing them—may well not come to fruition if we do not readily acknowledge that they need tackling quickly. I understand where the noble Baroness, Lady Scott of Needham Market, is coming from. In purely political terms she would oppose any cut-off date; she would not want to see a cut-off point in 20, 30 or even 50 years' time. I respect her view, although I do not share it. I believe that I have not misunderstood the noble Baroness in saying that she would set no time limit at all.
  My concern is that, unless local authorities are given strong direction on this matter, as the noble Lord said, they will probably get round to starting it in 2002 and 2003—a further two years down the line. The difficulty that I have with not setting a timetable that is possible to achieve is that matters will be allowed to drift, as they have in recent years. Surely in this age of modern technology and support we can get to grips with this matter.
  As the Government have said clearly, and the noble Lord has just repeated—
  Baroness Miller of Chilthorne Domer: Before the noble Baroness leaves that point, it is probably wrong to attribute to ideology our wish not to see the cut-off date brought forward. It is not a matter of political ideology; it is a question of practicality. Many Conservative-run county councils have equal backlogs.
  Will the noble Baroness accept the point that, if the cut-off date is brought forward, although those footpaths that are on the map may remain footpaths, and bridleways may remain bridleways, the difficult-to-prove historic links will be lost. The point of the 75 per cent representation mentioned by the Minister featured heavily—the fact that the network would remain fragmented. It was as much the point about fragmentation as any other that came over strongly in those representations. Will the noble Baroness accept the fact that, although, as she said, it may be of limited benefit to landowners and occupiers to have a longer cut-off date, if what we are seeking is an overall improvement to the whole network, we need to be sure that it is a complete network? A longer period before the cut-off is more likely to ensure that.
  Baroness Byford: I do not necessarily agree with the noble Baroness's final proposition—that the longer one has, the more one is likely to achieve the goal. I was not making a party-political point; it was a point made by the noble Baroness's noble friend in saying that she was personally opposed to any timescale.

  125
  The thrust of my argument is that, if the Government are intending to provide money—the noble Lord mentioned a figure of £90 million—would it not be much more practical in getting things going if we keep a shorter timescale, even if more money is provided in the first instance, to achieve the goal? My fear is that year one comes, year two comes, and all local authorities, whether Conservative, Labour or Liberal, are under pressure, as I know very well. They have so many other matters with which they must deal. The Government originally sought a cut-off point after 10 years; we on these Benches feel that 25 years is too long; I should have thought that a provision for a period of 15 years, with the right finance, so that we can actually get to the base of this matter was important. I wish to test the opinion of the Committee.
  10.19 p.m.
  On Question, Whether the said amendment (No. 364) shall be agreed to?
  Their Lordships divided: Contents, 31; Not-Contents, 57.

  Division No. 2

  CONTENTS

  Allenby of Megiddo, V.

  Kingsland, L.

  Beaumont of Whitley, L.

  Luke, L.

  Blatch, B.

  Mancroft, L.

  Bridgcman, V.

  Marlesford, L.

  Bridges, L.

  Northbourne, L.

  Byford, B.

  Northbrook, L.

  Carnegy of Lour, B

  Northesk, E.

  O'Cathain, B. [Teller]

  Cope of Berkely, B.

  Palmer, L.

  Craigavon, V.

  Peel, E.

  Dixon-Smith, L.

  Roberts of Conwy, L.

  Glentoran, L.

  Selborne, E.

  Henley. L. [Teller]

  Skelmersdale, L.

  Hunt of Wirral, L.

  Strange, B.

  Jopling, L.

  Williamson of Horton, L.

  Kimball, L.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Addington, L.

  Goldsmith, L.

  Alton of Liverpool, L.

  Gould of Potternewton, B.

  Amos, B.

  Hollis of Heigham, B.

  Andrews, B.

  Hoyle, L

  Archer of Sandwell, L.

  Hunt of Kings Heath, L.

  Ashton of Upholland, B.

  Irvine of Lairg, L. (Lord Chancellor)

  Bach, L.

  Bassam of Brighton, L.

  Judd, L.

  Blackstone, B.

  Layard, L.

  Brennan, L.

  McIntosh of Haringey, L. [Teller]

  Brett, L.

  Burlison, L.

  MacKenzie of Culkein, L.

  Carter, L. [Teller]

  Mackenzie of Framwellgate, L

  Chandos, V.

  Mallalieu, B.

  Crawley, B.

  Mar and Kellie, E.

  Davies of Oldham, L.

  Miller of Chilthorne Domer, B.

  Dean of Thomton-le-Fylde, B.

  Puttnam, L.

  Desai, L.

  Ramsay of Cartvale, B.

  Dubs, L.

  St.John of Bletso, L.

  Elder, L.

  Sawyer, L.

  Falconer of Thoroton, L.

  Scott of Needham Market, B.

  Farrington of Ribbleton, B.

  Sharp of Guildford, B.

  Filkin, L

  Simon, V.

  Gale, B.

  Symons of Vernham Dean, B.

  Gibson of Market Rasen, B.

  Taylor of Blackburn, L.

  126

  Thomas of Walliswood, B.

  Watson of Invergowrie, L

  Thornton, B.

  Whitty, L.

  Wilkins, B.

  Tomlinson, L.

  Williams of Crosby, B.

  Warwick of Undercliffe, B.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  10.28 p.m.
  Baroness Byford Baroness Byford moved Amendment No. 365:
  Page 32, line 35, leave out paragraph (a).
  The noble Baroness said: This amendment aims to remove the provision which allows the Secretary of State to substitute a later, "reserve" definitive map cutoff date beyond 2026. The purpose of Part II of the Bill is to improve the rights of way network. One of these provisions closes the definitive map in order to complete the historic record. By establishing exactly what exists on the ground, further improvements can be made through creations, diversions and extinguishments to accomplish the Government's objective of providing a network which meets modern needs.
  The government proposals originally suggested a 10-year period after which the definitive map would be closed to future claims that rights of way exist on the basis of historic evidence. The Bill extends this time to 25 years. Clause 52(2) would allow a further extension of time beyond 2026. With this additional provision, doubt arises as to the Government's desire to accomplish what would be a major improvement to reduce the uncertainty behind the rights of way system.
  A cut-off date should be a date after which the rights of way cannot be added to the definitive map. It should not be a movable feast. There is a need to call a halt to the process of establishing rights of way by claims and instead to use creation agreements and orders to link up, upgrade and improve the network taking account of modern recreational and land management needs. This cannot be achieved if every time the cut-off date comes close it is moved further into the future. User groups must be encouraged to accept that it is far better to create, let us say, an additional 20,000 miles of paths in places where they are needed than to seek to establish the same additional mileage, often with scant recreational benefit by the process of a claim and counter-claim which involves disproportionate amounts of time taken in research with its associated costs. I beg to move.
  Lord Whitty: Since the noble Baroness did not like the 25-year period, I am not surprised that she does not like the ability to go beyond 25 years. It is not our intention to signal that we expect the process to go beyond 25 years.
  However, we believe that it is prudent to make provision for the period to be extended if, for example, there are specific areas where there has been a failure to deliver on the network and we would otherwise lose a significant number of unrecorded rights of way.

  127
  Rather than a general extension, it is to cover that contingency—given the history of this issue it is not an unlikely contingency—irrespective of the effort, priority and resources we are now putting into it. If this were regarded not as a general extension but one which deals with specific problems, the provision may be more palatable, at least to those who believed that 25 years was the appropriate period. I hope that the noble Baroness will not pursue the amendment.
  Baroness Byford: The Minister will not be surprised that I am not enamoured with his response. He refers to areas which may not be covered by the 25-year period. Those areas are undefined.
  I am not happy with his response. Unless the noble Lord wishes to add to what he said, I wish to test the opinion of the Committee.
  Lord Whitty: Perhaps I may clarify what I said. We are not talking about the likelihood of a general extension but the possibility that there may be one area of the country where the job has not been done effectively. To have that absolute deadline in Devon and lose a large number of unrecorded paths in that county would mean that the national map was not definitive. That is the contingency we intend to cover, not a general extension.
  Lord Northbourne: Before the Minister sits down, does he agree that the only way to obtain a complete return is to set a hard finishing date?—otherwise there will always be people who will look for the exception.
  Lord Whitty: In general, I agree. However, we know enough about the complexity of the issue to recognise that there may be difficulties even with a 25-year deadline.
  Baroness O'Cathain: Did the Minister say that he did not expect the process to go beyond 25 years, but on the other hand some flexibility was needed? Surely 25 years is an enormous length of time. In many other areas of our national activity, such as income tax returns, there are deadlines. It is not beyond the bounds of possibility. People just need to have some steel put into them to get on with it.
  Lord Whitty: Even with income tax returns, some people do not meet the deadline, despite the sanctions applied. Because of the complexity of the issue, we need some leeway. The big print is that there is a 25-year deadline, but we have to bear in mind that we have been running the requirement on local authorities for 50 years, since 1949, and most have singularly failed to do it, at least in the non-urban areas. We need a 25-year deadline, but we have to accept that some flexibility may be needed. We are putting a maximum of five years on that flexibility. I hope that noble Lords will accept that.
  Baroness Byford: The Minister has just made the case for putting the issue to the vote. I beg leave to seek the view of the Committee.
  10.35 p.m.
  On Question, Whether the said amendment (No. 365) shall be agreed to?
  Their Lordships divided: Contents, 30; Not-Contents, 56.

  Division No. 3

  CONTENTS

  Allenby of Megiddo, V.

  Luke, L.

  Blatch, B.

  Mancroft, L.

  Bridgeman, V. [Teller]

  Marlesford, L.

  Bridges, L.

  Northbourne, L.

  Byford, B.

  Northbrook, L.

  Carnegy of Lour, B.

  Northesk, E.

  Cope of Berkeley, L.

  O'Cathain, B.

  Craigavon, V.

  Palmer, L.

  Dixon-Smith, L.

  Peel, E.

  Glentoran, L.

  Roberts of Conwy, L.

  Henley, L. [Teller]

  Selborne, E.

  Hunt of Wirral, L.

  Skelmersdale, L.

  Jopling, L.

  Strange, B.

  Kimball, L.

  Williamson of Horton, L.

  Kingsland, L.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Addington, L.

  Hunt of Kings Heath, L.

  Amos, B.

  Irvine of Lairg, L. (Lord Chancellor)

  Andrews, B.

  Archer of Sandwell, L.

  Judd, L.

  Ashton of Upholland, B.

  McIntosh of Haringey, L. [Teller]

  Bach, L.

  Bassam of Brighton, L.

  MacKenzie of Culkein, L.

  Beaumont of Whitley, L.

  Mackenzie of Framwellgate, L

  Blackstone, B.

  Mallalieu, B.

  Brennan, L.

  Mar and Kellie, E.

  Brett, L.

  Miller of Chilthorne Domer, B

  Burlison, L.

  Patel, L.

  Carter, L. [Teller]

  Puttnam, L.

  Chandos, V.

  Ramsay of Cartvale, B.

  Crawley, B.

  Sawyer, L.

  Davies of Oldham, L.

  Scott of Needham Market, B.

  Dean of Thornton-le-Fylde, B.

  Sharp of Guildford, B.

  Desai, L.

  Simon, V.

  Dubs, L.

  Symons of Vernham Dean, B.

  Elder, L.

  Taylor of Blackburn, L.

  Falconer of Thoroton, L.

  Thomas of Walliswood, B.

  Farrington of Ribbleton, B.

  Thornton, B.

  Filkin, L.

  Tomlinson, L.

  Gale, B.

  Warwick of Undercliffe, B.

  Gibson of Market Rasen, B.

  Watson of Invergowrie, L.

  Goldsmith, L.

  Whitty, L.

  Gould of Potternewton, B.

  Wilkins, B.

  Hollis of Heigham, B.

  Williams of Crosby, B.

  Hoyle, L.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  10.45 p.m.
  Clause 52 agreed to.
  Clause 53 agreed to.
  Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:
  Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 365A:
  Page 60, line 33, at end insert—
  (" . After section 26 of the 1980 Act there is inserted—
  "Application for a public path creation order.
  26A.—(1) Any person may apply to a council for the area in which that land is situated for the making of a public path creation order to create a footpath or bridleway over land.
  (2) An application under this section shall be in such a form as may be prescribed and shall be accompanied by a map, on such a scale as may be prescribed, showing the land over which the public right of way would be created, and by such information as may be prescribed.
  (3) Regulations may provide—

  (a) that a prescribed fee is payable on the making of an application under this section; and

  (b) that further prescription charges are payable by the applicant if the application is granted.".").

  The noble Baroness said: This group of amendments—Amendments Nos. 365A, 381A and 402B—seeks to start to improve the network and to guard against a net loss. It seeks to widen the category of those persons who may take action to improve the rights of way network.
  Amendment No. 365A is concerned with creation because it adds, after Section 26 of the Highways Act 1980, that any person may apply to the council for a creation or diversion order. The aim of the amendment is to build on some of the success that the parish partnerships have had in involving local users and landowners in their own rights of way network. That experiment, started by the Countryside Commission, in partnership with local authorities has been extremely successful. Many agreements were reached and that paves the way for a more even-handed approach to the creation of a network.
  Amendment No. 381 A seeks to change the category of person, so that it is no longer restricted as it is on the face of the Bill, to any person being able to apply for a diversion order for the same reason. Of course, in this context, "person" may apply equally to, for example, a parish council.
  In replying to the noble Baroness, Lady Carnegy, earlier in our Committee when she asked whether there would be more or less of a network, the Minister said that of course walkers will make their claim. But, as the Bill stands, walkers cannot be very creative with other local people because they are not able to apply for creation or diversion orders. These two amendments seek to remedy that.
  Amendment No. 4028 is a consequential amendment which would remove the requirement for applicants making orders to issue certificates of their interest in the land. I beg to move.
  Lord Northbourne: I support this amendment on the principle that I believe that we should approach the rights of way network with a positive rather than a negative attitude. I shall speak on this subject at greater length on one of our later amendments.
  Lord Whitty: These amendments would give the public, or anybody, in effect, the right to make a formal request for a creation order. In most cases, those creation orders would be over someone else's land. Of course we wish to see the use of creation orders and the use of existing powers to create footpaths and bridleways and to develop new connections in order to create a whole new and clear network.
  However, the question of anybody having the right of formal application raises wider issues. There is the question of who should pay for the compensation which arises out of the public path creation order. The amendment will also allow regulations to be made about how the applicant is to be charged for the costs of the order. However, it does not appear to make provision for any other costs.
  The consultation paper which we issued last year set out the reasons for the inadvisability of giving people an express statutory right for formal application for creation orders. Public highways are for everyone's use and benefit. It is therefore more appropriate for the question whether new creation orders are needed for it to be the responsibility of the appropriate public authority.
  That is not to say that other people will not have a say in local authority strategies; they will. They can make representations to the local authority. They are involved in the consultation process on the development of the local rights of way network and can make their points to the local authority. But it should be the local authority which takes the decision to apply for a creation order when, almost by definition, that will involve more than one other landowner. I therefore have some sympathy with the need to ensure that the public in general are involved in the process. However, I do not believe that formal applications is the way to do it.
  Lord Bridges: I support the amendment. Like my noble friend Lord Northbourne, I believe in the need to extend the public rights of way network and in allowing citizens to express their view on what should be done. It is for the council to decide what to do with the application. To allow a citizen the right to suggest that a new right of way should be created seems to be democratic and the correct thing to do. I hope that the amendment will be accepted.
  Baroness Miller of Chilthorne Domer: I thank noble Lords who supported my amendment. I believe that this group of amendments is forward looking and, as the noble Lord said, in future it will be citizens who will make applications. It will not be for the local authority to be judge, jury and promoter of the rights of way network. I understand that perhaps the amendment is somewhat before its time. For that reason, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Whitty Lord Whitty moved Amendment No. 366:
  Page 61, line 8, at end insert—
  ("(3) In this section, "agriculture" includes the breeding or keeping of horses."").
  The noble Lord said: Amendment No. 366 arises from commitments given in another place to consider an amendment tabled by the Opposition Front Bench. It relates to Section 29 of the Highways Act 1980 which requires councils to have due regard to the needs of agriculture and forestry when making orders creating, diverting or closing rights of way.
  The amendment would simply extend the definition to include the keeping or breeding of horses. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 367 not moved.]
  [Amendment No. 368 had been withdrawn from the Marshalled List.]
  Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 368A:
  Page 61, line 14, at end insert —
  (" . After section 118(2) of the 1980 Act there is inserted—
  "(2A) The Secretary of State, or a council, as the case may be, shall not confirm a public path extinguishment order unless he, or as the case may be they, are satisfied that it is expedient to do so having regard to—

  (a) the relevant local highway authority's strategic objectives for their local rights of way, as set out in its rights of way improvement plan; or

  (b) any other changes to the rights of way in the area, either proposed or having been made within the last five years, and whether these would adversely affect the overall extent of the public rights of way in the area or the use and enjoyment of those rights of way by the public."").

  The noble Baroness said: Amendment No. 368A and the other amendments in this group continue the theme of trying to ensure that we do not end up with a diminished network. The purpose of the amendment is to allow an authority or the Secretary of State to take into account the wider impact of any proposed changes when determining a public path order.
  It would, for example, allow an application to be rejected if it were contrary to overall improvements set out in a rights of way improvement plan. As the law stands, and as it would if the Bill continues unamended, each application has to be decided on its own merits rather than in the setting of a rights of way improvement plan. We believe that approach to be wrong.
  We are concerned that Schedule 6 will result in a diminished network. Our amendment would allow a much wider impact of closures and diversions on the rights of way network to be taken into account. Even a small and relatively unexceptional application could be rejected because of the overall degradation in the quality of the network. I am sure that noble Lords can think of examples where a small application might result in large parts of the network being much less well connected with each other.
  In speaking to Amendment No. 368B, I shall speak also to Amendments Nos. 369A, 370, 380A, 380B and 382. These amendments would allow certain categories of landholder—now extended to horse owners—to apply to close or divert rights of way. Consequently, local authorities are likely to fast-track those changes to the network because they have to be processed within specific periods of time, whereas creation orders will be given a lower priority, thus reducing an authority's ability to implement rights of way improvement plans. Again, we feel that that could lead to a net loss of both the quantity and the quality of the network.
  Finally, Amendment No. 370 deals with the replacement of the word "four" with "twelve" in Schedule 6, and seeks to give local authorities longer in which to process applications. As it stands, the biggest outcome of the Bill will be a total gridlock in the rights of way legal and administrative processes, which are bad already. As the Bill stands, those processes are likely to become more difficult, because the Bill will introduce a firm process for landowners. That does not necessarily mean that the criteria will be satisfied on any path diverted or extinguished, but it will certainly mean that highways authorities have little discretion as to whether or not to process an application in a short timescale and reduced discretion to decline an application.
  The likely outcome is that an already over-burdened system will be completely clogged up. Applications to add missing highways to the definitive map will necessarily take much longer and a great deal more research and preparation will be required than in the case of diversions and extinguishments. Therefore they will follow a long way behind and be subject to even more delay. We feel that we already have a cut-off date. Surely local authorities could be allowed 12 months as opposed to four months, especially where we are trying to secure a more consultative process. Four months barely allows time to consult with parish councils, given the cycle of their meetings. This group of amendments seeks to guard against the network being considerably diminished. I beg to move.
  Lord Northbourne: I rise again in a sense to support the amendment. However, I have difficulty with the position of the Liberal Democrat Benches as they seem to be saying, "Yes, we want everything we can get. But we are not going to give anything". We must have both give and take if we are to move forward in improving rights of way. If I am mistaken, I apologise to the noble Baroness, Lady Miller. But if the intention is to obtain a fair balance between give and take, I support the amendment.
  Baroness Scott of Needham Market: Perhaps I can respond briefly to that remark. From the comments we have made on these Benches this evening, I can understand why the noble Lord, Lord Northbourne, makes those remarks. Our difficulty is when looking at Part II as a whole. A number of proposals, taken individually, erode some of the rights of users, but,

  133
  when taken as a whole, those proposals represent a significant erosion of rights and that is what concerns us.
  I should perhaps add at this point that we sympathise with landowners. After all, they do not all own huge tracts of land. In terms of rights of way, the term "landowner" may include someone who has a house with a right of way running through the back.
  During earlier debates, it struck me that we have a problem with the search process which people undertake when buying houses. Part I searches do not reveal the existence of a public right of way, so many people are in ignorance of the fact that one runs through their property. Many issues which are unrelated to the Bill are related to rights of way and there is an uncertainty for landowners.
  I suggest that we ought to consider a cut-off date. Whether that be 10, 15 or 25 years ahead, there will be a significant number of unresolved claims leaving landowners in uncertainty.
  11 p.m.
  Baroness Byford: I rise to express my slight concern about Amendments Nos. 368B and 369A. While we may agree that any person with an interest in the land should be able to apply for an extinguishment order, the proposal appears to go way beyond those with a legitimate local interest in the land. It could run the risk of producing continuous vexatious applications from those without direct interest in the local land about which they are objecting. Therefore, we have reservations about the amendments and wait with interest to hear what the Minister has to say.
  Lord McIntosh of Haringey: One thing the Minister must say relates to time limits. The noble Baroness, Lady Byford, mentioned her slight concern but her amendments, which have been ungrouped and must be considered separately, go entirely in the opposite direction from those tabled by Liberal Democrat Members. I wanted to talk to them altogether but they are not reconcilable.
  I shall begin by talking to Amendments Nos. 368A and 380A, because I understand the motives behind them. They relate to the power to confirm orders under Sections I 18 and 119 of the Highways Act 1980 closing or diverting footpaths and bridleways. In the first instance, the order would have to be considered in the light of the strategies in the relevant rights of way improvement plan prepared under Clause 56 of the Bill.
  The second element of the amendment would set a more difficult test for a confirming authority to assess and it is difficult to see how it would work in practice. First, a detailed balance sheet would have to be kept of all the changes made to the rights of way in a particular area and then the authority would have to evaluate the effect of all those changes and how that might affect an individual proposal.
  This could be an impossible task as the decision would have to take into account not only rights of way which could be many miles away from the footpath or
  134
  bridleway in question—for instance, at the opposite end of a large county—but also any applications for orders in the pipeline and the effects of the previous five years'-worth of public path orders in any area, including creations, diversions and extinguishments for planning and development purposes.
  However, I acknowledge the fact that the amendments seek to ensure that decisions on individual changes to rights of way are made within the context of the wider local network of which each right of way is a part. The Government are not prepared to accept both the amendments, which in our view go too far, but we are prepared to consider the first element which would expressly confirm that the objectives of an authority's plan should be a material consideration in decisions on confirming public path orders. I hope that on that basis the amendment will not be pressed.
  I turn to Amendments Nos. 368B, 369A and 3808. I should have liked to talk at the same time to Amendments Nos. 381A and 402B, which are the Liberal Democrat amendments, but the grouping does not allow that. However, I hope that I shall be able to cut short my comments on the later group.
  We have already debated Amendment No. 381A, which relates to the issues in these amendments. We have thought very carefully about who should have a right to apply for public path orders. Those who depend on their land for an income need to be able to manage their land productively to gain a reasonable economic return. Generally, the public's use of rights of way should not prevent a landowner from managing his land successfully, but we are aware that circumstances arise in which, for example, the diversion of a path is in the land manager's interests and has no significant adverse effect on the interests of the public. More rarely, there may be instances in which a path is no longer needed by the public and may, therefore, be considered for closure. The proposals in the Bill are meant to be used in just those circumstances, in recognition of reports of the difficulty that some landowners have experienced in obtaining such orders. In such cases, proposals will be considered on their merits. The public will still be able to object to closure and diversion orders and have their views heard by an inspector.
  We, therefore, believe that there is a case for making an exception to the general rule that decisions on changes to highway networks, whether footpaths and bridleways or other highways, should be for public authorities to promote. Local authorities will in any case have to consult publicly on their strategic decisions about rights of way during the preparation of the improvement plans required by Clauses 56 and 57, so there will be ample opportunity for members of the public to contribute views on changes to their local rights of way networks in addition to the opportunities which they already have under Schedule 6 to the Highways Act. I hope that on that basis this amendment will not be pressed.
  I turn to Amendments Nos. 370 and 382. These amendments relate to the period which must elapse before an applicant for a stopping up or diversion

  135
  order can apply for a direction requiring the relevant council to determine the application. The amendment would apply both to applications by land managers for orders under Sections 118 and 119 and by schools for orders made under the new Sections 118B and 119B. I acknowledge that there is a difference between the four-month period for applications for public path orders and the 12-month period which applies to applications made under the Wildlife and Countryside Act 1981 for orders modifying the definitive map. However, the Government believe that four months is an appropriate starting point within which decisions may be arrived at as to whether to make a closure or a diversion order.
  I heard the observations of the noble Baroness about consulting parish councils. In some counties there may be problems in consulting district councils. Surely, all of these matters can be done concurrently rather than consecutively. I would have thought that four months was a reasonable period. The issues to be considered are substantially different from the complex task of assessing evidence submitted in support of an application for a definitive map order. In many cases the authority may have to undertake additional research through old archives before it is in a position to decide whether there is sufficient evidence to justify adding a right of way to the map. I do not accept that local authorities will be diverted from their duty to record rights of way on definitive maps by the new provisions in Schedule 6. They should have no reason to claim lack of funds because the Government will provide additional funding for these new responsibilities. I have already given that response in answer to separate questions.
  Although we have listened carefully to the arguments, we are not convinced that the four-month period set out in the Bill is unreasonable. I hope that, on the basis of the positive answers that I have been able to give to some of the proposals in this group, the amendments will not be pressed.
  Baroness Miller of Chilthorne Domer: I thank the Minister for his reply. I particularly welcomed the positive comments of the noble Lord, Lord Whitty, about government funding, which have been repeated by the noble Lord, Lord McIntosh of Haringey. That will be a great relief to a large number of local authorities and will reduce the number of problems which arise from the four-month period. Adequate funding can work wonders.
  I understand the Minister's reasoning on land management issues. I particularly thank him for his comment that the first element of my amendments may form a material consideration. That goes a long way to meet our worst fears about Part II; namely, that it shall result in no net loss. If the result of applications can be regarded as a material consideration that will make a considerable difference, and I look forward to the Government's amendment to deal with that. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Glentoran Lord Glentoran moved Amendment No. 368AA:
  Page 61, line 14, at end insert—
  (". In section 118(2) of the 1980 Act, after "section 121(2) below" there is inserted—
  ", and having regard to the likely effect of any dedication under section 25 of this Act which is conditional on the stopping-up order being confirmed"").
  The noble Lord said: The amendment seeks to link creations to extinguishments. At present a landowner cannot with any confidence agree with an authority that he will not object to the creation of certain paths on the basis that other paths, made redundant by the creation, will be extinguished. The reason for that is that any member of the public can raise objections to a public footpath order. Given that objections may be raised to the extinguishment but not the creation, it is possible that the creation could be confirmed without the associated extinguishment. That problem does not encourage sensible modernisation of the path network by agreement; for example, to create through routes or circular routes advantageous both to the public and the landowner.
  Under Section 25 of the Highways Act 1980, a landowner can dedicate a path to the public subject to the condition that the dedication will take effect only if an associated extinguishment is confirmed. Section 25(4) states:
  "An agreement under this section shall be on such terms … or otherwise as may be specified in the agreement".
  The amendment would make it explicit that this factor could be taken into account in the decision on whether the paths should be extinguished by an order under Section 118 of the Highways Act 1980.
  The amendment would establish a further link between the creation of a new, useful path to the public in exchange for the extinguishment of an existing path of less value to the public. Wider use of such arrangements could in many cases—obviously not all—help to speed the development of a network better attuned to modern recreational land management and environmental needs.
  The existing provisions seem in theory to be flexible enough for a deal to be struck by making dedication under Section 25 dependent on a particular extinguishment. However, the amendment would improve and clarify the position.
  Perhaps I may speak also to Amendment No. 369 and to Amendment No. 381 which is to Schedule 6, both of which enable any landowner to apply to extinguish or divert paths. New Sections 118ZA and 119ZA, which grant certain landowners a right to apply for an order to extinguish or divert rights of way, are welcome. However, the right of application is available only to owners of agriculture and forestry land and land used for the breeding and keeping of horses.
  The provisions accordingly fail to respond to the legitimate needs of other landowners who have genuine grounds for wishing to close or divert rights of way across their land. Examples of owners who may, but do not necessarily, wish to seek extinguishment or diversion orders could include the owners of gardens;

  137
  land used for clay pigeon shoots; land used for shooting that is not grazed—for example, some grouse moors; land used for hang-gliding by gliding clubs or as aerodromes; land used to exercise horses—gallops, which we discussed previously; or golf courses, which were also previously discussed.
  The amendments would remove the limitation that only those owners of land used for farming, forestry or the breeding or keeping of horses may apply for an order. The amendments are understood to have the support of the Countryside Council for Wales. That was mentioned in its briefing on the publication of the Bill. I beg to move.
  11.15 p.m.
  Lord Northbourne: I rise to speak to Amendment No. 419. I understood that I was to move Amendment No. 368AA. I would not have spoken to the amendment in the same terms as the noble Lord, Lord Glentoran, and I am now rather sorry that my amendment is grouped with the Conservative amendments as they approach the issue too much from the point of view of the landowner. I shall be delaying the Committee for four or five minutes to introduce my amendment because I believe that it involves a point of principle. It is an opportunity to urge a positive approach to the improvement of the rights of way network in this country.
  The object of Amendments Nos. 368AA and 419 is to make the legal process less cumbersome and expensive in cases where all the parties have agreed to a scheme to improve a route or to create a circular walk that involves several different rights of way. It is an enormous achievement that over the past 50 years the Ramblers' Association, of which I am proud to have been a member, has preserved intact the traditional rights of way network in this country. It deserves enormous credit for doing so. But no human institution can remain in tablets of stone for ever. There is a need for change now. Has not the time come to move forward?
  People's lifestyles today are very different from those of people 50 or more years ago. Today people have cars. They walk less to get from one place to another. What members ofthe public want today, both for pleasure and for health, is to be able to enjoy circular walks which start and end near their homes or in a convenient car park. Such walks invariably include two or more rights of way. The law says that a right of way has to go from point A to point B, so a right of way cannot go in a circle. If we want to create circular walks, we have a problem of working on a system of rights of way rather than on a single right of way. We need new machinery in highway law to make it possible to make positive changes to and improve a group of rights of way when everyone agrees that such a change is desirable.
  I am confident that the Ramblers' Association will rise to that challenge. I hope that it will be prepared to take a lead with the local highway authorities in promoting and developing circular walks for the pleasure and health of all walkers. Incidentally, the
  138
  health arguments for promoting more opportunities for people to take exercise by walking in the countryside are compelling. If we reach Amendment No. 416 in the early hours of tomorrow morning, noble Lords will again hear me speaking eloquently on that subject. It is fundamentally important.
  Some local highway authorities have been successful in creating circular walks but the vast majority have not. The reason for that is clearly set out in a letter which Ireceived from the environmental health officer of my own county, Kent. He said:
  "I can confirm that Kent County Council believes that the existing legal framework can indeed be difficult and expensive, and … laborious.
  At present, developing new circular walks is dependent on utilising the existing legal framework and therefore the existing PROW"—
  public rights of way—
  "network. If links can not be made in this way, and they usually can't, alternative new routes must be found. To do so, there are three options, all of which are cumbersome, expensive and unsatisfactory … Wholesale changes, or what may be termed nationalising the network, are difficult to implement and hugely time consuming. They will attract objections … They are not a 'duty' of the Highway Authority".
  Some highway authorities have been criticised by the Commissioner for Local Administration because they have spent money on this non-duty activity rather than on activities which are statutory. The letter continues:
  "My head of Rights of Way … tells me that wholesale changes are simply not an option under present legislation, since there aren't the resources available in terms of manpower and the potentially huge legal costs that would ensue".
  The amendments to which I am speaking, and in particular Amendment No. 419, certainly would not solve all those problems, but they might represent a start.
  Amendment No. 419 would make it possible for a local highway authority to designate a coherent group of changes as an omnibus scheme. It would then be incumbent on the authority and the inspector—if one were involved—to consider the scheme as a whole rather than piecemeal. Objectors would retain the rights they hold today. If the amendment were to be adopted, it would help to simplify and speed up the process, as well as help to reduce the cost of providing circular walks. Furthermore, it would make it more likely that authorities would be willing to promote such schemes.
  I understand that the Minister has doubts about how exactly my proposals would work. I have no pride of authorship. If the Minister does not like the wording I have used in my proposals, I challenge him to bring forward other provisions which would achieve the same objectives.
  Baroness Mallalieu: I rise to support the spirit of Amendment No. 419, just spoken to by the noble Lord, Lord Northbourne. As it stands, Part II of the Bill is, to my mind, a disappointment. Indeed, the noble Lord, Lord McIntosh, spoke earlier with his usual candour. When he was asked a direct question about whether Part II would extend the bridleway and footpath network in this country at all, he was unable

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  to say that it would. One thing that the Bill ought to achieve is to increase positively access in those areas—many of them far away from open access land—where the greatest pressures are exerted and there is the greatest need for the kind of circular walks referred to by the noble Lord.
  If the proposal before us is considered to be unworkable, and even with the short amount of time available to improve this part of the Bill, I hope that the Government will come forward with or at least be receptive to truly imaginative schemes for increasing walks of this kind in areas far removed from open access land. They are desperately needed.
  A Bill of this kind probably represents a once-in-a-generation opportunity to review the bridleway and footpath network of this country. If it leaves this House in its present state, we shall have wasted that opportunity to achieve something positive.
  Baroness Miller of Chilthorne Domer: I rise briefly to say how much I endorse the spirit of the amendments and also to support much of what has just been said by the noble Baroness, Lady Mallalieu. She is absolutely right to point out that we should be seeking opportunities of this kind. It is the kind of development the public will expect to see as the result of such a dramatic legislative review of rights of way represented in the Bill.
  Lord McIntosh of Haringey: Perhaps I may observe to my noble friend Lady Mallalieu that I spoke not with candour, but rather with caution. Of course we want the provisions in Part II of the Bill to increase the amount of access for walkers on rights of way. We wish to simplify the law relating to right of way and to remove obstacles to the growth of new rights of way. However, I needed to respond to the direct question of whether I could guarantee that. I had to say that I could not guarantee that, which reflects the necessary caution expected of those who speak from this Dispatch Box. That does not mean that we are not sympathetic to any practical way of improving the situation. I gave a number of examples of ways in which we are improving the present position.
  The leading amendment in the grouping, Amendment No. 368AA, would require that, in deciding whether to confirm an order under Section 118 of the Highways Act 1980 covering the closure of a footpath or bridleway, the confirming authority should have regard to any public path creation agreement between the landowner and a local authority which is conditional on the success of the extinguishment order.
  It may be that the existence of such an agreement, conditional or otherwise, is something which the confirming authority could consider when assessing the extent to which the path would be likely to be used by the public. There could be a range of factors for the confirming authority to take into account, depending on the circumstances of each case. We do not see why special weight should be attached to the existence of a creation agreement. The tests for confirmation of
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  public path extinguishment orders made under the provisions in the Bill are the same as those under existing legislation, and for good reason: they are fair all round, adequate, rigorous and have stood the test of time. We hope that the noble Lord, Lord Glentoran, will not press the amendment.
  Amendments Nos. 369 and 381 would widen the right to apply for certain closure and diversion orders beyond a level which the Government consider acceptable. The rationale for the Bill's provisions was set out in the consultation paper, which explained that the primary objective was to overcome the difficulties experienced by land managers in obtaining diversions in the interest of the efficient management of their business, even where there was no apparent detriment to the public interest. That proposal did not go down well; half of the respondents were opposed to it. But we believe that there is a good case for a provision to assist those concerned to manage their land productively to gain a reasonable economic return.
  The scope of the provisions is drawn as widely as we believe to be reasonable. It covers all land which is used for agricultural purposes, for forestry and for the keeping and breeding of horses. The term "agriculture" as defined in Section 329 of the Highways Act includes a wide range of activities—for example, horticulture, fruit growing, use of land as market gardens and nursery grounds, seed growing, the breeding and keeping of livestock, and so on.
  In these provisions, the Government have sought to strike a reasonable balance between the interests of the public and those of people with rights of way across the land on which they depend for an income. These provisions have not been popular in all quarters and many organisations representing users of rights of way have criticised the whole of Part II of the Bill—indeed, I have heard that today—as being more concerned with closing rights of way than improving them. We do not accept that. We believe that the overall balance is about right and that it will generate improvements to the rights of way system, but we would be unwilling to extend the provisions in new Sections 118ZA and 119ZA beyond their current scope.
  Amendment No. 419 was spoken to by the noble Lord, Lord Northbourne. The amendment seeks to enable local authorities to make schemes comprising a number of public path orders—which would come to be confirmed as a whole or not at all—where the desirability of improvements to their rights of way network has been identified in their rights of way improvement plan. The noble Lord contends that this would be useful in ensuring the success of schemes for circular walks.
  I am by no means opposed to circular walks. I was brought up on the little books brought out by London Transport just before the war—threepence each, they were—which described walks around London by tube or by bus. As a child I remember going on a number of these walks. The idea that one could come back to the same place and get the bus back from Potters Bar or wherever was very attractive. However, the noble Lord's

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  suggestion sits awkwardly with the existing procedures for making public path orders, which also underpin the new public path order powers in the Bill.
  The noble Lord cited the Ramblers' Association as supporting the amendment. In my briefing from the Ramblers' Association it says that the amendment to introduce omnibus path order schemes should be resisted. The value of rationalisation schemes has been questioned by the Commissioner for Local Administration, and they have an unhappy and costly reputation. The noble Lord should go back to his advisers on that.
  The existing procedure is regarded generally as fair and open. It provides for anyone with an interest to object.
  Lord Northbourne: My expressions were more of hope than confidence.
  Lord McIntosh of Haringey: I understand that. It is important for inspectors to be independent. We do not want to restrict their powers, for instance, by preventing confirmation orders which otherwise meet the statutory requirements. We are not against the concept of circular walks, as I said, but the system works now. It is not always necessary to use order-making powers. Public footpaths and bridleways can he created by an agreement with the landowner; permissive paths, which we discussed earlier, may form links in a scheme where an owner would rather not have a permanent public right of way. Most public path orders are confirmed without the need for referral to an inspector for a decision on behalf of the Secretary of State. The existing criteria provide that when considering concurrent public path creation and extinguishment orders, an inspector may, when deciding whether to confirm the extinguishment order, have regard to the extent to which the creation order would provide an alternative right of way.
  We believe that the existing legislation provides adequately for the kind of schemes that the noble Lord. Lord Northbourne, has described, and I hope that he will not press further for a change to it.
  11.30 p.m.
  Lord Northbourne: Before the Minister sits down, I shall not press the amendment at this stage but I shall bring it back later, because, alas, I do not believe that what he is saying corresponds with the facts. I believe that I am right in saying that Kent County Council has over 300 desirable schemes pending which the present legal situation has made it too difficult and expensive to get through. I shall attempt to obtain more information about this and shall correspond with the Minister before the next stage of the Bill. However, it is part of my credentials that I am taking my work on a walking holiday between the Committee and Report stages.
  Lord McIntosh of Haringey: If that means that we shall not be able to meet and talk about the matter, I am sorry. I shall be glad to receive any representations that the noble Lord wants to make.
  Lord Glentoran: This has been an interesting debate. I was sorry that the noble Lord, Lord Northbourn, regretted that his amendment was grouped with my amendments, because in essence and in principle I agree to a large extent with what he is proposing. Our information accords with what the Minister said as regards the Ramblers' Association. We certainly understood from the briefings that we received from the association that it was not in agreement with the circular routes at all. On the other hand, other—
  Lord McIntosh of Haringey: The association is not objecting, as I understand it, to circular walks. Everyone is in favour of circular walks. The association was worried about the particular provisions for omnibus schemes.
  Lord Glentoran: I understand that. The group wants more freedom; it does not want any restrictions.
  We also understand from our briefing that a large number of people—I do not know what the percentage is, but it is quite high—want to be able to walk within five miles of their starting point and to return to it. So there is a great deal to be said for the omnibus system. We have no objections to it.
  My amendments were, again, an attempt to make it easier to structure new creations and to negotiate with landowners and land managers as regards changing the directions of footpaths, streamlining them and bringing them up to modern day requirements.
  Now that I have listened to the debate, I wonder about the amendment that I moved and clearly withdrew, and which was spoken about strongly by the noble Baroness, Lady Miller, regarding the need for a strategy on the part of local authorities. If we are to move the footpath network forward—which I believe we all want to do—someone needs to get behind it, plan it and develop a strategy in respective areas so that these proposals can begin to be made to work.
  Baroness Miller of Chilthorne Domer: I should like to clarify this point. I do not think that I have ever spoken against the rights of way improvement plans. The point I made related to open access management plans. I said that local authorities did not need another statutory plan in order to manage open land properly. I certainly have no objections to rights of way improvement plans as they are written into the Bill. I believe that it is the other plans to which the noble Lord, Lord Glentoran, refers.
  Lord Glentoran: I thank the noble Baroness for that intervention. I understand that she supports the local authorities' role in footpath planning. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 368B to 370 not moved.]
  Baroness Byford Baroness Byford moved Amendment No. 370ZA:
  Page 61, line 48, leave out ("four months") and insert ("eight weeks").
  The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 381B and 382A. Amendments Nos. 370ZA and 382A relate to the Secretary of State requiring a council to get a move on and decide on an application made by an applicant for the extinguishment or diversion of a public path. Under the Bill as it stands, the council will already have had four months in which to reach a conclusion. Under planning law councils have to respond within eight weeks to an application. This amendment is intended to reduce the confusion and/or to shorten the time taken.
  Amendment No. 381B deals with the extinguishment or diversion of footpaths. Under the Bill, the new Section 118ZA(1) to the 1980 Act will allow application for a public path extinguishment order without condition. However, new Section 119ZA(1) states that an application for a diversion order must comply with the condition that,
  "in his interests it is expedient",
  for the council to make the order. Not only is this arrangement untidy, but it also implies that the council could refuse a diversion order because an officer considered that it would be more expedient in the interests of the applicant. This is a probing amendment for the purpose of clarification. I beg to move.
  Baroness Scott of Needham Market: I do not wish to go over too much old ground in this respect, because we covered much of this argument earlier. I should just like to add to the comments made by my noble friend Lady Miller. If one is to suggest that local authorities should get a move on and put a date on the process, it seems to us to be wrong that one set of dates and parameters apply to those applying to divert or extinguish rights of way, whereas another set applies to those who seek to modify the map in terms of higher rights or for implementing a new right. That is what we cannot understand.
  We could have tabled amendments to reduce both periods to four months, but we chose to go up to 12 because of the consultations and the arguments that have already been rehearsed by my noble friend Lady Miller. From our point of view, we still have trouble understanding the inequity of the two provisions despite the Minister's earlier reply.
  Lord McIntosh of Haringey: I do not have very much more to say about Amendments Nos. 370ZA and 382A. I am sorry that my response to the attempt to lengthen the period was not entirely satisfactory. However, I hope that my resistance to the attempt to shorten the period will be less controversial. Of course, eight weeks is the time set within which to determine applications for planning permission. But there is no exact parallel with public path orders because local authorities have been encouraged to undertake consultations in order to save time in the long run.
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  The point was made about parish councils and, where appropriate, about district councils, which we have to take into account.
  We believe that four months is a reasonable period to allow for consultations and for an informed decision to be made. As to planning applications, I am afraid—at least in my authority—the eight weeks' period is more honoured in the breach than in the observance. Indeed, on many occasions when planning applications come forward, you make your response and the next thing that you hear is that those concerned have asked for extra time.
  Amendment No. 381B is a different matter. Section 119 of the Highways Act 1980 enables a local authority to make an order diverting a footpath or bridleway when it is in the interests of people whose land the path crosses. Local authorities can also divert a path in the public interest. This amendment would allow a land manager to apply for a path to be diverted where he considered that it was in the public interest.
  There is nothing to prevent land managers or anyone else simply requesting a local authority to divert a path when they think that this will be in the public interest. Indeed, local authorities must consider these requests. However, the Government see no reason why the formal procedures for applications and appeal should apply to such cases. We have debated the provisions in the Bill which give land managers the right to make applications and I have explained the Government's reasoning for departing in these circumstances from the general rule that changes to rights of way should be for the responsible public authorities to initiate. The application provisions are designed to ensure that where changing a right of way would facilitate the efficient use of the land for agriculture and the other purposes set out in the Bill, and do so without an adverse effect on the wider public interest, the case is thoroughly considered.
  Amendment No. 381B would significantly widen the scope of the provisions beyond that which we are persuaded is necessary.
  Baroness Byford: I thank the Minister for his response which I shall read carefully. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Principal Deputy Chairman of Committees (Lord Tordoff): In calling Amendment No. 370A, I advise the Committee that if it is agreed to, I shall not be able to call Amendments Nos. 371 and 372 due to pre-emption.
  Baroness Scott of Needham Market Baroness Scott of Needham Market moved Amendment No. 370A:
  Page 62, leave out lines 25 to 32.
  The noble Baroness said: In moving Amendment No. 370A, I wish to speak also to the amendments with which it is grouped. This set of amendments concerns the introduction of the special extinguishment orders for the purposes of crime prevention.
  The objective of reducing crime is one which I am sure we all support. However, I have never seen or heard any real evidence to show a direct link between levels of crime and the existence of public rights of way. In rural areas it is widely accepted that rising crime levels are due at least in part to the existence of an improved road network and faster cars. They facilitate a mobility among the criminal fraternity which was undreamed of 50 years ago. No one is suggesting that we should start to close roads. In fact, in some quarters the cry is for the opposite course of action. Therefore, to suggest that public rights—many of which have been enjoyed for centuries—should be extinguished to counter a perception that they somehow abet criminals is a strange concept which I am sad to see in the Bill.
  As regards urban areas, and particularly urban fringes, public rights of way often form an important part of the off road transport infrastructure. At present we are trying to encourage the use of that infrastructure and the use of sustainable modes of travel. It seems to me that all too often where public rights of way have been developed around or sometimes even over other land, little regard has been paid to preserving their character. They have been surrounded by high walls and fences. As they are narrow and have no lighting, it is perhaps not surprising that people think that they are dangerous, even if they have no evidence to prove that. I hope that the provision of better lighting, CCTV and other such measures can be explored before paths are extinguished as once they are lost it is virtually impossible to get them back.
  I repeat that I am concerned that these provisions could be used further to erode the rights of way network and yet have no effect on crime levels. I have tabled the amendments to probe the Government's thinking on the issue. I hope that the Minister can allay the fears of those of us who think that, perhaps for spurious reasons, rights of way will be lost with no benefit to the community in terms of a reduction in crime. I beg to move.
  Baroness O'Cathain: I should like to make two points. First, there is a general feeling, particularly in country towns, that with the increased use of CCTV in car parks, shopping centres and streets, crime is moving out from those places. People feel that the increase in CCTV encourages crime to move to areas where CCTV is not used.
  Secondly, with increasing affluence in rural areas, there is more to steal in those areas. Many people have second homes in rural areas. Some cottages are now quite palatial. Many people keep pictures, works of art and various valuable items in cottages which up until relatively recently—30 or 40 years ago—were purely workmen's cottages.
  Friends involved in the legal profession in Sussex are concerned that over the next few years there might be an even greater move of crime from the smaller towns, where there is increased surveillance, into the rural
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  areas. The noble Baroness referred to the increased use of CCTV, I presume along the rights of way in rural areas. I do not think that that will be feasible.
  11.45 p.m.
  Baroness Scott of Needham Market: I was talking about rights of way around urban fringes.
  Baroness O'Cathain: I thank the noble Baroness for putting me right. I believe that we are being somewhat complacent if we think that the increasing use of rights of way could not lead to an increase of crime in rural areas.
  Lord Whitty: That exchange reminds us that we must regard the rights of way as being as much in urban as in rural areas. Therefore these provisions have to cover potential crime in both such areas.
  I agree with the noble Baroness, Lady Scott, that we should use these powers sparingly; and that we should not use the fear of crime as a general means of restricting the rights of way. Nevertheless, we have to have some powers in this area.
  I deal with Amendment No. 376. I do not think that there is much between us on the need to have measures to protect schools. Amendment No. 376, Which would set an additional test to be met before an order could be confirmed, relates only to orders closing rights of way, not diversion orders. Therefore it would allow rights of way to be diverted where they cross school premises. However, only a small minority of schools are likely to need recourse to these powers. Moreover, the Bill already contains a number of conditions to be met before an order closing a right of way may be made.
  We are not persuaded that additional tests are needed. The additional factors set out in the amendment may in some cases be difficult to apply. For example, I am not sure that whether premises predate a highway is the relevant issue. If there is a case to protect premises against crime it does not much matter whether the building was built before or after the highway was established.
  The purposes of the provisions in Schedule 6 are to deal with problems which arise now, irrespective of the provenance of a right of way. It seems sensible that they are not confined by the provenance of the right.
  The use of the separate provisions in new Sections 118B and 119B for closing or diverting rights of way to prevent crime in designated areas should never be a first option. As the noble Baroness, Lady Scott, says there are many other ways of dealing with such problems. Nor can it be easy. This requires a designation by the Secretary of State. It is not available to the local authority or the local police authority. In some areas the geography of rights of way can generate levels of opportunistic crime which may undermine policies aimed at dealing with problems of social exclusion. But they will be relatively rare and the procedure would ensure that they are used only sparingly.

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  As originally introduced, the powers provided under these clauses related only to designated urban areas. However, arguments deployed by both parties in another place persuaded the Government to widen the provisions by removing the word "urban". That is a slightly different approach from that taken in the amendment by the noble Baroness, Lady Scott. As the Bill stands, it is clear that orders may be made only in order to tackle high and persistent levels of crime in designated areas arising from use of a right of way.
  Additional tests must be taken into account by the confirming authority, such as whether an order would be consistent with any crime prevention strategy prepared under the Crime and Disorder Act 1998. The option of diversion rather than closure must also be considered.
  The provisions are limited and would require a pretty rigorous procedure before they could be triggered. They are there to deal with situations of high crime, high potential crime and persistent crime. It is important that people are assured that we have those powers for use when necessary.
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  This is a question of balance. The powers would be used sparingly. We believe that we have got the balance right. I hope that the noble Baroness will not pursue her amendments.
  Baroness Scott of Needham Market: I am grateful for that reply and take some comfort from the fact that the measures will be a last resort and that there are a significant number of tests to be gone through. However, I remain a little concerned that the existence of the provisions in the Bill helps to generate a perception that there is a link between public rights of way and crime, which is far from proven. However, I take some comfort from the Minister's remarks and with that I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Farrington of Ribbleton: I beg to move that the House do now resume.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.
  House adjourned at ten minutes before midnight.

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